Filed 11/5/21 Allen v. Wells Fargo Bank CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DEVRA ALLEN, B306815
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV18719)
v.
WELLS FARGO BANK et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Devra Allen, in pro. per, for Plaintiff and Appellant.
Snell & Wilmer, Michele Sabo Assayag, Joshua K.
Partington for Defendants and Respondents.
INTRODUCTION
This anti-SLAPP case is the latest in a decade-long line of
litigation relating to a real property located at 6150 Shenandoah
Avenue in the Ladera Heights neighborhood of Los Angeles, and
the personal property located within that residence. According to
a statement of decision in a previous litigation, Ivan Rene Moore
or one of his corporations purchased 6150 Shenandoah in the
mid-1990s, and operated a music business from the residence.
The title to 6150 Shenandoah was later transferred to Ronald
Hills, who worked with Moore and held the property in trust for
the benefit of Moore’s corporations. Moore met Kimberly Martin-
Bragg, who lived next door; the two became romantically involved
and began living together. Martin-Bragg bought 6150
Shenandoah in 2004; she rented it to Moore, who continued to
use the property for his music business. Moore and Martin-Bragg
had separated by 2011, and Martin-Bragg evicted Moore from
6150 Shenandoah.
Some of Moore’s personal property was left at 6150
Shenandoah when Moore and Martin-Bragg separated, including
the equipment in Moore’s recording studio. In a previous
litigation, a jury held that Martin-Bragg improperly converted
some of this personal property when she evicted Moore.
However, around the same time, Moore and his companies
defaulted on a loan held by Wells Fargo. Wells Fargo obtained a
judgment of replevin in federal court that allowed it to collect
certain personal property that had been pledged as collateral for
the loan. Working with the U.S. Marshal and with the
cooperation of Martin-Bragg, Wells Fargo collected Moore’s
property from 6150 Shenandoah, including a motorcycle, a piano,
computers, and various recording studio equipment, and
2
arranged to sell the property at auction. Wells Fargo proved to
the federal court’s satisfaction that the replevined property
belonged to Moore.
Moore has challenged Martin-Bragg’s actions and Wells
Fargo’s entitlement to the replevined property so vigorously that
he has been named a vexatious litigant in the Los Angeles
Superior Court (LASC); the United States District Court, Central
District of California (Central District); and the United States
Bankruptcy Court. After Moore’s numerous lawsuits were
unsuccessful and the vexatious litigant orders required Moore to
post significant bonds before suing again, Ronald Hills—who once
held the title to 6150 Shenandoah—filed suit against Wells Fargo
and others, alleging that some of the replevined property was
actually his. The defendants in that action successfully struck
Hills’s complaint with an anti-SLAPP special motion to strike
under Code of Civil Procedure section 425.16, 1 and the decision
was affirmed on appeal.
In the instant case, appellant Devra Allen also sued Wells
Fargo and others, contending that some of the replevined
property was hers. Again, respondents Wells Fargo Bank, N.A.;
Asset Reliance, Inc.; Craig Hansen; and Edward D. Testo (the
bank defendants) successfully struck the complaint with an anti-
SLAPP motion under section 425.16. The superior court held
that the bank defendants’ actions were protected activity under
section 425.16, and Allen failed to demonstrate a probability of
1“SLAPP” stands for “strategic lawsuits against public
participation.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7
Cal.5th 133, 139.) All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
3
prevailing because her claims were barred by issue preclusion
and judicial estoppel.
We affirm. Under the first step of the anti-SLAPP
analysis, the bank defendants’ actions in collecting on the
replevin judgment were protected activity. Under the second
step of the anti-SLAPP analysis, Allen cannot show a probability
of prevailing because she has not provided a record on appeal
sufficient to make such a finding, and the record before us
supports the court’s determination that Allen’s claims are barred
by issue preclusion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous litigation2
1. Unlawful detainer, quiet title, and conversion of the
personal property
In April 2011, Martin-Bragg filed an unlawful detainer
action against Moore, alleging that Martin-Bragg owned 6150
Shenandoah, Moore was a tenant there, he had not paid rent
since October 2010, and he owed Martin-Bragg over $50,000 in
past-due rent. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th
367, 371.) This case was assigned LASC case number BC459449.
Moore alleged in his answer “that he and Martin-Bragg had been
longtime domestic partners; that the property at 6150
Shenandoah Avenue is rightfully owned by Moore, a few
corporations he uses in his music business, and Ronald Hills, the
corporations’ secretary; that the property had been in his family
2 Much of the information summarized here is gathered
from the documents the bank defendants submitted with their
requests for judicial notice in the superior court. As discussed in
Discussion section A, infra, on our own motion we judicially
notice those documents on appeal.
4
long before his relationship with Martin-Bragg; that title to the
property had been held by Mr. Hills, and the property had been
used by Moore over the years as collateral for business loans of
over $5 million; and that in 2004 Mr. Hills had transferred title
to Martin-Bragg in trust as a business arrangement for the
benefit of Moore and his corporations, not for Martin-Bragg's
personal use or benefit.” (Martin-Bragg v. Moore, supra, 219
Cal.App.4th at p. 371.)
On June 20, 2011, Moore filed a complaint seeking quiet
title to 6150 Shenandoah and other causes of action; this case
was assigned LASC case number BC464111. (Martin-Bragg v.
Moore, supra, 219 Cal.App.4th at p. 372.) The unlawful detainer
court denied Moore’s request to consolidate the two cases, and
eventually entered judgment for Martin-Bragg in the unlawful
detainer case, BC459449. (Id. at p. 372, 382-383.)
Our colleagues in Division One of this District reversed the
unlawful detainer judgment, holding that “the trial court abused
its discretion in refusing Moore’s request to consolidate the
unlawful detainer and quiet title actions for trial and that Moore
was prejudiced by being forced to litigate the complex issue of
title to the property under the summary procedures that govern
actions for unlawful detainer.” (Martin-Bragg v. Moore, supra,
219 Cal.App.4th at pp. 370-371.) Resolution of the unlawful
detainer case following remand is not entirely clear in the record
on appeal; a court order from a later litigation stated that
Martin-Bragg dismissed the unlawful detainer case following
remand.
On December 20, 2011 Moore and Hills filed another action
for quiet title against Martin-Bragg and others, LASC case
5
number BC475551. The case was consolidated with Moore’s
earlier quiet title case, BC464111.
On March 2, 2012, Moore filed a case for trespass to
chattel, conversion, negligence, and damages under Civil Code
section 19653; this case was assigned LASC case number
BC480013. The case was deemed related to BC464111. On May
2, 2012, Moore filed another action against Martin-Bragg for
rights stemming from their domestic partnership; this case was
assigned LASC case number BC483652. The case was
consolidated with Moore’s earlier conversion case, BC480013.
