Pham v. Nguyen CA6

Filed 4/13/22 Pham v. Nguyen CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THUY PHAM, H047433
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 17CV311664)

v.

OLIVIA NGUYEN et al.,

Defendant and Appellant.

Olivia Nguyen (Olivia) and An Nguyen (An), defendants in this civil action, were
married for at least 10 years.1 Olivia filed a petition for dissolution in or about
October 2001 in the Superior Court, County of Orange (the Olivia/An proceeding). A
judgment of dissolution on reserved issues was entered in that proceeding on July 18, 2007.
On a date not disclosed in the record, An married plaintiff Thuy Pham (Pham). In or
about September 2007, An filed a dissolution proceeding relative to that second marriage in
the Superior Court, County of Orange. A judgment of dissolution was filed in
November 2007, but was later set aside, except as to status. In 2010, Pham filed a second
dissolution proceeding involving An in the Superior Court, County of Santa Clara (the

1
We refer to Olivia Nguyen and An Nguyen by their first names for convenience and
clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2002)
81 Cal.App.4th 1131, 1136, fn. 1.)
Pham/An proceeding). The present civil action, also in the Superior Court, County of Santa
Clara, was filed by Pham against An and Olivia, and relates to an alleged fraudulent transfer
of property in 2014.
In this civil action, Pham challenges a 2014 real estate transaction involving a
vacation home jointly owned by An and Olivia located on N. Shore Drive in Fawnskin,
California (Fawnskin Property or Fawnskin Home). In the 2007 dissolution judgment, An
and Olivia had agreed that the Fawnskin Home would be sold with the proceeds divided
equally. That property was never sold. In 2014, An transferred his interest in the Fawnskin
Home to Olivia through a stipulation and order (the 2014 Stipulated Order) filed in the
Olivia/An proceeding. That 2014 Stipulated Order modified their 2007 judgment. Pham
alleged that the real estate transaction, which was completed by recording a June 13, 2014
interspousal deed transfer, was a fraudulent transfer under the Uniform Voidable
Transactions Act (UVTA), Civil Code section 3439 et seq., formerly known as the Uniform
Fraudulent Transfer Act (see Stats. 2015, ch. 44, § 3).
Olivia filed a special motion to strike Pham’s first amended complaint under Code of
Civil Procedure section 425.16 (special motion to strike, or anti-SLAPP motion).2 An anti-
SLAPP motion is resolved through a two-step process in which the court decides (1) if the
defendant has shown that the challenged claim arose out of his or her constitutionally
protected petitioning or speech activity; and (2) assuming the defendant has met his or her
burden to show he or she was engaged in protected activity, whether the plaintiff has
established a probability of prevailing on the claim. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) In addressing this second step, the plaintiff

2
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 (Jarrow Formulas).)
Further statutory references are to the Code of Civil Procedure unless otherwise
stated.

. 2
is required to show that his or her claim has “at least ‘minimal merit.’ ” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).)
Olivia contended, inter alia, that Pham’s entire action was barred under the anti-
SLAPP statute because the suit was based upon Olivia’s exercise of her constitutionally
protected activity of participating in court proceedings, namely, her negotiation, execution,
and submission to the court for its entry of the 2014 Stipulated Order. The court below
disagreed, concluding that Olivia had failed to meet her initial burden of showing that
Pham’s claims arose out of Olivia’s constitutionally protected activity. Because of this
ruling, the court denied Olivia’s anti-SLAPP motion without considering the second step of
whether Pham had shown that her claims had “at least ‘minimal merit.’ ” (Park, supra, 2
Cal.5th at p. 1061.) Additionally, because of its denial of the anti-SLAPP motion, the court
denied as moot Pham’s concurrent motion to lift the statutory stay upon discovery. (See §
425.16, subd. (g).)
Olivia appeals the order denying the anti-SLAPP motion. We agree with Olivia that
she met her burden of showing that the claims alleged in the first amended complaint arose
out of her constitutionally protected activity. The trial court should have therefore
considered, as the second step in evaluating an anti-SLAPP motion, i.e., whether Pham had
established a probability of prevailing on her claims. Therefore, the case must be reversed
and remanded for further proceedings on the anti-SLAPP motion.
Olivia’s position, asserted below and on appeal, was that the litigation privilege
under Civil Code section 47, subdivision (b) (Civ. Code, § 47(b)) constituted an absolute bar
to Pham’s claims, and therefore Pham could not establish a probability that she would
prevail. As part of the second step of the analysis of the anti-SLAPP motion, this privilege
issue is one to be decided by the trial court. But because it is a question of law, and because
the parties urge that we do so, we will address the litigation privilege here to provide
guidance to the court on remand. Our conclusion is that, if the trial court finds that Pham’s
claims based upon the fraudulent transfer of assets have “at least ‘minimal merit’ ” (Park,

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supra, 2 Cal.5th at p. 1061), the litigation privilege will not act as a bar to her claims against
Olivia under the second step of the analysis of Olivia’s anti-SLAPP motion.
We will direct that the trial court, on remand in addressing the anti-SLAPP motion,
first consider Pham’s motion to lift the discovery stay. Then, after receiving and
considering further briefing, evidence, and argument as it deems appropriate, the court shall
decide whether Pham has established, under the second step, a probability of prevailing on
her claims.
I. PROCEDURAL HISTORY
A. The First Amended Complaint
Pham filed suit on or about June 12, 2017.
On January 23, 2019, Pham filed an unverified first amended complaint (hereafter,
the Complaint) against An and Olivia. Pham alleged 10 purported causes of action, namely
(1) breach of fiduciary duty (against An only), (2) violation of Family Code section 2040,
(3) violation of court orders, (4) fraudulent transfer of assets with actual fraudulent intent,
(5) constructive fraudulent transfer of assets, (6) civil conspiracy, (7) aiding and abetting,
(8) action on judgment (against An only); (9) creditor’s suit, and (10) constructive trust.
In the general allegations of the Complaint common to each of the 10 causes of
action, Pham alleged, among other things,3 that An and Olivia were previously married;
Olivia filed for dissolution of the marriage in October 2001 (i.e., the Olivia/An proceeding);
a judgment, status only, was filed June 25, 2004; a judgment of dissolution of the assets and
liabilities was entered on July 18, 2007; that judgment included a provision that the parties
agreed to sell the Fawnskin Home, and divide the proceeds; that vacation home was never

3
To avoid repetition, we will sometimes dispense with the prefatory “Pham alleged”
in describing the allegations of the Complaint.

