Filed 11/25/20 Colbert v. Mardel Realty and Loans CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SONJA COLBERT, individually and
as trustee, etc., et al.,
Plaintiffs and Appellants, A159409
v. (Contra Costa County
MARDEL REALTY AND LOANS, Super. Ct. No. MSC19-00744)
INC. et al.,
Defendants and Respondents.
Sonja Nicolle Colbert, in her personal capacity and as trustee for the
Sonja Nicolle Colbert Living Trust, appeals from the denial of her special
motion under Code of Civil Procedure section 425.16 (the anti-SLAPP
statute)1 to strike the cross-complaint filed by respondents Mardel Realty and
Loans, Inc. (Mardel) and Doris De Leon. Colbert also challenges the trial
court’s order awarding $4,500 in attorney fees to respondents. The trial court
determined that Colbert had not demonstrated that the cross-complaint
allegations arose from activity protected under the anti-SLAPP statute. We
conclude that the cross-complaint is based entirely on Colbert’s petitioning
All further statutory references are to the Code of Civil Procedure
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unless otherwise indicated. “SLAPP” refers to a “strategic lawsuit against
public participation.”
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activity and that respondents’ claims are devoid of merit. We therefore
reverse the trial court’s orders and direct the court to enter a new order
granting Colbert’s anti-SLAPP motion. The matter is remanded for a
determination of prevailing party attorney fees and costs to Colbert under
section 425.16, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
In December 2018, respondent Doris De Leon, a real estate agent
working for respondent Mardel, represented Miao Lan Lana Yu in a failed
home purchase transaction with Colbert. Yu made a written offer to
purchase a home in Hercules from Colbert for $1.1 million. The offer was
accepted and Yu paid $10,000 in consideration for the agreement. Yu
provided a loan preapproval letter for $880,000 along with a Wells Fargo
Bank document indicating that $226,000 in additional funding would be
provided by Harmony Beauty Med Spa and Harmony Beauty Spa
(collectively, Harmony). Yu and Harmony failed to deposit the remaining
funds into escrow for closing and the deal was never consummated.
On June 28, 2019, Colbert filed a second amended complaint against
respondents Mardel and De Leon, alleging causes of action for fraud,
negligent misrepresentation, and tortious interference with contract.2 The
complaint alleged that Yu and Harmony (Yu’s alleged alter ego) had been
under contract to purchase a property in Hercules owned by Colbert. It
alleged that respondents Mardel and De Leon misrepresented Yu’s loan
approval status and only later disclosed to Colbert that Yu had not been
preapproved for financing and had been shopping for an alternative property
2The second amended complaint asserted the same causes of action
against Yu and Harmony in addition to claims for breach of contract,
quantum meruit, and breach of the covenant of good faith and fair dealing.
Yu and Harmony have not appeared in connection with this appeal.
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while the Hercules property was in escrow. Colbert claimed she would not
have spent money improving the Hercules property and would not have
taken the property off the market in advance of the close of escrow had
respondents truthfully disclosed these material facts. Respondents’ demurrer
to the fraud cause of action was sustained without leave to amend.
In September 2019, respondents filed a cross-complaint against Colbert
for indemnity, contribution, and declaratory relief. The cross-complaint
alleged that Colbert filed an action against them for damages. It expressly
incorporated by reference all the allegations of the second amended complaint
and did not affirmatively allege any facts concerning the circumstances
surrounding the home purchase transaction. The cross-complaint denied the
complaint’s allegations and asserted that, should Colbert prevail on any of
her claims, respondents would be entitled to full or partial equitable
indemnity and contribution because Colbert was responsible for causing her
own alleged harm. Respondents also asserted a right to their attorney fees
and costs in the event judgment was entered against them.
On October 9, 2019, Colbert filed a motion to strike the cross-complaint
under the anti-SLAPP statute. The motion asserted that the cross-complaint
allegations arose out of her protected petitioning activity. Colbert also
argued that the cross-complaint was retaliatory because respondents’
attorney threatened to file a cross-complaint against her if she did not drop a
pending motion to compel discovery. Respondents denied that the
cross-complaint had been filed in response to Colbert’s discovery motion and
asserted they had actually threatened to file a motion for sanctions, not a
cross-complaint.