On October 9, 2012, the superior court in BC464111, the
quiet title action, declared Moore a vexatious litigant under
section 391.
Moore’s claims against Martin-Bragg for trespass to
chattel, conversion, and Civil Code section 1965 in case
BC480013 (consolidated with BC483652) were tried to a jury in
July 2013. The jury found that Martin-Bragg improperly
maintained possession of Moore’s “clothing, shoes, kitchen
equipment, and other personal property”; a piano; “[o]ne or more
of the following: automobiles, 1 motorcycle, auto tools, auto
parts”; “Recording console SSLK”; “Music, Sound, and Recording
Equipment”; “Musical Instruments”; and “Masters.” In
determining damages, the jury determined that the fair market
value of Moore’s personal property was $2.5 million, and his lost
profits amounted to $650,000. The jury recommended that the
damages award be reduced by $2.5 million if Martin-Bragg
3 Civil Code section 1965 prohibits a landlord from refusing
to surrender a tenant’s property that has been left on the
premises.
6
returned Moore’s personal property. An interlocutory judgment
was entered in November 2013. The court noted that the
judgment was interlocutory “due to the bifurcation of pending
causes of action unrelated to Plaintiff’s personal property.
However, the judgment is enforceable.” 4
A six-day bench trial commenced on October 5, 2015 for
some of the remaining claims in BC475551 and BC464111, the
consolidated quiet title actions. In its statement of decision, the
court found that “Martin-Bragg was credible and truthful, while
Moore and Hills were not.” The court continued, “The testimony
by Moore and Hills was unconvincing, frequently misleading, and
often appeared to be deliberately untruthful. The Court has no
confidence in their testimony or version of the facts. Moore and
Hills represented themselves during trial, and their lack of
personal credibility has infected all of their evidence.” The court
found that documents purporting to transfer 6150 Shenandoah
from Martin-Bragg to Moore, Moore’s companies, and Hills were
fraudulent. The court quieted title to 6150 Shenandoah in favor
of Martin-Bragg, and canceled the fraudulent transfer
documents. The court found in favor of Martin-Bragg on all of
Moore’s and Hills’s claims. Division One of this court affirmed
the judgment. (Moore v. Martin-Bragg (Oct. 25, 2019, B272445)
[nonpub. opn.].)
In April 2016, Moore’s remaining causes of action in the
conversion action, BC480013, were dismissed with prejudice as a
4In March 2014, Martin-Bragg filed for chapter 11
bankruptcy in the United States Bankruptcy Court, Central
District of California. The court dismissed the action in June
2015.
7
terminating sanction. The court found that in several different
cases, Moore had used “false, fraudulent and forged documents”
including quitclaim deeds, a power of attorney, an affidavit, a
real estate counter-offer, a lis pendens, and a trust deed. The
court also stated that Moore had argued contradictory facts
supported by conflicting evidence, “choosing whatever version of
the facts suits his purposes at the time.” The court stated,
“Moore’s conduct has been serious and deliberate. He has
manufactured false evidence in the present case against Martin-
Bragg, an earlier case against Martin-Bragg, and a third case
against an unrelated party. Moore and his co-party Ronald Hills
have interfered with the presentation of evidence and defied a
lawful court order to provide a necessary fingerprint comparison.
Moore has caused altercations at a deposition and in court
proceedings, such that a bailiff is necessary to preserve order.
Moore has filed repeated statements of disqualification on the
same grounds, without seeking appellate review. And he has
repeatedly made disrespectful references to the trial Judge and
other Judges of the Superior Court, as well as opposing counsel.
These actions are not a mere slight or irritation; they seriously
interfere with the proper functioning of the judicial process.”
In May 2016, the court entered final judgment in the
consolidated conversion and domestic partnership actions,
BC480013 and BC483652. The judgment included damages from
the jury verdict in favor of Moore against Martin-Bragg for
$3,150,000, and dismissal of all of Moore’s additional claims as a
terminating sanction. Our colleagues in Division Five of this
District affirmed the judgment. (Moore v. Martin-Bragg (Sept. 8,
2017, B276366) [nonpub. opn.].)
8
2. Federal litigation, including Wells Fargo’s breach of
contract action and other parties’ bankruptcies
Meanwhile, Wells Fargo sued Moore and three of Moore’s
companies for breach of contract, replevin, and foreclosure in the
United States District Court, Eastern District of Wisconsin,
apparently resulting from a loan default. The record on appeal
includes only the May 11, 2015 judgment, and no other
information about the case. We will refer to this as the replevin
judgment.
The caption page of the replevin judgment listed Moore as
both a defendant and a third-party plaintiff; the list of third-
party defendants included Martin-Bragg. The court entered
judgment “in favor of the Plaintiff Wells Fargo Bank, N.A. and
against the Defendants Rufftown Entertainment Group, Inc.,
Radio Multi Media, Inc., Rene Moore Music, Inc., and Ivan Rene
Moore on Wells Fargo Bank, N.A.’s claims for breach of contract
(Count I and II), replevin (Count III), and foreclosure (Count IV),
in the sum of $7,106,037.28.” Default was entered against all
defendants except Moore. The court awarded Wells Fargo costs
and fees “as provided for in the loan documents.” The judgment
allowed Wells Fargo to foreclose upon two properties in
Milwaukee “known as the Radio Station Properties,” and to
“replevin the intangible property, personal property, royalties,
profits, and other collateral pledged by the defendants.” Moore’s
counterclaims were dismissed, and his third-party complaint was
dismissed “as frivolous.” Wells Fargo then filed a notice of
judgment lien against Moore and the other defendants with the
California Secretary of State.
In September 2016, Martin-Bragg filed for chapter 7
bankruptcy. In December 2016, Wells Fargo moved for relief
9
from the automatic stay, stating that it had a perfected security
interest in certain personal property based on the replevin
judgment. The personal property at issue included a vehicle and
the “personal property of Ivan Rene Moore, Radio Multi-Media,
Inc., Rufftown Entertainment Group, Inc., and Rene Moore
Music, Inc.”
Moore opposed Wells Fargo’s motion in Martin-Bragg’s
bankruptcy, stating that “issues regarding this subject property
are on appeal at the California Court of Appeal.” Moore argued
that the property at issue did not belong to Martin-Bragg, and
therefore the bankruptcy court did not have jurisdiction over it or
any issues regarding its ownership. Moore also stated that “some
of the property listed” belonged to “other persons and corporate
entities not related to [the] Wells Fargo purported loan.” Moore
stated that the property was owned by “the Moore family, Ronald
Hills Solid State Logic,” and “others.” Hills also submitted a
declaration stating that “[a] large amount of the property listed is
in fact my property not Mr. Moore’s.” The bankruptcy court
granted Wells Fargo’s motion in January 2017.