. 4
sold, and it remained jointly owned by An and Olivia; and the Fawnskin Home had an
estimated value of $3,666,536.
Pham married An, who thereafter filed a dissolution proceeding in or about
September 2007. Their judgment of dissolution filed November 20, 2007, was set aside
(except as to the issue of status) by a stipulation and order on August 26, 2009. Property
issues remained, but the court dismissed the proceeding. Thereafter, in or about April 2010,
An filed another dissolution proceeding in Ho Chi Minh City, Vietnam, which was still
pending (the Vietnam proceeding).
In July 2010, Pham filed a new dissolution proceeding, i.e., the Pham/An proceeding.
On December 7, 2011, Pham and An resolved all issues of support, division of assets, and
division of liabilities in a stipulation and order entered in that proceeding. An agreed to
obtain a court order in the Vietnam proceeding consistent with the parties’ settlement.4 An
never intended to comply, and did not comply, with the December 7, 2011 stipulation and
order, and continued to maintain the Vietnam proceeding in derogation of the parties’
agreement.
Thereafter, Pham filed a motion below in the Pham/An proceeding seeking various
relief, including enforcement of the December 7, 2011 stipulation and order and the
issuance of temporary restraining orders relative to California realty owned by An. On
March 26, 2014, the court issued an order (the March 26, 2014 Order) providing, inter alia,
that the “Automatic Temporary Restraining Orders” (ATROs) were reinstated against An,
and that An was restrained from transferring, encumbering, hypothecating, concealing, or in

4 The parties’ settlement included Pham’s acceptance of five Vietnam apartments to
address future child support obligations for the parties’ two children as well as an agreement
to place “almost all of the real properties located in Vietnam into a corporate trust for the
benefit of the two children.”

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any way disposing of any legal or equitable interest in three properties: the Fawnskin
Property, a home located in Newport Coast, and a home located in Huntington Beach.
An violated the March 26, 2014 Order and ATROs by subsequently transferring his
one-half interest in the Fawnskin Property to Olivia.5 Pham alleged in the Complaint that
An devised a scheme to defraud her and to prevent enforcement of the March 26, 2014
Order through an agreement with Olivia for the transfer of An’s one-half interest in the
Fawnskin Property in exchange for Olivia’s release of her interest in furniture and personal
property located on Pelican Drive in Newport Coast, California (Pelican Drive Property).6
An and Olivia “fraudulently claimed this division was not clearly divided in the prior July
18, 2007 Judgment, even though almost 7 years had passed since . . . they originally agreed
to divide the proceeds after the sale of the Fawnskin Home.” An’s transfer of his interest in
the Fawnskin Property occurred on June 13, 2014, by an interspousal deed transfer.
Pham alleged that in the Pham/An proceeding, the court later issued a bench warrant
for An’s arrest, ordered (in four separate orders) that An pay Pham sanctions/attorney fees
totaling more than $160,000, and ordered An to pay $2,752,800 in child support arrearages
by August 1, 2018.

5 Pham alleged that An further violated the March 26, 2014 Order by attempting to
sell his interests in the Newport Coast and Huntington Beach homes, but he was thwarted in
those efforts by Pham’s attorney and through the lower court’s appointment of a receiver.
6 The Complaint contains repeated allegations that An and Olivia conspired or

entered into an agreement “to fraudulently transfer ½ of his interest in [the] Fawnskin
Home.” (Italics added.) Since the parties agree that the Fawnskin Home, prior to the acts
alleged in the Complaint, was owned by An and Olivia equally, it appears that the intended
allegation in the Pham’s Complaint was that the parties conspired or agreed to fraudulently
transfer An’s one-half interest in the Fawnskin Home.

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 In the fourth and fifth causes of action,7 Pham alleged that “An conspired with Olivia
to enter into an agreement to fraudulently transfer” his one-half interest in the Fawnskin
Property in exchange for a release by Olivia of her interest in personal property and
furniture located at the Pelican Drive Property; this transfer, which was in violation of the
March 26, 2014 Order and the ATROs, occurred on June 13, 2014. An accomplished the
transfer of assets “with the intent to hinder, delay, or defraud” Pham, a creditor. As to the
fifth cause of action, Pham alleged that “An did not receive equivalent value in exchange for
all of the previously mentioned transferred assets.”
In the sixth cause of action for civil conspiracy, Pham alleged that each of the
defendants devised and agreed upon a common scheme, inter alia, (1) “to hinder, delay,
defraud and make it difficult for [Pham] as a creditor to enforce her orders/judgments,” and
(2) to agree to and accomplish the fraudulent transfer of An’s one-half interest in the
Fawnskin Property in exchange for the release by Olivia of her interest in personal property
and furniture. Each defendant was aware of, and cooperated in, each of the other
defendants’ actions.
In the seventh cause of action, Pham alleged that defendants caused her harm when
they, inter alia, entered into an agreement to transfer and transferred An’s one-half interest
in the Fawnskin Property in exchange for a release by Olivia of her interest in personal

7 The first and eighth causes of action were directed against An, only. The court
below sustained without leave to amend Olivia’s demurrer to the second and third causes of
action, and it sustained her demurrer to the tenth cause of action with leave to amend.
Olivia has represented to this court that Pham never filed an amended complaint, and Pham
does not challenge this statement. Although Olivia demurred to the ninth cause of action,
and Pham opposed that demurrer, the court did not rule on the demurrer to the ninth cause of
action. Accordingly, we address here only the fourth through seventh and ninth causes of
action of the Complaint.