On February 10, 2020, the trial court denied Colbert’s anti-SLAPP
motion. The court concluded that the premise behind Colbert’s motion, that
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the cross-complaint had been filed in retaliation for a discovery dispute, was
an invalid basis for filing an anti-SLAPP motion. (See Kajima Engineering &
Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924
(Kajima) [“[A] cross-complaint or independent lawsuit filed in response to, or
in retaliation for, threatened or actual litigation is not subject to the anti-
SLAPP statute simply because it may be viewed as an oppressive litigation
tactic.”].) The court awarded respondents $4,500 in attorney fees after it
found her motion to be frivolous This appeal followed.
DISCUSSION
A. Applicable Legal Principles
Section 425.16, subdivision (b)(1) provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or California
Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
The purpose of anti-SLAPP motion is “to provide ‘for the early dismissal of
unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.’ [Citation.] The statute is to ‘be construed broadly.’ ” (Simmons
v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043
(Simmons).)
“ ‘We review de novo a trial court’s decision on an anti-SLAPP motion.
[Citation.] The anti-SLAPP statute requires a two-step process: “At the first
step, the moving defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them . . . . If the
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court determines that relief is sought based on allegations arising from
activity protected by the statute, the second step is reached. There, the
burden shifts to the plaintiff to demonstrate that each challenged claim based
on protected activity is legally sufficient and factually substantiated. The
court, without resolving evidentiary conflicts, must determine whether the
plaintiff’s showing, if accepted by the trier of fact, would be sufficient to
sustain a favorable judgment. If not, the claim is stricken.” [Citation.] In
making these determinations the court considers “the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.” ’ ” (Simmons, supra, 50 Cal.App.5th at p. 1043.)
B. The Cross-Complaint Arises from Protected Activities
The trial court found that Colbert failed to satisfy the first prong of the
anti-SLAPP analysis because her argument that the cross-complaint was
filed in retaliation for a discovery dispute “ha[d] no bearing on this motion.”
While the trial court was correct that a cross-complainant’s litigation tactics
are not the proper focus of inquiry under an anti-SLAPP analysis (Kajima,
supra, 95 Cal.App.4th at p. 933, fn. 7), the court failed to address Colbert’s
alternative argument that the cross-complaint itself arises from protected
activity because respondents’ causes of action are based on Colbert’s
commencement of a lawsuit against them.
For a claim to “arise from” protected conduct, it cannot merely follow
such conduct or even be triggered by such conduct. Rather, “the critical
consideration is whether the cause of action is based on” the cross-defendant’s
exercise of his or her protected rights. (Navellier v. Sletten (2002) 29 Cal.4th
82, 89.) This means “the [cross-]defendant’s act underlying the
[cross-complainant’s] cause of action must itself have been an act in
furtherance of the right of petition or free speech.” (City of Cotati v. Cashman
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(2002) 29 Cal.4th 69, 78; see Mission Beverage Co., LLC v. Pabst Brewing Co.
(2017) 15 Cal.App.5th 686, 701 [“Only when the [action] that the [cross-
complainant] attacks is itself protected activity will the anti-SLAPP statute
apply.”].)
As the Supreme Court explains, “[t]ypically, a pleaded cause of action
states a legal ground for recovery supported by specific allegations of conduct
by the [cross-]defendant on which the [cross-complainant] relies to establish a
right to relief. If the supporting allegations include conduct furthering the
[cross-]defendant’s exercise of the constitutional rights of free speech or
petition, the pleaded cause of action ‘aris[es] from’ protected activity, at least
in part, and is subject to the special motion to strike authorized by section
425.16[, subd. ](b)(1).” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381–382
(Baral).)
Colbert contends she met her burden under the first prong of the
section 425.16 analysis because the cross-complaint’s causes of action are
based entirely on the lawsuit she filed against respondents. Respondents do
not dispute that section 425.16 protects all petitioning activity of a defendant,
including the filing of a complaint. (See Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115, 1117 (Briggs); § 425.16, subds.