In February 2017, Wells Fargo filed a request for a writ of
execution relating to the replevin judgment in the Central
District; we will call this the collection action.5 In March 2017,
Wells Fargo filed an ex parte request for an order instructing the
5There appear to be two different case numbers associated
with Wells Fargo’s collection of the replevin judgment in the
Central District: CV-2:16-MC-0093 and 2:17-CV-02312-VAP-
JEM. The request for an order to levy was filed under one case
number, while the order granting the request and the documents
thereafter bear a different case number. The reason for the
change is not apparent in the record.
10
U.S. Marshal to levy upon the personal property of the judgment
debtors located at 6150 Shenandoah. The request stated that
Martin-Bragg was willing to cooperate with the U.S. Marshal to
remove the property from the residence. On March 27, 2017, the
Central District granted the request, and ordered the U.S.
Marshal to “levy upon any and all personal property listed in the
document attached hereto as Exhibit ‘2,’” located at 6150
Shenandoah and belonging to Moore or his companies. (Exhibit 2
is not included in the record on appeal.)
On June 8, 2017, Wells Fargo filed a notice of levy in the
collection action, stating that in April 2017, the U.S. Marshal
“levied upon the personal property of Judgment Debtors in
accordance with” the court’s order. An 11-page list of the
property collected was attached to the notice; it included studio
recording equipment, CDs, paperwork, master recordings, and a
motorcycle. No personal effects such as clothing or jewelry were
included on the list.
Wells Fargo also filed a motion seeking an order to sell the
judgment debtors’ personal property. Wells Fargo said it had
compiled a “list of certain items of personal property which it
believes can be sold in a commercially reasonable manner
through a noticed auction.” Well Fargo intended to have Asset
Reliance, Inc. administer the auction.
Moore filed a request to vacate the levy order, which the
court denied. Hills also filed oppositions and a third-party claim,
stating that in LASC case BC480013, a “[j]ury found and ruled
that the recording property (West Viking Recorders) belongs to
Hills,” and that Moore “had the right to possess” the property but
was not the owner. (Notably, neither the interlocutory judgment
nor the final judgment in case BC480013 suggests any findings
11
relating to Hills’s ownership of property.) Hills also stated that
he owned “the majority of the subject properties seized by Wells
Fargo.” A party named “AC Cotton” also filed a third-party claim
in the collection action requesting “release of all of his personal
properties” from Wells Fargo. Cotton stated that he “stored and
placed his personal properties which are the subject of this
litigation in possession or custody of Mr. Moore at the
Shenandoah property,” and Wells Fargo was currently in
possession of the property.6
The Central District ultimately denied the oppositions and
third-party claims, but required Wells Fargo to “file an inventory
of items seized at [Martin-Bragg’s] residence and a verification
that the only items seized are those on the list in Exhibit 5 of the
Request for Judicial Notice . . . . Wells Fargo also must submit a
brief and documentation regarding ownership by the judgment
debtors of the items seized.” The court noted that “the
declarations of third parties who claim to own the subject
property are deficient or irrelevant. . . . Mr. Hills and Mr. Cotton
claim to be the owners of some of the personal property at issue
but only identify one or two items each and do not present any
documentary, admissible evidence that they own any of the
property. Moore mentions other people that purportedly own
some of the property but presents no declarations or proof from
these other people, named and unnamed.”
6The property Hills claimed was his included a 1969
Camaro, computers and software, speakers, microphones, tapes
and masters, keyboards, and other recording equipment. The
property Cotton claimed was his included a piano, a motorcycle,
computers and software, tapes and masters, a keyboard, and
other recording equipment.
12
On June 16, 2017, Wells Fargo filed an “inventory and
verification of items seized,” which stated that Wells Fargo had
“reviewed the Collected Property and confirmed that all of the
personal property collected is personal property of the Judgment
Debtors, and, further, was an Authorized Item of personal
property listed for seizure in the Order re: Levy.” The inventory
and verification included a table listing the items seized, with
references to a request for judicial notice and declaration of
Martin-Bragg for each item. Martin-Bragg stated in her
declaration that to the best of her knowledge, “the Collected
Property levied and seized on April 20, 2017, was owned by
Judgment Debtors.” 7
The Central District found on June 27, 2017 that “Wells
Fargo complied with the Court’s June 8, 2017 Order by filing the
requested inventory and verification (Dkt. 37) supported by a
Request for Judicial Notice (Dkt. 38) and a declaration. (Dkt.
39).” The court issued an order allowing for the sale of the
property and allowing Asset Reliance to administer the auction.
Moore appealed the orders issuing writs of execution, and the
Ninth Circuit Court of Appeals affirmed, stating, “The district
court did not clearly err in determining that the items levied
upon by the U.S. Marshal were the personal property of Moore or
his companies.” (Wells Fargo Bank, N.A. v. Rufftown
Entertainment Group, Inc. (9th Cir. 2018) 719 Fed.Appx. 664.)
3. Litigation against Wells Fargo
Hills, in propria persona, filed a verified complaint in the
Central District in May 2017 against Moore, the U.S. Marshal,
7 As discussed in Discussion section A, infra, we grant
Allen’s request for judicial notice of this document.
13
and most of the defendants named in the instant action: Wells
Fargo; Asset Reliance; Craig Hansen, a Wells Fargo employee;
Edward D. Testo, an Asset Reliance employee; and George
Barbour, Kimberly Martin-Bragg’s spouse. Hills alleged 10
causes of action including a violation of 42 United States Code
section 1983, violations of constitutional rights, conversion, and
intentional and negligent interference with prospective economic
advantage. Hills alleged that he and Moore “were and are
colleagues and business associates in various businesses,
opportunities and ventures, including but not limited to music
production, recording, managing, leasing, investing, and other
business opportunities.” Hills alleged that after Martin-Bragg
evicted Moore from 6150 Shenandoah, she and Barbour refused
to return Hills’s property to him. Hills alleged that Asset
Reliance, as an agent of Wells Fargo, had possession of the
property. He asserted that the parties conspired to deprive him
of his property, and requested more than $300 million in
compensatory damages, plus punitive damages. In June 2018,
the Central District granted the defendants’ motions to dismiss
for failure to state a federal claim upon which relief can be
granted and lack of jurisdiction over the remaining state claims.
(See Hills v. Wells Fargo Bank, N.A. (C.D. Cal., June 28, 2018,
CV 17-3373 MWF (FFM)) [nonpub. opn.].)