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property and furniture. Olivia, as an aider and abettor, was responsible for the conduct of
An and stood in his shoes, and as such, was jointly and severally liable.
In the ninth cause of action identified as a “creditor’s suit” (capitalization omitted),
Pham alleged that she had several monetary “judgments” (i.e., orders) against An that
remained unpaid. Olivia held property in which An had an interest, including the Fawnskin
Property, and personal property and furniture owned by An and Olivia while they lived at
the Pelican Drive Property. Olivia owed An $2 million or more.
B. The Special Motion to Strike
On July 10, 2019, Olivia filed a special motion to strike the Complaint under the anti-
SLAPP statute.8 She asserted that each of the eight causes of action against her arose out of
the exercise of her protected petitioning activity. The basis for Olivia’s position was that the
agreement alleged in the Complaint concerning the transfer of An’s one-half interest in the
Fawnskin Property in exchange for Olivia’s release of any interest in personal property and
furniture was made in a stipulation and order filed amending the judgment entered in the
Olivia/An proceeding (i.e., the 2014 Stipulated Order). Olivia asserted further that since the
claims arose out of her exercise of protected activity, Pham was required to show a
probability of prevailing, a showing that she could not make because, inter alia, (1) the
litigation privilege (Civ. Code, § 47(b)) barred the claims asserted against Olivia; (2) the
exchange of An’s interest in the Fawnskin Property and her release of her interest in the
furniture and personal property involved property of substantially equivalent value;
(3) Olivia had no actual intent to hinder, delay or defraud Pham; and (4) Olivia established

8 It is apparent that An did not respond to the Complaint. The record reflects that, on
September 13, 2019, Pham filed a request for entry of default against An on the Complaint.
The record, however, does not reflect that the court thereafter formally entered a default
against him.

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through her declaration that she had acted in good faith in the transaction and that she had
no knowledge of An’s alleged wrongdoing.
Olivia submitted her own declaration and two requests for judicial notice in support
of the motion to strike. Olivia sought in her first request that the court take judicial notice of
three documents. The first document was a judgment on reserved issues filed in the
Olivia/An proceeding on July 18, 2007. The judgment included a provision that the
Fawnskin Property was to be sold by the parties and the proceeds equally divided. The
second document was the 2014 Stipulated Order (signed by the court and filed
May 5, 2014), amending the judgment on reserved issues in the Olivia/An proceeding The
2014 Stipulated Order provided, inter alia, that (a) the Fawnskin Property was awarded to
Olivia with An holding no further interest therein; (b) concurrent with execution of the
stipulation, An would sign an interspousal transfer deed transferring his interest in the
Fawnskin Property; (c) all interest in the personal property and furniture that was previously
located at the Pelican Drive Property that the parties stipulated had “not [been] clearly
divided in the prior Judgment” was awarded to An as his sole and separate property; and (d)
the parties stipulated that the community equity values of the Fawnskin Property being
awarded to Olivia and the personal property and furniture being awarded to An were
“substantially equivalent.” The third document was an interspousal grant deed—signed by
An on April 1, 2014, and recorded on June 13, 2014—in which An transferred his interest in
the Fawnskin Property to Olivia. The court below granted Olivia’s first request for judicial
notice of the three documents.
Olivia filed a demurrer to the Complaint concurrently with her motion to strike.
Pham opposed the special motion to strike. She submitted a memorandum of points
and authorities, a declaration of counsel, a request for judicial notice, and objections to
evidence. Pham argued, inter alia, that Olivia’s conduct was not constitutionally protected
under the anti-SLAPP statute, the litigation privilege under Civil Code section 47(b) was not

. 9
a defense to the claims against Olivia, and Pham had established that her claims had
minimal merit to survive the special motion to strike.
After a hearing on the special motion to strike, the court issued an order filed on
October 1, 2019, denying the motion to strike. The court held that the conduct alleged in the
Complaint did not arise out of protected activity, concluding that the gravamen of the claims
was “the wrongful transfer of . . . the Fawnskin Home [by defendant An] to defendant
Olivia.” (Original italics and bold.)9
Olivia filed a timely appeal from the order denying the special motion to strike.
II. DISCUSSION
A. Anti-SLAPP Motions to Strike
A SLAPP suit is one in which a plaintiff “seeks to chill or punish a party’s exercise
of constitutional rights to free speech and to petition the government for redress of
grievances. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).)
SLAPP suits may be disposed of summarily by a special motion to strike under
section 425.16, which is “a procedure where the trial court evaluates the merits of the
lawsuit using a summary-judgment-like procedure at an early stage of the litigation.”
(Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statute 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 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.” (§ 425.16, subd. (b)(1).) The Legislature has directed that the
language of the statute be “construed broadly.” (§ 425.16, subd. (a).)

In the October 1, 2019 order, the court also issued its ruling on Olivia’s demurrer to
9

the Complaint. The order on demurrer is not relevant to this appeal.