(e)(1) & (e)(4).) Rather, they argue that their claims for equitable indemnity
and contribution do not arise from Colbert’s complaint itself but are based on
Colbert’s own prelitigation conduct in thwarting the sale of the property.
In respondents’ first and second causes of action for total or partial
equitable indemnity, respondents allege that Colbert “commenced this civil
action claiming that she sustained injuries and damages as a result of the
tortious conduct of Cross-Complainants.” The cross-complaint expressly
incorporates by reference all the allegations in Colbert’s complaint, and does
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not affirmatively allege any facts itself concerning the failed home purchase
transaction. Respondents then assert that if Colbert prevails on her claims,
respondents will be entitled to indemnity for any damages awarded in the
underlying action because “the damages alleged in the Complaint, if any,
were caused by Cross-Defendants.” Further, respondents complain that they
have been forced to incur legal fees and costs “[a]s a direct, proximate, and
foreseeable result of the claims alleged in the Complaint,” and are entitled to
be indemnified for their costs, fees, and expenses. In the third cause of action
for contribution, respondents incorporate by reference their prior allegations
and assert that they are entitled to contribution from Colbert “as a result of
any judgment or settlement awarded” in the underlying action.
As the foregoing makes clear, respondents’ equitable indemnity and
contribution claims are based entirely on Colbert’s initiation of a lawsuit
against them and the outcome of that litigation. The legal ground upon
which respondents base their equitable indemnity and contribution claims is
that Colbert filed suit against them, and if respondents are found liable in
the underlying action, Colbert should indemnify them for all or a portion of
the loss because her actions were jointly responsible for the damages caused
by the failed home purchase transaction. Respondents allege no independent
basis for seeking relief against Colbert. In other words, the cross-complaint
allegations relate to the litigation process itself and its claims are based upon
Colbert’s petitioning activity. Accordingly, we conclude that these claims
arise from an act in furtherance of Colbert’s right of petition. (Navellier,
supra, 29 Cal.4th at p. 89.)
Respondents point out that mere reference to a prior complaint is
insufficient to trigger the protection of the anti-SLAPP statute. True, certain
“ ‘[a]llegations of protected activity that merely provide context, without
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supporting a claim for recovery, cannot be stricken under the anti-SLAPP
statute.’ ” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165, quoting Boral,
supra, 1 Cal.5th at p. 394.) But we disagree with respondents’ contention
that they were referencing the second amended complaint solely to deny
Colbert’s allegations. As discussed above, the cross-complaint allegations
involve Colbert’s protected activity in filing suit and purport to support their
claims for recovery. If not for Colbert’s lawsuit against them, and
specifically, without a finding of liability against them in the underlying
action, respondents would have no basis to recover under the cross-complaint.
Respondents’ allegations about Colbert’s protected petitioning activity are not
simply incidental to their claims for recovery. (See Sheley, at pp. 1166–1167
[cross-complaint allegations that cross-defendants breached their fiduciary
duties and were negligent by “filing and maintaining a frivolous lawsuit” and
“wasting corporate assets to fund the instant litigation against [respondent]”
arose out of protected petitioning activity and were not merely incidental to
respondent’s injuries].) We conclude that appellant met her burden on the
first step of her anti-SLAPP motion to strike.
C. Respondents’ Cross-Complaint Has No Merit
Because the trial court concluded that Colbert had not carried her
burden of demonstrating that the cross-complaint arises from protected
speech or petitioning activity, it did not address the second prong of the
anti-SLAPP analysis. A cause of action that arises from protected activity is
subject to dismissal unless the plaintiff/cross-complainant establishes a
probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) A
plaintiff/cross-complainant establishes a probability of prevailing on the
claim by showing that the complaint is legally sufficient and supported by a
prima facie showing of facts that, if proved at trial, would support a judgment
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in the plaintiff’s/cross-complainant’s favor. (Taus v. Loftus (2007) 40 Cal.4th
683, 713–714.)