Moore, in propria persona, filed a similar verified complaint
in the Central District on June 30, 2017 against the U.S.
Marshal, Wells Fargo, Asset Reliance, Hansen, Testo, and
Barbour.8 Moore alleged that he and Hills operated “various
8This was not Moore’s first federal case involving this
matter. Moore filed a complaint against Martin-Bragg, several
14
businesses, opportunities, and ventures” from “a multi-million
dollar music production studio located in Mr. Moore’s and Mr.
Hills’ home and office” at 6150 Shenandoah. Moore argued that
much of the property used in the businesses was not subject to
the replevin judgment, and therefore the defendants improperly
seized the property. Moore requested more than $480 million in
damages.
In May 2018, the Central District declared Moore a
vexatious litigant and dismissed his case. In the order, the court
noted that “the issue of [Moore’s] ownership of the personal
property at issue here already ha[s] been resolved against him
repeatedly in several prior actions and, thus, is barred from re-
litigation in this case by the doctrine of res judicata. [Moore’s]
attempt to avoid the res judicata effect of these prior lawsuits by
proffering here factual assertions that directly contradict those
he made in the prior lawsuits, not only is ineffective to avoid the
res judicata doctrine but raises substantial concerns under Rule
11 of the Federal Rules of Civil Procedure.”
Moore filed a voluntary chapter 11 bankruptcy petition on
August 3, 2017; the bankruptcy court later converted Moore’s
case to chapter 7. In the same case, Moore commenced an
adversary proceeding in November 2017 by filing a complaint
alleging 15 causes of action against Wells Fargo, Asset Reliance,
Hansen, Testo, Martin-Bragg, Barbour, and others. Moore
sought $531 million in damages. Moore later dismissed his
LASC judges, and others on October 13, 2015. (See Moore v.
Rosenblatt (C.D. Cal., Apr. 19, 2016, 2:15-cv-08021-ODW-GJS).)
This action was dismissed, and the Ninth Circuit Court of
Appeals affirmed the dismissal. (Moore v. Rosenblatt (9th Cir.
2019) 749 Fed.Appx. 604.)
15
adversary complaint, but the court retained jurisdiction to
consider sanctions.
In June 2020, the bankruptcy court deemed Moore a
vexatious litigant. In its order, the court noted that the
“Complaint in this adversary proceeding is the fourth time Moore
has alleged claims against Wells Fargo challenging the validity of
a Wells Fargo Loan or challenging the validity of a $7.1 million
judgment entered against him in favor of Wells Fargo following a
default on that loan.” The court also stated, “Before the filing of
his Complaint in this adversary [proceeding] on November 3,
2017, Moore had filed ten complaints, counterclaims or third-
party complaints, in pro se, in the United States District Court
for the Eastern District of Wisconsin, the United States District
Court for the Central District of California and in this Court.”
The bankruptcy court stated, “Moore is a vexatious litigant
having repeatedly filed meritless claims to harass Wells Fargo
and delay its collection efforts.”
On July 13, 2018, Hills filed a complaint in LASC against
Moore, Wells Fargo, Asset Reliance, Hansen, Testo, Martin-
Bragg, Barbour, and the U.S. Marshal; it was assigned LASC
case number BC713791. On July 18, 2018, Hills filed an ex parte
application seeking a temporary restraining order to prevent
Wells Fargo from selling what he claimed was his property.
In support of Hills’s request, the plaintiff/appellant in the
instant case, Devra Allen, submitted a declaration dated July 17,
2018 stating that she had worked “at the studio” at 6150
Shenandoah, where she and others “maintained the books and
records regarding the purchase of the subject property.” Allen
further stated, “The property listed for sale via auction is the
same property that is or was at the 6150 Shenandoah property
16
that belongs to Mr. Hills. . . . There were also more property
items that are not shown for auction sale that were purchased by
Hills.” A second request for a temporary restraining order was
filed on July 23, 2018 in the same case; Allen submitted a similar
declaration signed July 20, 2018. In this second declaration,
Allen stated again that the property up for auction “belongs to
Mr. Hills,” and “[t]here was also more property than is shown for
auction sale.” Allen also added, “I have personal knowledge that
the property was purchased by Mr. Hills or one of his DBA
companies, G & S Electronics and or West Viking Records.” The
court’s orders on the ex parte requests are not included in the
record on appeal.
Wells Fargo, Asset Reliance, Hansen, and Testo (the bank
defendants in the instant case) filed a special motion to strike
Hills’s complaint under section 425.16. Wells Fargo also
apparently sought sanctions on the basis that Hills’s complaint
was frivolous. In response to the motion for sanctions, Allen
submitted a third declaration stating that from 1998 to 2012, “I
stored my personal properties and business properties at the
6150 Shenandoah property.” Without notice, Martin-Bragg
evicted Allen and others who worked at 6150 Shenandoah, and “I
was unable to remove my personal properties and business
properties.” She stated, “Some of [the] personal properties and
business properties are included in the List Wells Fargo Bank,
N.A., provided to the court,” but she did not identify which
property was hers. Allen stated that her property was not
subject to the Wells Fargo lien or replevin, and that she was
planning to sue Wells Fargo.
The court granted the bank defendants’ anti-SLAPP motion
on May 13, 2019. It found Wells Fargo’s “judicially-authorized
17
levy upon personal property for enforcement of a judgment is
conduct in furtherance of the right of petition.” The court further
held that Hills’s claims were barred by issue preclusion because
his contentions “depend upon a finding that the property levied
upon and listed in the complaint is actually his,” but “the federal
courts have already decided the issue, and ruled that it belongs
instead to Defendant Moore.” The court granted the bank
defendants’ request for $12,824.00 in attorney fees, but denied
the request for sanctions. Division One of this court affirmed the
ruling. (Hills v. Wells Fargo Bank, N.A. (Sept. 24, 2020,
B297438) [nonpub. opn.].)
On November 1, 2019, the superior court dismissed the
remainder of Hills’s action on the basis that it was a sham. The
court noted that the bank defendants were no longer in the case
following the anti-SLAPP motion, Martin-Bragg and Barbour had
been dismissed following a demurrer, and the U.S. Marshal had
never been served. Thus, “[t]he only two real, active parties left
are Hills and Moore. And the plain fact is that they are not, and
never have been, actually adverse to one another.” The court
noted that although Hills had named Moore as a defendant, the
complaint made no substantive allegations against Moore, Moore
never filed an answer, and Hills did not seek his default. The
court noted that Allen had “recently filed a case against Wells
Fargo and Martin-Bragg, alleging that the property levied upon
was actually hers.” Moore served multiple discovery requests,
and his “subpoenas appear to be designed to bolster [Allen’s]
case” or to “gather evidence for future contempt motions against
Martin-Bragg.” The court also stated, “It seems for all the world
as though Moore’s presence as a defendant was a tactical decision
made to enable Moore to prosecute the case without having to
18
pass the hurdle of a pre-filing order.” The court concluded, “This
litigation in its present form, as between Hills and Moore, is a
sham. It has become merely another bid for leverage in this long
drama between Hills, Moore, Martin-Bragg, Wells Fargo, and
their various attendants.” It appears that Hills did not appeal
the dismissal.