. 10
 Subdivision (e) of section 425.16 (§ 425.16(e)) identifies four general categories of
protected activities of petition or free speech, the first two of which being relevant here:
“(1) any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest; or (4) any other conduct in furtherance
of the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).) The
exercise of speech or petitioning rights potentially subject to anti-SLAPP protection under
clauses (1) and (2) is not limited to actions that concern an issue of public interest. (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.)
A motion to strike under section 425.16 is analyzed and resolved by “the court . . .
engag[ing] in a two-step process. First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected activity.
The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff
complains were taken ‘in furtherance of the defendant’s right of petition or free speech
under the United States or California Constitution in connection with a public issue,’ as
defined in the statute. (§ 425.16, subd. (b)(1).)” The second step the court considers in
addressing the special motion to strike—if it finds that the defendant has shown that the
cause of action arose out of conduct arose out of protected activity—is “whether the plaintiff
has demonstrated a probability of prevailing on the claim.” (Equilon, supra, 29 Cal.4th at
p. 67.) In this step, the plaintiff is required to show that its claim has “at least ‘minimal
merit.’ ” (Park, supra, 2 Cal.5th at p. 1061.) Thus, “[o]nly a cause of action that satisfies
both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning

. 11
and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier), original italics.)
“Review of an order granting or denying a motion to strike under section 425.16 is de
novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits . . .
upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither
‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) In performing
our de novo review, we “ ‘conduct[] an independent review of the entire record.
[Citations.]’ ” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) “[O]ur
review is conducted in the same manner as the trial court in considering an anti-SLAPP
motion. In determining whether the defendant . . . has met its initial burden of establishing
that the plaintiff’s . . . action arises from protected activity, we consider ‘the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability or defense is
based.’ (§ 425.16, subd. (b)(2); [citations].) The second prong—i.e., whether the
plaintiff . . . has shown a probability of prevailing on the merits—is considered under a
standard similar to that employed in determining nonsuit, directed verdict or summary
judgment motions. [Citation.] ‘[I]n order to establish the requisite probability of prevailing
[citation], the plaintiff need only have “ ‘stated and substantiated a legally sufficient
claim.’ ” [Citations.]’ ” (Ibid.)
We review the trial court’s decision, not its rationale. “If the trial court’s decision
denying an anti-SLAPP motion is correct on any theory applicable to the case, we may
affirm the order regardless of the correctness of the grounds on which the lower court
reached its conclusion. [Citation.]” (City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th
1301, 1307.)

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 B. The Underlying Conduct Was Protected Activity
We address the first step in the analysis of a special motion to strike, namely,
whether Olivia, as the moving party, sustained her burden of establishing that the cause of
action arose out of activity that is protected under the anti-SLAPP statute. (Equilon, supra,
29 Cal.4th at p. 67.) She was therefore required to “establish both (1) that [her] act
constituted protected activity; and (2) the opposing party’s cause of action arose from that
protected activity.” (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes
(2017) 9 Cal.App.5th 119, 130, italics added.) Olivia contends that she made that threshold
showing.
In determining whether the cause of action is one “arising from” the defendant’s
protected activity (§ 425.16, subd. (b)(1)), “the critical consideration is whether the cause of
action is based on the defendant’s protected free speech or petitioning activity. [Citations.]”
(Navellier, supra, 29 Cal.4th at p. 89, original italics); see also Park, supra, 2 Cal.5th at
p. 1062 [“claim arises from protected activity when that activity underlies or forms the basis
for the claim”].) It is not enough for the defendant to show that the plaintiff’s lawsuit was
filed after the defendant engaged in protected activity, or that the claim was “ ‘triggered’ by
protected activity.” (Navellier, supra, at p. 89, original italics.) The only way specifically
identified in the statute that a party filing a motion to strike can show that the challenged
claim “ ‘arises from’ ” his or her protected conduct is if that conduct “falls within one of the
four categories described in subdivision (e), defining subdivision (b)’s phrase, ‘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.’ [Citation.]” (Equilon, supra, 29
Cal.4th at p. 66.) Two of those categories identified in section 425.16(e) potentially apply
here, namely, “(1) any written or oral statement or writing made before a . . . judicial
proceeding, . . . [and] (2) any written or oral statement or writing made in connection with
an issue under consideration or review by a . . . judicial body.”

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 “The constitutional right of petition encompasses ‘ “ ‘the basic act of filing
litigation.’ ” ’ [Citation.]” (Navellier, supra, 29 Cal.4th at p. 90.) Therefore, “a claim
based on actions taken in connection with litigation falls ‘squarely within the ambit of the
anti-SLAPP statute’s “arising from” prong. (§ 425.16, subd. (b)(1).)’ [Citation.]” (Kurz v.
Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 759.)
Courts have adopted “a fairly expansive view of what constitutes litigation-related
activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th
892, 908.) “[S]tatements, writings and pleadings in connection with civil litigation are
covered by the anti-SLAPP statute.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) Thus,
“all communicative acts performed by attorneys as part of their representation of a client in
a judicial proceeding or other petitioning context are per se protected as petitioning activity
by the anti-SLAPP statute. [Citations.]” (Cabral v. Martins (2009) 177 Cal.App.4th 471,
480.) Settlement negotiations and agreements are made “in connection with” litigation for
purposes of section 425.16. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963 (Seltzer).)
Protected activity also includes “communications in connection with anticipated litigation.”
(Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263 (Neville).)
Olivia argues that the underlying claims alleged in Pham’s Complaint are based on
allegations that (1) An and Olivia entered into an agreement under which An would
fraudulently convey to Olivia his community interest in the Fawnskin Property in exchange
for Olivia’s relinquishment of her interest in personal property and furniture, and (2) that
agreement was implemented by An’s transfer of his interest in the Fawnskin Property to
Olivia by interspousal deed. Olivia argues that the agreement referred to in the Complaint
was memorialized by the parties in a stipulation signed by them and an order entered
thereon filed May 5, 2014 (i.e., the 2014 Stipulated Order), which amended the 2007
judgment on reserved issues in the Olivia/An proceeding. Olivia argues that therefore,
“[b]ecause the negotiation, execution, and submission of that stipulation and order . . . and
the subsequent recordation of the deed[] were done in connection with Olivia’s protected