It is respondents’ burden to show they “stated and substantiated a
legally sufficient claim.” (Briggs, supra, 19 Cal.4th at p. 1123.) In satisfying
their burden, respondents must demonstrate that they pleaded a valid cause
of action. (Anschutz Entertainment Group, Inc. v. Snepp (2009)
171 Cal.App.4th 598, 642–643.) Based on our independent review of the
record and the applicable law, we conclude that respondents’ causes of action
for equitable indemnity and contribution are devoid of merit and require
dismissal.
i. Applicable Legal Principles
“Equitable indemnity is an equitable doctrine that apportions
responsibility among tortfeasors responsible for the same indivisible injury on
a comparative fault basis. [Citation.] ‘[T]he equitable indemnity doctrine
originated in the common sense proposition that when two individuals are
responsible for a loss, but one of the two is more culpable than the other, it is
only fair that the more culpable party should bear a greater share of the loss.’
[Citation.] A right of equitable indemnity can arise only if the prospective
indemnitor and indemnitee are mutually liable to another person for the
same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th
1153, 1176–1177, italics added.)
“ ‘The purpose of equitable indemnification is to avoid the unfairness,
under joint and several liability theory, of holding one defendant liable for
the plaintiff’s entire loss while allowing another responsible defendant to
escape “ ‘scot free’ ” [citation].’ [Citation.] A defendant ‘has a right to bring in
other tortfeasors who are allegedly responsible for plaintiff’s action through a
cross-complaint . . . for equitable indemnification.’ ” (Platt v. Coldwell Banker
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Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444, italics
added.) “ ‘ “The elements of a cause of action for [equitable] indemnity are
(1) a showing of fault on the part of the indemnitor and (2) resulting damages
to the indemnitee for which the indemnitor is . . . equitably responsible.” ’ ”
(C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)
Contribution is a creature of statute and apportions the loss equally
among several joint tortfeasors. (§ 875.) A contribution claim “requires a
showing that one of several joint tortfeasor judgment debtors has paid more
than a pro rata share of a judgment.” (14A Cal.Jur.3d Contribution and
Indemnification (2008) § 101; § 875, subd. (f); see Coca-Cola Bottling
Company v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378 [contribution
may be sought only after the rendition of a judgment declaring more than one
defendant jointly liable to the plaintiff].)
ii. The Cross-Complaint Does Not State a Viable Cause of Action
Respondents’ cross-complaint is based on the flawed premise that
Colbert can prevail against them in the underlying action and still be
considered a “joint tortfeasor” for purposes of apportionment under equitable
indemnification and contribution principles. Respondents cite no direct
authority in support of this claim. As the foregoing principles describe,
equitable indemnification and contribution claims are colorable when
multiple joint tortfeasors are responsible for damages to a separately injured
party, and one tortfeasor has paid more than his or her proportionate share of
the damages.
In Seamen’s Bank v. Superior Court (1987) 190 Cal.App.3d 1485
(Seamen’s), for example, Bank of America brought suit against its employees
for losses resulting from Bank of America’s settlement with a group of
defrauded investors. (Id. at pp. 1488–1489.) The bank alleged that the
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employees violated their duty of care in managing the investors’ transactions.
(Id. at p. 1489) The employees filed cross-complaints against the defrauded
investors, alleging that the employees were entitled to equitable and implied
contractual indemnification from the investors because the investors violated
a duty to the bank to review their investment materials and behave
prudently in connection with their investment decisions. (Seaman’s, at
p. 1490.) The trial court overruled the investors’ demurrer to the
cross-complaint. (Ibid.)
The Seaman’s court issued a peremptory writ of mandate ordering the
trial court to sustain the investors’ demurrer, holding that a defendant has
no cause of action for equitable indemnity against the victim of his own tort.
(Seamen’s, supra, 190 Cal.App.3d at p. 1492.) The court reasoned that the
investors and the bank employees were not joint tortfeasors because the
investors owed no duty of care to the bank. Moreover, the court found no
equitable basis to sustain a tortfeasor’s claim for indemnity from his victim.
(Id. at pp. 1492–1493.)