B. This action
1. Allen’s complaint
On May 30, 2019—approximately seven years after she was
allegedly barred from 6150 Shenandoah, and two weeks after the
anti-SLAPP motion was granted in Hills’s case—Allen filed a
verified complaint against the bank defendants; Martin-Bragg;
Barbour; Bruce Millett; and The Desk Doctor, Incorporated, Inc.
Allen alleged that she “worked as a contractor/investor for
various artists and corporations” at 6150 Shenandoah. Martin-
Bragg “locked [Allen] out” of the property, “and subsequently took
dominion and control of [Allen’s] personal and business property.”
In April 2017, each of the other defendants “wrongfully exercised
dominion and control over the personal property and business
property.” Allen attached to the complaint a list of the property
she alleged was hers, including electronics and recording
equipment such as computers, a tape recorder, various
microphones, speakers, and two electric pianos; it also included
personal items such as legal documents and contracts, two Rolex
watches with diamonds, women’s clothing and shoes, “family
items,” fur coats, and children’s clothing.
In the first cause of action for conversion, Allen alleged that
each defendant wrongfully “exercised dominion and control” over
Allen’s property, and that she was not indebted to any of the
defendants. In the second cause of action for intentional
19
misrepresentation, Allen alleged that each defendant “made a
knowing and intentional false representation to plaintiff and to
other third parties that Plaintiff’s personal property and business
property belong [sic] to Wells Fargo Bank, N.A.” and/or was
subject to the replevin action. In the third cause of action for
“fraud/deceit,” Allen alleged that each of the defendants
“knowingly made [the] false representation that Plaintiff’s
personal property and her business property are subject to Wells
Fargo Bank[’s] judgment when defendants knew that to be false.”
She further alleged that the defendants acted with malice, fraud,
or oppression. In her fourth cause of action for trespass to
chattels, Allen alleged that the defendants “interfered with
plaintiff’s possessory interest in her personal property and
business property.” In her fifth cause of action for replevin, Allen
alleged that defendants had been in control of her property since
April 2017. Allen prayed for damages of $2.5 million, plus
punitive damages, attorney fees, and costs.
2. The bank defendants’ anti-SLAPP motion
The bank defendants filed a special motion to strike under
section 425.16, asserting that Allen was “acting as a strawman
for Ivan Rene Moore” to get around the vexatious litigant
restrictions. They argued that Allen’s complaint arose from
Wells Fargo’s exercise of its constitutionally protected rights to
collect on the replevin judgment against Moore. The bank
defendants also asserted that Allen could not demonstrate a
probability of prevailing on her claims. They contended Allen’s
claims were barred by the following doctrines: judicial estoppel,
because Allen had stated in earlier declarations that the replevin
property belonged to Hills, not her; issue preclusion, because
ownership of the replevin property had already been adjudicated;
20
the statute of limitations, because Allen alleged she had been
without her property since 2012; and the litigation privilege,
because the bank defendants’ litigation actions were protected.
The bank defendants filed a request for judicial notice with their
motion, which included background information regarding the
prior litigations.
Allen apparently opposed the motion, but her opposition is
not included in the record on appeal. According to the bank
defendants’ reply, Allen’s opposition “provide[d] no analysis
concerning the elements necessary [under] the Anti-SLAPP
Statute.” The reply also reiterated the bank defendants’
arguments in favor of striking the complaint under section
425.16. The bank defendants objected to a declaration and the
request for judicial notice Allen filed with her opposition, but
neither the declaration nor the request for judicial notice are in
the record on appeal.
The record does not include a reporter’s transcript from the
hearing on the special motion to strike. The superior court took
the matter under submission. In a written ruling, the court
stated that the “actions taken by Wells Fargo and its agents are
protected activities which are subject to an anti-SLAPP motion.
Defendants meet their burden. The burden then shifts to the
plaintiff.” The court found that “Allen does not demonstrate a
probability of prevailing on the basis of res judicata [citation] and
judicial estoppel.” As to res judicata, the court noted that Allen
submitted declarations regarding the ownership of the replevin
property in support of Hills’s action, and “[t]he court entered
judgment in favor of Wells Fargo after considering all the
evidence, including Ms[.] Allen’s declarations.” As to judicial
estoppel, the court stated that Allen “participated in prior
21
actions, filing declarations completely contradictory to the
position she has taken in the instant action.” The court therefore
granted the bank defendants’ motion.9
Allen timely appealed. (See §§ 425.16, subd. (i), 904.1,
subd. (a)(13).)
DISCUSSION
A. Judicial notice
Before addressing the parties’ contentions on appeal, we
address the scope of the evidence we rely upon for our analysis.
Much of the history of litigation summarized above is set forth in
documents attached to the bank defendants’ requests for judicial
notice filed in the superior court, which are included in the
respondents’ appendix on appeal.10 The record does not indicate
whether the superior court granted the bank defendants’
requests for judicial notice. The bank defendants, citing only
their anti-SLAPP motion, represent in their respondents’ brief
that the superior court took judicial notice of certain “actions”
(identified by case number; the list does not include Hills’s LASC
action, BC713791) and certain docket entries (which also do not
9 Allen later filed a lawsuit in the Central District against a
similar group of defendants. The Central District granted a
motion to dismiss on claim preclusion grounds based on the
court’s ruling in this case. (Allen v. Partington (C.D. Cal., Oct. 9,
2020, No. LACV2006793VAP (JEMx).)
10 In her reply brief, Allen contends that “[t]he [e]xcerpts of
documents” in the respondents’ appendix “were not part of the
record in the lower court.” She does not specify which documents
were not before the superior court. Her contention appears to
contradict the record; the documents are attached to the bank
defendants’ various requests for judicial notice, which each bear a
filing stamp.
22
include Hills’s LASC action). The bank defendants do not reveal
whether the superior court granted their requests for judicial
notice of certain documents, and the court’s written order on the
anti-SLAPP motion does not mention the bank defendants’
requests for judicial notice.
A “reviewing court shall take judicial notice of . . . each
matter properly noticed by the trial court.” (Evid. Code, § 459.)