. 14
petitioning activity,” the trial court should have held that Olivia satisfied the first prong of
the anti-SLAPP analysis.
The general allegations of the Complaint are incorporated into each of the causes of
action relevant to this appeal, i.e., the fourth, fifth, sixth, seventh, ninth causes of action.
(See fn. 7, ante.) Those general allegations, as discussed above, contained the essential
factual grounds for Pham’s claims, including, inter alia, An having devised a scheme to
prevent Pham’s enforcement of the March 26, 2014 Order by agreeing with Olivia to
transfer An’s one-half interest in the Fawnskin Property in exchange for Olivia’s
relinquishment of her interest in furniture and personal property, and the consummation of
that scheme by the formal recordation of an interspousal deed to the real property on
June 13, 2014. Therefore, Olivia’s argument that she satisfied the first prong by showing
that the claims in the Complaint arose out of protected petitioning activity applies to each of
the causes of action of the Complaint we consider in this appeal.
The 2014 Stipulated Order was undeniably a “(1) [a] written or oral statement or
writing made before a . . . judicial proceeding, . . . [as well as] (2) [a] written or oral
statement or writing made in connection with an issue under consideration or review by
a . . . judicial body.” (§ 425.16(e).) It was certainly the kind of writing filed in litigation
within the scope of protected activity under the anti-SLAPP statute. (See, e.g., GeneThera,
Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 906 [allegedly
improper settlement offer in prior litigation was within anti-SLAPP statute]; Navarro v.
IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 842 [alleged fraudulent statements in
connection with stipulation for entry of judgment in prior case was within anti-SLAPP
statute].)
Further, we conclude that the claims alleged by Pham arose from—or were “based
on” (Navellier, supra, 29 Cal.4th at p. 89, original italics)—Olivia’s petitioning activity that
was protected under the anti-SLAPP statute. Underlying and forming the basis for Pham’s
claims (see Park, supra, 2 Cal.5th at p. 1062) was Olivia’s conduct of executing and

. 15
submitting to the court for entry and filing the 2014 Stipulated Order in the Olivia/An
proceeding. It was through this court filing that Olivia and An both memorialized their
agreement in which Olivia exchanged her interest in personal property and furniture for
An’s transfer of his interest in the Fawnskin Home and formally effectuated the transfer of
that real property.
Pham, in asserting that Olivia’s activity was not protected under the anti-SLAPP
statute, emphasizes the alleged illegality of the agreement to transfer An’s interest in the
Fawnskin Property to Olivia, describing it as the “type[] of secret agreement[] to transfer
between spouses to avoid creditors [which] are subject to the fraudulent transfer laws.”
Pham’s claim that An and Olivia, through the 2014 Stipulated Order, accomplished a
fraudulent conveyance does not defeat the finding that Olivia established the first prong of
her special motion to strike the Complaint. A defendant may establish the first prong of
showing the activity to be constitutionally protected even if the activity is allegedly
unlawful. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165-166.)
Thus, settlement negotiations conducted during litigation have been held protected activity
under the first prong even where they were allegedly conducted in bad faith or for an
unlawful purpose. (See Seltzer, supra, 182 Cal.App.4th at pp. 964-967 [plaintiff claimed
her insurer’s attorney secretly negotiated settlement with third party that deprived plaintiff
of insurance coverage]; Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 123-
124 [protected activity found even where there were allegations of nondisclosure or
fraudulent statements made during settlement process].) “[A] court must generally presume
the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis,
and then permit the parties to address the issue in the second step of the analysis, if
necessary.” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 (Chavez).)
An exception to this principle exists where “the defendant concedes, or the evidence
conclusively establishes, that the assertedly protected speech or petition activity was illegal
as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley), see also id. at

. 16
pp. 316-317.) “In such a narrow circumstance, . . . the motion [to strike] must be denied.
The rationale is that the defendant cannot make a threshold showing that the illegal conduct
falls within the purview of the statute and promotes section 425.16’s purpose to ‘prevent
and deter “lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of
the constitutional rights of freedom of speech and petition for the redress of grievances.”
(§ 425.16, subd. (a).)’ [Citation.] If, however, a factual dispute exists about the legitimacy
of the defendant's conduct, it cannot be resolved within the first step but must be raised by
the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on
the merits.” (Id. at p. 316.) The conduct here of entering into the stipulation in the
Olivia/An proceeding that accomplished the transfer of An’s interest in the Fawnskin
Property cannot be deemed illegal, either by concession or as a matter of law. The
exception enunciated in Flatley does not apply.
Pham argues that the trial court correctly held that claims in the Complaint did not
arise out of Olivia’s protected activity because the conduct that produced the injury “was the
wrongful transfer of An’s interest in the Fawnskin Property to Olivia,” not the execution and
submission of the 2014 Stipulated Order. The trial court held: “The court’s task is to
determine the gravamen of the cause of action, not merely its label . . . . [¶] The wrongful
and injury producing conduct in this instance is the wrongful transfer of defendant An’s
interest in the Fawnskin Home to defendant Olivia. A mere agreement to transfer does not
cause plaintiff Pham any injury. Rather, it is the conduct of transferring property which
forms the basis for all of plaintiff Pham’s claims against Olivia.” (Original italics and bold.)
We conclude that the negotiation and execution of the 2014 Stipulated Order and its
submission to the court constituted activity that was constitutionally protected under the
anti-SLAPP statute.
The 2007 judgment in the Olivia/An proceeding provided that the Fawnskin Property
would be held by Olivia and An for its anticipated sale and with the sales proceeds divided
equally. The judgment—in paragraph 4, which concerned the ownership, anticipated sale