Respondents assert they are entitled to equitable indemnity based on
Colbert’s actions because she was the party that caused the purchase deal to
fall through. Respondents claim they “were making good-faith efforts to
accomplish the agreed-upon purchase, and it was Respondents’ [sic] actions—
in refusing to put motors and pumps into working order, refusing to agree to
extend the time for escrow to close, and in possibly misrepresenting the
ownership of the property at issue—that caused the purchase deal not to be
accomplished.” But as the Seaman’s court recognized, the place to litigate
Colbert’s comparative fault is in the underlying action itself, “not in an
indemnity action by [respondents] against [Colbert] under the fiction
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[Colbert] [her]self is a tortfeasor.” (Seaman’s, supra, 190 Cal.App.3d at
p. 1492.)
Jaffe v. Huxley Architecture (1988) 200 Cal.App.3d 1188, illustrates this
point. The appellate court considered whether a developer sued by a
homeowners association for construction defects could cross-complain for
equitable indemnification against the association’s board of directors for their
conduct which contributed to the damages arising from the original defects.
(Id. at p. 1191.) The Jaffe court held such a cross-complaint fails to state a
cause of action because (1) equivalent relief would be available to the
developer by way of an affirmative defense; and (2) pitting individual board
members against the association in such a cross-complaint would “jeopardize
or entangle a special relationship which strong policies dictate be preserved.”
(Id. at p. 1193.) The court observed, “equitable indemnification . . . is unwise
and unnecessary where, as here, a sensitive relationship exists between the
association and its board of directors, and when, as here, the relationship
between the parties alone will, in the resolution of the lawsuit, result in the
apportionment to defendant of only that liability for which he is responsible.”
(Id. at p. 1190, italics added.)
Respondents here can obtain the same relief through the affirmative
defenses they have raised in the underlying action. In the third affirmative
defense set forth in their answer to the second amended complaint, they
allege: “Defendants are informed and believe and thereon alleges [sic] that
Plaintiff was careless and negligent and, due to this carelessness and
negligence, proximately caused and contributed to the injuries and damages
complained of, if any. Accordingly, the pro rata share of fault of Plaintiff
reduces the recovery of damages, if any, by Plaintiff against Defendants.”
Because the underlying action will resolve whether Colbert’s negligence
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contributed to her own injuries and therefore whether any loss should be
apportioned among the parties, equitable indemnification and contribution
claims are unnecessary to provide redress to respondents. (See American
Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 588–591.)
Respondents also argue that under comparative equitable indemnity
principles, an intentional tortfeasor may obtain indemnity from a concurrent
intentional tortfeasor, citing to Baird v. Jones (1993) 21 Cal.App.4th 684,
688, 693. In Baird, the trial court allowed one defendant to seek equitable
indemnification from another more culpable defendant where both
defendants had been found liable for making negligent and intentional
misrepresentations. (Id. at pp. 687, 693.) Baird is inapposite. Here, Colbert
is not a codefendant or concurrent tortfeasor; she is plaintiff in the
underlying action. Respondents have identified no authority which would
permit a tortfeasor to seek equitable indemnification or contribution from the
victim of their wrongdoing.
As the authorities makes clear, “an action for equitable indemnity is
premised upon a joint legal obligation to another for damages.” (Children’s
Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787). “[Respondents’]
equitable indemnity claim lacks the essential element of common liability to
an injured person. ” (Ibid.). Accordingly, respondents have failed to carry
their burden of demonstrating that the cross-complaint has minimal merit.
D. Colbert Is Entitled to Attorney Fees
Section 425.16, subdivision (c)(1) provides that “a prevailing defendant
on a special motion to strike shall be entitled to recover his or her attorney’s
fees and costs.” “Under this provision, ‘any SLAPP defendant who brings a
successful motion to strike is entitled to mandatory attorney fees.’ ” (Mann v.
Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 338.) As the
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prevailing party on her anti-SLAPP motion, Colbert is entitled to mandatory
attorney fees under section 425.16, subdivision (c).
DISPOSITION
The orders denying Colbert’s section 425.16 motion and awarding
attorney fees to respondents are reversed. The trial court is directed to enter
a new order granting Colbert’s anti-SLAPP motion. The matter is remanded
to the trial court to determine an attorney fee award to Colbert as the
prevailing party under section 425.16, subdivision (c). Colbert shall recover
her costs on appeal.
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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Margulies, Acting P. J.
_________________________
Banke, J.
A159409 Colbert v. Mardel Realty and Loans, Inc.
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