However, “[t]o obtain judicial notice by a reviewing court under
Evidence Code section 459, a party must serve and file a separate
motion with a proposed order.” (Cal. Rules of Court, rule
8.252(a)(1).) “The motion must state: (A) Why the matter to be
noticed is relevant to the appeal; (B) Whether the matter to be
noticed was presented to the trial court and, if so, whether
judicial notice was taken by that court; (C) If judicial notice of the
matter was not taken by the trial court, why the matter is subject
to judicial notice under Evidence Code section 451, 452, or 453;
and (D) Whether the matter to be noticed relates to proceedings
occurring after the order or judgment that is the subject of the
appeal.” (Cal. Rules of Court, rule 8.252(a)(2).) The bank
defendants did not file a request for judicial notice in this court.
The extensive litigation background is relevant to the
superior court’s issue preclusion and judicial estoppel findings,
and therefore it is relevant to our analysis. Thus, on our own
motion we take judicial notice of the documents submitted with
the bank defendants’ requests for judicial notice in the superior
court, to the extent those requests consist of court records of
previous litigations. (Evid. Code, § 452, subd. (d) [a court may
judicially notice the “record of . . . any court of this state” or “any
court of record of the United States”].) We note, however, that we
“take judicial notice of the existence of judicial opinions and court
23
documents, along with the truth of the results reached—in the
documents such as orders, statements of decision, and
judgments—but cannot take judicial notice of the truth of
hearsay statements in decisions or court files, including
pleadings, affidavits, testimony, or statements of fact.” (Williams
v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)
With her reply brief, Allen filed a request for judicial notice
of eight documents. The motion does not state whether the
documents were presented to the trial court or whether judicial
notice was taken by the court. The bank defendants have not
opposed her request.
It appears from the record on appeal that three of Allen’s
documents were submitted to the superior court. Exhibit 3 is a
list of what Allen claims is her property; a version of this list is
included with Allen’s complaint. Exhibit 4 is the replevin
judgment, and Exhibit 8 is the Central District’s June 23, 2017
order for sale, both of which are included in the bank defendants’
requests for judicial notice. We grant Allen’s request for judicial
notice of these documents. (Evid. Code, §§ 452, subd. (d), 459.)
Additional documents in Allen’s request for judicial notice
consist of a discharge order from Moore’s bankruptcy case
(Exhibit 1); a list of the property Hills alleged was his, which
according to Allen was filed with Hills’s complaint in BC713791
(Exhibit 2); Martin-Bragg’s opening brief in the appeal from the
conversion judgment, LASC case BC480013 (Exhibit 5); and
Martin-Bragg’s declaration in the collection action, which was
filed in support of Wells Fargo’s verification of ownership of the
items seized (Exhibit 6). The record on appeal does not reveal
whether these documents were filed in the superior court.
Reviewing courts do not typically take judicial notice of evidence
24
not presented to the lower court absent exceptional
circumstances. (Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3.) These are all documents filed
in various litigations, however, and because the litigation
background is relevant here we grant judicial notice of Exhibits
1, 2, 5, and 6. (Evid. Code, §§ 452, subd. (d), 459.)
Allen’s Exhibit 7 is Martin-Bragg and Barbour’s responses
to discovery propounded in Hills’s LASC case, BC713791. There
is no indication these discovery responses were filed with the
court or became part of any court record. In general, “discovery
responses . . . are not a proper matter for judicial notice.” (TSMC
North America v. Semiconductor Manufacturing Internat. Corp.
(2008) 161 Cal.App.4th 581, 594, fn.4.) Judicial notice of this
document is therefore denied.
B. Legal standards under section 425.16
“Under California’s anti-SLAPP statute, a defendant may
bring a special motion to strike a cause of action arising from
constitutionally protected speech or petitioning activity.
(§ 425.16, subd. (b)(1).) Unless the plaintiff establishes a
probability of prevailing on the claim, the court must grant the
motion and ordinarily must also award the defendant its
attorney’s fees and costs.” (Barry v. State Bar of California
(2017) 2 Cal.5th 318, 320.) “The analysis of an anti-SLAPP
motion thus involves two steps. ‘First, the court decides whether
the defendant has made a threshold showing that the challenged
cause of action is one “arising from” protected activity. (§ 425.16,
subd. (b)(1).) If the court finds such a showing has been made, it
then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.’ [Citation.] ‘Only a cause
of action that satisfies both prongs of the anti-SLAPP statute—
25
i.e., that arises from protected speech or petitioning and lacks
even minimal merit—is a SLAPP, subject to being stricken under
the statute.’ [Citation.] We review an order granting or denying
a motion to strike under section 425.16 de novo.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.) The
appellate court therefore engages “‘in the same two-step process
to determine, as a matter of law, whether the defendant met its
initial burden of showing the action is a SLAPP, and if so,
whether the plaintiff met its evidentiary burden on the second
step.’” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162.) Even
when the standard of review is de novo, however, the appellant
bears the burden of demonstrating error. (Denny v. Arntz (2020)
55 Cal.App.5th 914, 920.)
C. Allen’s causes of action arise from protected activity
Under section 425.16, an “‘act in furtherance of a person’s
right of petition or free speech under the United States or
California Constitution in connection with a public issue’
includes: (1) any written or oral statement or writing made
before a . . . judicial proceeding . . . , (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a . . . judicial body, or any other official
proceeding authorized by law.” (§ 425.16, subd. (e).) “A claim
arises from protected activity when that activity underlies or
forms the basis for the claim.” (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1062.) “Under
the first step of the anti-SLAPP analysis . . . it is the defendant’s
acts that matter. [Citations.] If the acts alleged in support of the
plaintiff’s claim are of the sort protected by the anti-SLAPP
statute, then anti-SLAPP protections apply.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 887.)
26
The basis for Allen’s contentions is that the bank
defendants, while collecting on Wells Fargo’s replevin judgment
against Moore through the collection action, improperly took
control of Allen’s property. Our Supreme Court has held that
actions taken to collect on a judgment are protected activity. In
Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen), an anti-
SLAPP case, the Supreme Court considered whether
“postjudgment enforcement efforts, including the application for
writ of execution and act of levying on property, [are] protected
by the [litigation] privilege.” (Id. at p. 1052.) The court reasoned
that “since a party may not be liable” for its actions in obtaining a
judgment, “the party should likewise be immune from abuse of
process claims for subsequent acts necessary to enforce it.” (Id.
at p. 1062.) The court found that the litigation privilege applied,
and the special motion to strike had been appropriately granted.