. 17
and division of the sales proceeds of the Fawnskin Property and of the Pelican Drive
Property—contained the specific provision: “The court shall reserve broad jurisdiction to
make any further orders necessary to carry out the terms of this Judgment.” Generally, after
there has been a division of property by the trial court resulting in the entry of a final
judgment, “the court loses jurisdiction to modify or alter the division made. [Citation.] An
exception to this general rule, however, arises in cases where the court expressly reserves
jurisdiction to modify a property award. [Citations.]” (Mueller v. Walker (1985) 167
Cal.App.3d 600, 605-606.) Irrespective of the alleged motivations of the parties—a matter
relevant to the merits of Pham’s claims, not whether the claims arose out of protected
activity for purposes of the first prong of the anti-SLAPP statute (see Chavez, supra, 94
Cal.App.4th at p. 1089)—the parties could appropriately seek an order modifying the
2007 judgment in the Olivia/An proceeding as a procedural mechanism for memorializing
their agreement concerning the transfer of An’s interest in the Fawnskin Property. As such,
the negotiation and execution of the 2014 Stipulated Order and its submission to the
superior court for the purpose of modifying the 2007 judgment was an integral matter in the
transfer of An’s interest in the Fawnskin Property. (See Hogoboom & King, Cal. Practice
Guide: Family Law (The Rutter Group 2019) ¶ 15:266 [when judgment awards property
with legal description, certified copy may be recorded to convey title].)
The claims asserted in the Complaint were “based on” Olivia’s conduct of
negotiating and executing the 2014 Stipulated Order and submitting it for entry and filing,
which was protected litigation activity under section 425.16. (Navellier, supra, 29 Cal.4th
at p. 89, original italics.). We conclude therefore that the claims arose out of
constitutionally protected activity and that Olivia established the first prong required to
support her anti-SLAPP motion.
B. Remand for Consideration of Probability of Prevailing
We have concluded that Olivia’s alleged underlying conduct was protected under the
anti-SLAPP statute and that Pham’s claims arose out of that conduct. The trial court did not

. 18
address the second prong of whether Pham had established a probability of prevailing on her
claims. (See § 425.16, subd. (b)(1).) Satisfying this second prong “requires only ‘a
minimum level of legal sufficiency and triability’ [citation].” (Jarrow Formulas, supra, 31
Cal.4th at p. 738.)
Olivia makes three principal arguments in asserting that Pham cannot meet her
burden of showing a probability of prevailing: (1) the litigation privilege acts as a bar to all
claims; (2) Pham did not make a sufficient evidentiary showing that her claims had minimal
merit to defeat Olivia’s motion to strike; and (3) Pham’s claims are barred because they are
an improper collateral attack on the amended judgment in the Olivia/An proceeding. For
the reasons we will discuss, post, we will address the first issue to provide guidance to the
trial court, but we will decline to address the second and third issues and will remand the
case for further proceedings on the special motion to strike for a determination of whether
Pham can establish a probability of prevailing on her claims.
1. Litigation Privilege
Olivia contends that each of Pham’s claims in the Complaint is barred by the
litigation privilege under Civil Code section 47(b). Although the plaintiff bears the burden
in resisting a special motion to strike of establishing the second prong that her claim has
merit, the defendant bears the burden of proving any affirmative defenses. (Laker v. Board
of Trustees of California State University (2019) 32 Cal.App.5th 745, 769 (Laker); see also
id. at p. 770 [defendants in arguing anti-SLAPP motion should be granted, met their burden
of establishing that defamation claim was barred by litigation privilege].) Nonetheless, in
addressing the second prong of an anti-SLAPP motion, “a plaintiff must show that any
asserted defenses are inapplicable as a matter of law or make a prima facie showing of facts
that, if accepted, would negate such defenses. [Citation.]” (Weeden v. Hoffman (2021) 70
Cal.App.5th 269, 288 (Weeden); see also Neville, supra, 160 Cal.App.4th at p. 1263, fn. 7
[if alleged conduct is subject to litigation privilege, plaintiff cannot establish probability of
prevailing to defeat an anti-SLAPP motion].) Olivia argues that because each of the claims

. 19
arises out of the 2014 Stipulated Order filed in the Olivia/An proceeding, the litigation
privilege, which attaches to communications by litigants or other participants made in
judicial proceedings, is a bar to all claims
With respect to this issue, the trial court—although addressing it in the context of its
ruling on the demurrer rather than the special motion to strike—concluded that the litigation
privilege did not bar Pham’s claims. Further, Olivia and Pham have both argued the issue
on appeal, and at oral argument have urged that, if we were to remand the case, we should
provide guidance to the trial court as to the applicability of the litigation privilege. We will
therefore address this question here as one that concerns a pure issue of law. (See Greco v.
Greco (2016) 2 Cal.App.5th 810, 826 [although trial court did not address the defense as
part of its analysis of second step of anti-SLAPP motion, appellate court considered
applicability of litigation privilege because it “presents a question of law, without any
factual or evidentiary issues”]; see also Roberts v. Los Angeles County Bar Assn. (2003) 105
Cal.App.4th 604, 615 [although trial court found, erroneously, that anti-SLAPP statute did
not apply and thus did not determine whether the plaintiff showed a probability she would
prevail, appellate court addressed second prong since its review was de novo].)10

10 From the record, it appears undisputed that An and Olivia executed and submitted
the 2014 Stipulated Order and that pursuant thereto, An’s interest in the Fawnskin Property
was conveyed to Olivia by a deed recorded on June 13, 2014. Thus, it seems clear that the
parties agree that the transfer to Olivia by interspousal grant deed of An’s interest in the
Fawnskin Property—the action taken that is the basis for Pham’s fraudulent transfer
claims—was accomplished through the execution and submission of the 2014 Stipulated
Order. In addressing the litigation privilege here, we will assume for sake of discussion
that, on remand, Pham meets her burden of establishing that her claims, including the claim
that defendants entered into an agreement to fraudulently transfer An’s interest in the
Fawnskin Property to Olivia, have “at least ‘minimal merit.’ ” (Park, supra, 2 Cal.5th at
p. 1061.) If the trial court makes that finding, then the litigation privilege would not bar
Pham’s claims. Of course, if Pham fails on remand to meet her burden of showing that her
claims have minimal merit, the court would then grant the anti-SLAPP motion, and the
Complaint would be subject to dismissal on that basis.

. 20
 As stated by the California Supreme Court, “the [litigation] privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have
some connection or logical relation to the action. [Citations.]” (Silberg v. Anderson (1990)
50 Cal.3d 205, 212.) “[T]he absolute privilege established by [Civil Code] section 47(b)
serves the important public policy of assuring free access to the courts and other official
proceedings. It is intended to ‘ “assure utmost freedom of communication between citizens
and public authorities whose responsibility is to investigate and remedy wrongdoing.” ’ ”
(Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.)
The litigation privilege only protects communications and publications. (Rusheen,
supra, 37 Cal.4th at p. 1058.) Thus, as the California Supreme Court has explained, a
threshold issue in determining whether the privilege applies “is whether . . . conduct is
communicative or noncommunicative. [Citation.] The distinction between communicative
and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is,
the key in determining whether the privilege applies is whether the injury allegedly resulted
from an act that was communicative in its essential nature.” (Ibid.) The Court in Rusheen
held further that “[t]he ‘pleadings and process in a case are generally viewed as privileged
communications.’ [Citation.]” (Ibid.) Thus, the litigation privilege has been held to apply
to “abuse of process claims alleging the filing of false or perjurious testimony or
declarations. [Citations.]” (Ibid.)
Olivia asserts that the litigation privilege applies because the “gravamen of Pham’s
claims against Olivia involved the communicative act of obtaining an amended judgment by
executing and submitting to the court” the 2014 Stipulated Order. Pham responds that the
litigation privilege does not bar the claims alleged in her Complaint because it was the
fraudulent transfer of An’s interest in the Fawnskin Property—which was not
communicative conduct—that was the gravamen of the action.

. 21
 In support of her position, Pham relies on Chen v. Berenjian (2019) 33 Cal.App.5th
811 (Chen). There, the plaintiff Chen brought suit against two brothers, Shazad (who owed
a judgment debt to Chen) and Sharmad. (Id. at p. 815.) Chen alleged that the defendants
had entered into an agreement under which Sharmad would sue Shazad and obtain a
judgment against him. (Ibid.) Sharmad filed the sham lawsuit, and the brothers stipulated
to a judgment of $199,900, an amount (it was alleged) for which “no ‘genuine grounds’ ”
existed. (Ibid.) After Chen obtained a second judgment against Shazad and attempted to
enforce the judgments, Sharmad executed upon Shazad’s property, thereby thwarting
Chen’s enforcement efforts. (Id. at p. 816.) Chen then sued Shazad and Sharmad under the
UVTA, and the brothers, through a demurrer to the complaint, successfully argued before
the trial court that Chen’s action was barred by the litigation privilege. (Ibid.)
The Court of Appeal reversed. It explained that the UVTA governed fraudulent
transfer claims. (Chen, supra, 33 Cal.App.5th at p. 817.) “The purpose of the UVTA is to
prevent debtors from placing, beyond the reach of creditors, property that should be made
available to satisfy a debt. [Citation.]” (Ibid.) Based upon a showing of actual or
constructive fraud, a creditor may obtain an order setting aside the fraudulent transfer.
(Ibid.) The Chen court acknowledged the broad application of the privilege and discussed at
length the facts and holding in Rusheen, supra, 37 Cal.4th 1048. (Chen, supra, at pp. 818-
820.) The appellate court noted further that, under Rusheen, supra, at page 1058, “the
threshold issue in determining whether the litigation privilege applies is whether the
defendant’s alleged conduct is communicative or noncommunicative. [Citation.]” (Chen,
supra, at pp. 819-820.)
The Chen court distinguished Rusheen, where the “Court concluded the
communicative conduct of procuring a judgment based on the use of allegedly fraudulent
declarations of service, and not the noncommunicative act of executing on the judgment,
was the gravamen of the abuse of process cause of action. [Citation.]” (Chen, supra, 33
Cal.App.5th at p. 821.) “[H]ere, in contrast, Chen sued for fraudulent conveyance. Under

. 22
the UVTA, it is the transfer made or the obligation incurred by the debtor which, when
made with the requisite intent or without sufficient consideration, is wrongful and, therefore,
voidable. [Citation.] Thus, the acts causing injury to Chen were the agreement to defraud
him and the transfer of the [property] from Shazad to Sharmad by means of executing on the
judgment. The acts of filing the sham complaint and agreeing to the stipulated judgment,
though communicative in nature, were not the gravamen of Chen’s fraudulent transfer cause
of action.” (Ibid., original italics.) The appellate court rejected defendant Sharmad’s
assertion that failure to apply the privilege “ ‘would frustrate the purposes of the litigation
privilege’ ” (ibid.), holding that “[l]evying on property as part of a scheme to defeat a
creditor’s rights in violation of the UVTA is not communicative conduct; therefore,
extending the litigation privilege to such conduct advances none of the privilege’s
purposes.” (Id. at p. 822.) The court concluded that if it extended the litigation privilege to
the facts alleged by Chen, it “would be providing a road map to circumventing the UVTA
and defeating the rights of creditors.” (Ibid.)
In Aghaian v. Minassian (2020) 59 Cal.App.5th 447 (Aghaian)), the court relied on
Chen in rejecting the defendants’ position that the plaintiffs’ fraudulent transfer action under
the UVTA was barred by the litigation privilege. The defendants, Shahen and Alice, had
been married for over 50 years and owned, as joint tenants, their Sherman Oaks home and a
second house across the street. (Aghaian, supra, at p. 452.) The plaintiffs alleged that the
defendants, and their codefendant son (Arthur), “ ‘concocted’ a ‘scheme . . . to hinder, delay
or defraud Shahen’s creditors, particularly [the] [p]laintiffs, by putting [the couple’s] two
houses . . . into Alice’s name only, and thereby making it more difficult for [the p]laintiffs to
levy on them.’ ” (Ibid.) The plaintiffs alleged that in furtherance of this scheme, Shahen
and Alice filed a fraudulent petition for marital dissolution—even though they had never
separated—and with their son Arthur acting as Shahen's guardian ad litem, stipulated to a
judgment in the dissolution action under which ownership of the houses was awarded to