The reasoning of Rusheen applies here, and Allen does not
contend otherwise. Instead, she argues that her property was not
subject to the replevin judgment, and the bank defendants cannot
“demonstrate that [Allen’s] complaint for conversion [of her]
personal property and business property . . . somehow interferes
with [the bank defendants’] rights or litigation privilege, [so] they
have not satisfied the first prong” of the anti-SLAPP test. She
contends that even if Wells Fargo had a right to collect on the
replevin judgment against Moore, Allen is not a judgment debtor
and the bank defendants had no right to seize her property.
Allen cites no legal support for these contentions other than
Rusheen, which she cites for general anti-SLAPP principles.
Allen mistakes the nature of the first step, which is met if
“the defendant’s conduct by which plaintiff claims to have been
injured” falls within a protected category. (Equilon Enterprises v.
27
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) Here, the bank
defendants’ conduct consisted of collecting on the replevin
judgment, which is protected activity. Allen’s argument, in
essence, is either that Wells Fargo made a mistake of fact when
collecting the replevin property, or that Wells Fargo’s actions
were not supported by sufficient evidence of Moore’s ownership.
Neither contention is relevant to the first prong of the section
425.16 analysis.
Allen also asserts that “the anti-SLAPP statute does not
apply to her claims because [the bank defendants’] alleged
conduct fell within the ‘illegal as a matter of law’ exception” in
Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley). In Flatley, the
Supreme Court stated that if the “defendant concedes, or the
evidence conclusively establishes, that the assertedly protected
speech or petition activity was illegal as a matter of law, the
defendant is precluded from using the anti-SLAPP statute to
strike the plaintiff’s action.” (Id. at p.320.)
The bank defendants assert that Allen forfeited this
argument by failing to assert it in the superior court. (See Perez
v. Grajales (2008) 169 Cal.App.4th 580, 591 [“‘[I]t is fundamental
that a reviewing court will ordinarily not consider claims made
for the first time on appeal which could have been but were not
presented to the trial court’”].) Because Allen’s opposition is not
included in the record on appeal, we cannot determine whether
she asserted this argument below. Even assuming the argument
has not been forfeited, however, it is unpersuasive. In support of
her contention, Allen asserts that the bank defendants’ attorney
“admitted” in a bankruptcy proceeding “that he and [the bank
defendants] took personal property that did not belong to the
judgment debtors.” She cites the cover page of a 40-page
28
transcript of a meeting of creditors during Moore’s bankruptcy,
which is included in her appellant’s appendix on appeal. The
transcript is not attached to any document filed in the superior
court, and the record gives no indication whether this transcript
was filed in the court below. A reviewing court considers “‘only
matters which were part of the record at the time the judgment
was entered.’” (Vons Companies, Inc. v. Seabest Foods, Inc.,
supra, 14 Cal.4th at p. 444, fn.3.)
Regardless, the substance of the transcript does not
support Allen’s position. The only comment by the bank
defendants’ counsel at the hearing consisted of a statement that a
motorcycle was included in the replevin property, and a title
search showed that the motorcycle had never been registered.
This is not an “admission” that the bank defendants “took
personal property that did not belong to the judgment debtors,”
as Allen contends. Such a statement by a party’s attorney under
the circumstances does not constitute a concession or conclusive
evidence that the assertedly protected speech or petition activity
was illegal as a matter of law as required by Flatley. Despite
Allen’s allegations, “conduct that would otherwise come within
the scope of the anti-SLAPP statute does not lose its coverage . . .
simply because it is alleged to have been unlawful or unethical.”
(Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911.)
The bank defendants met their burden to show that Allen’s
causes of action arose from protected activity. The burden
therefore shifted to Allen to demonstrate a probability of
prevailing.
D. Allen has not demonstrated a probability of prevailing
In the second step of the anti-SLAPP analysis, the “burden
shifts to the plaintiff to demonstrate the merit of the claim by
29
establishing a probability of success.” (Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940
(Sweetwater Union).) In making this determination, “the court
shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2).) The second step is a “‘summary-
judgment-like procedure,’” in which the court considers “whether
the plaintiff has stated a legally sufficient claim and made a
prima facie factual showing sufficient to sustain a favorable
judgment.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) “[A]
plaintiff seeking to demonstrate the merit of the claim ‘may not
rely solely on its complaint, even if verified; instead, its proof
must be made upon competent admissible evidence.’”
(Sweetwater Union, supra, 6 Cal.5th at p. 940.)
Here, the superior court found Allen failed to meet this
burden on two grounds: issue preclusion and judicial estoppel.
On appeal, Allen contends the superior court erred in reaching
these conclusions. However, Allen has not provided a record on
appeal sufficient to support her contentions.
Allen submitted two appendices on appeal: one with her
opening brief and one with her reply brief. Neither appendix
includes Allen’s opposition to the bank defendants’ anti-SLAPP
motion. No declarations or other documents indicate what
evidence Allen submitted to the superior court. The superior
court sustained eleven objections to Allen’s declaration and six
objections to Allen’s request for judicial notice, but the record on
appeal includes neither the declaration nor the request for
judicial notice.
Because Allen has not provided a record showing what
information was before the superior court, she cannot
30
demonstrate that she met the second step of the anti-SLAPP
analysis by establishing a probability of success. “The cardinal
rule of appellate review is judgments and orders of the trial court
are presumed correct and prejudicial error must be affirmatively
shown. [Citation.] The appellant . . . has the burden of providing
an adequate record, and the failure to provide an adequate record
for meaningful review requires the issue to be resolved against
the appellant.” (Truck Insurance Exchange v. Federal Insurance
Company (2021) 63 Cal.App.5th 211, 224.) Allen has not met
that burden here.
Moreover, considering the limited record before us,
including the evidence we have judicially noticed, the superior
court did not err in finding that Allen’s claims are barred. The
superior court stated that “Allen does not demonstrate a
probability of prevailing on the basis of [issue preclusion].” 11 The
court stated that “the Hills Action concerned a determination of
the ownership interests in the Replevin Property,” and “Ms. Allen
filed declarations in support of Mr. Hills’ attempts to thwart
collection; thereby, participating in the Hills’ litigation. The
court entered judgment in favor of Wells Fargo after considering
11 The court referenced “res judicata,” and cited Murray v.
Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 866, which observed
that “[c]ollateral estoppel is a distinct aspect of res judicata.”
However, California courts “now refer to ‘claim preclusion’ rather
than ‘res judicata’ [citation], and use ‘issue preclusion’ in place of
‘direct or collateral estoppel.’” (Samara v. Matar (2018) 5 Cal.5th
322, 326.) Because claim preclusion necessarily involves the
same parties from an earlier litigation (see DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings), and Allen
was not a party to an earlier litigation, only issue preclusion is
relevant here.
31
all of the evidence, including Ms[.] Allen's declarations.” Allen
asserts that the superior court erred, because she was not in
privity with a party in an earlier action.
Issue preclusion “prohibits the relitigation of issues argued
and decided in a previous case, even if the second suit raises
different causes of action.” (DKN Holdings, supra, 61 Cal.4th at
p. 824.) “[I]ssue preclusion applies: (1) after final adjudication
(2) of an identical issue (3) actually litigated and necessarily
decided in the first suit and (4) asserted against one who was a
party in the first suit or one in privity with that party.” (Id. at p.
825.)
Allen challenges only the fourth prong of the issue
preclusion test, arguing that she “was not a party or in privity
with parties to the prior proceeding.” Privity “refers ‘to a mutual
or successive relationship to the same rights of property, or to
such an identification in interest of one person with another as to
represent the same legal rights.’” (Citizens for Open Access to
Sand and Tide, Inc. v. Seadrift Ass’n (1998) 60 Cal.App.4th 1053,
1069.) “[P]rivity requires the sharing of ‘an identity or
community of interest,’ with ‘adequate representation’ of that
interest in the first suit, and circumstances such that the
nonparty ‘should reasonably have expected to be bound’ by the
first suit. [Citation.] A nonparty alleged to be in privity must
have an interest so similar to the party’s interest that the party
acted as the nonparty’s ‘“‘virtual representative’”’ in the first
action.” (DKN Holdings, supra, 61 Cal.4th at p. 826.) When one
party was not a party to the prior litigation, we “focus on their
relationship to the party and the subject matter of the litigation,
asking whether their interests are so close to identical that the
nonparty should have reasonably expected to be bound by the
32
prior judgment even though not a party.” (Grande v. Eisenhower
Medical Center (2020) 44 Cal.App.5th 1147, 1163.)
Here, Allen’s and Hills’s allegations were identical: Wells
Fargo improperly collected certain property from 6150
Shenandoah that did not belong to the judgment debtors. They
both asserted these contentions even though Wells Fargo’s rights
to the replevin property had been confirmed in multiple
proceedings. Indeed, some of the property on Allen’s list of
property and Hills’s list seemed to be the same, such as a Lexicon
224xl; Neumann U47, AKG C 12, and AKG 414 microphones; and
Ampex ATR recorders with various head stacks. Allen
participated in Hills’s case by filing declarations stating that the
improperly levied property was Hills’s, even though she was also
claiming some of that property as her own. After most of the
defendants had been dismissed from Hills’s case, that court noted
that Hills and Allen’s interests were so intertwined that Hills and
Moore appeared to be using Hills’s case to conduct discovery to be
used in Allen’s case. The evidence is sufficient to find privity.
Most of Allen’s arguments consist of challenging the
replevin judgment and the Central District’s orders in the
collection action. For example, Allen contends the superior court
“cannot give full faith and credit” to the “order or judgment of the
United States District Court,” because Allen “had no notice of the
proceeding.” She argues that she was deprived of her due process
rights under the United States Constitution because she was not
Wells Fargo’s debtor and she did not receive adequate notice of
the federal actions. The bank defendants assert that the court’s
ruling does not run afoul of the full faith and credit clause.
“Full faith and credit must be given to a final order or
judgment of a federal court.” (Levy v. Cohen (1977) 19 Cal.3d
33
165, 172.) “Courts often speak of applying full faith and credit to
a [federal or] sister state’s judgment in order to implement res
judicata principles.” (Hawkins v. SunTrust Bank (2016) 246
Cal.App.4th 1387, 1393.) Here, however, the superior court’s
issue preclusion ruling referenced Hills’s LASC action, not the
federal cases against Moore. Whether Allen had notice of the
federal actions against Moore is irrelevant to the court’s holding.
Allen’s additional attempts to undermine the federal courts’
rulings are similarly unpersuasive. Allen asserts repeatedly that
she was not Wells Fargo’s debtor and should not be bound by its
judgment against Moore. She also argues that Wells Fargo
“employed Kimberly Martin-Bragg to give [a] False Declaration
to establish” that Moore and his companies owned the replevin
property. Allen asserts that this false declaration was refuted by
Martin-Bragg’s appellate brief filed following the judgment in
BC480031, and in her responses to discovery filed in other
litigations. Allen further asserts that Wells Fargo “orchestrated
unconscionable schemes to deceive this Court and the United
States District Court through callous and willful
misrepresentations directed at the judicial machinery in their
schemes to deprive Plaintiff Devra Allen” and others of their
property.
However, Allen may not collaterally attack the replevin
judgment or collection action orders through a state court
proceeding. “The federal rule is that a judgment or order, once
rendered, is final for purposes of res judicata until reversed on
appeal or modified or set aside in the court of rendition.” (Martin
v. Martin (1970) 2 Cal.3d 752, 761.) Where “the substantive
question” in a litigation “has been finally determined” by a
federal court—as Wells Fargo’s rights to collect the replevin
34
property has been determined here—“[s]uch order can be . . .
challenged solely by way of direct attack in the federal court; it
may not be collaterally attacked in the instant state proceeding.”
(Id. at p. 762.) Moreover, Allen’s arguments rely on her
contentions that Martin-Bragg’s statements in other court
documents were false. As noted above, although we may
judicially notice court records, we do not judicially notice the
truth or falsity of any out-of-court statements made in those
documents. (Williams v. Wraxall, supra, 33 Cal.App.4th at p. 130
fn. 7.)
Based on the record before us, the superior court did not err
in finding privity for purposes of issue preclusion, and Allen has
not demonstrated a probability of success.12
E. Evidentiary objections
Allen further asserts that the superior court erred in
sustaining the bank defendants’ objections to her evidence
without conducting an evidentiary hearing. She argues that the
court “excluded material evidence which demonstrated that Wells
Fargo Bank and its agents knew that the personal property they
converted belonged to Appellant, Devra Allen and other[s]. . . .”
The lack of an adequate record prevents any meaningful
analysis of this contention. Allen asserts that the court should
not have sustained the bank defendants’ objections to her request
for judicial notice, but the request for judicial notice is not in the
record on appeal. Allen also argues the court erred in sustaining
12Because the record cannot support reversal and we find
no error in the court’s finding on issue preclusion, we do not
reach Allen’s contention that the superior court erred in finding
that her claims were also barred by judicial estoppel.
35
“Respondent’s Objection to Plaintiff’s evidence 2-8, 10, 15, 16 &
17,” which apparently referenced the bank defendants’ objections
to Allen’s declaration. However, the declaration is not in the
record on appeal. We cannot consider Allen’s contentions when
the relevant documents are not before us.
DISPOSITION
The judgment is affirmed. Respondents are entitled to
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
36