. 23
Alice, and Shahen was assigned the obligation to pay any judgment that might thereafter be
entered in the plaintiffs’ pending lawsuit. (Id. at pp. 452-453.)
The defendants in Aghaian asserted that the litigation privilege barred the plaintiffs’
claims because the filing and prosecution of the dissolution proceeding by Alice, Shahen’s
statements and conduct in the proceeding, and the act of petitioning to appoint Arthur as
Shahen’s guardian ad litem “ ‘were all communications made during the course of judicial
proceedings.’ ” (Aghaian, supra, 59 Cal.App.5th at p. 457.) The Court of Appeal
disagreed. Relying on Chen, supra, 33 Cal.App.5th 811, the court found that “[t]he sham
lawsuit and stipulated judgment in Chen are analogous to the alleged sham dissolution
proceeding and stipulated judgment perpetrated in this case. Just as Shazad and Sharmad
used the judgment in Chen and enforcement procedures as a means for transferring Shazad’s
property to Sharmad, in the instant case Shahen and Alice (with Arthur’s aid) used the
dissolution judgment to authorize and justify Shahen’s transfer of the Sherman Oaks
properties to Alice. As in Chen, it is the transfer of the property, not the sham judicial
proceedings used to provide legal cover for the transfer, that constitutes the gravamen of
the action. Shahen’s transfer of the Sherman Oaks properties, like the transfer of Shazad’s
property to Sharmad, is not protected by the litigation privilege.” (Aghaian, supra, at
p. 458, italics added.)
If Pham establishes on remand that her fraudulent transfer claims have minimal
merit, then we believe that Chen, supra, 33 Cal.App.5th 811 and Aghaian, supra, 59
Cal.App.5th 447 are persuasive authority that the litigation privilege would not bar Pham’s
claims asserted here. The allegations made in the Complaint, coupled with the judicially-
noticed 2014 Stipulated Order, show that in April 2014, An and Olivia signed a stipulation
implementing (upon the later entry of the order) the transfer of An’s interest in the Fawnskin
Property, in exchange for Olivia’s relinquishment of any interest in furniture and personal
property located at the Pelican Drive Property, by amending the 2007 judgment in the
Olivia/An proceeding. The stipulation was signed less than one week after the issuance of

. 24
an order in the Pham/An proceeding in which An was restrained from transferring or
encumbering his interest in the Fawnskin Property. Pham alleged that in entering into this
transaction, An and Olivia had “fraudulently claimed this [property] division was not clearly
divided [sic] in the prior July 18, 2007 Judgment, even though almost 7 years had passed
since” entry of that judgment.
As alleged by Pham, the fraudulent transfer of property—as was the case in Chen and
Aghaian—was accomplished through a claimed sham legal proceeding implemented by An
and Olivia. In Chen, supra, 33 Cal.App.5th 811, the defendants (Shazad, judgment debtor
to the plaintiff, and Sharmad) participated in a sham lawsuit that resulted in the entry of a
stipulated judgment without factual basis to prevent the plaintiff from executing against
Shazad’s property. In Aghaian, supra, 59 Cal.App.5th 447, the defendants accomplished an
allegedly fraudulent transfer of the judgment debtor’s assets by instituting a new, sham
dissolution proceeding. Here, An and Olivia are alleged to have made a fraudulent transfer
of An’s assets to place them beyond the reach of creditor Pham by the device of amending
by stipulation and order a judgment that had been dormant for six and one-half years.
Although in Chen and Aghaian, the process by which the fraudulent transfer was initiated
was through the filing of a legal proceeding, while here (as alleged by Pham), the fraudulent
transfer was initiated by the filing of a collusive stipulation in an existing legal proceeding,
this is a procedural distinction without relevance. It remains the case that in Chen, Aghaian,
and here, “it is the transfer of the property, not the sham judicial proceedings used to
provide legal cover for the transfer, that constitutes the gravamen of the action.” (Aghaian,
supra, at p. 458, italics added.) Moreover, it would be anomalous were we to conclude that
the alleged conduct here is not actionable, while the same conduct of fraudulently conveying
property, accomplished without the employment of a stipulation and order filed in court,

. 25
would be subject to liability.11 An extension of the litigation privilege to Olivia’s alleged
conduct “would be providing a road map to circumventing the UVTA and defeating the
rights of creditors.” (Chen, supra, 33 Cal.App.5th at p. 822.)
We have concluded, ante, that Olivia met her burden under the first prong of the anti-
SLAPP statute because the claims alleged in the Complaint were based on Olivia’s
protected litigation activity under section 425.16 of negotiating, executing, and submitting
the 2014 Stipulated Order. That conclusion is not inconsistent with the guidance we provide
to the trial court here concerning the litigation privilege: That if Pham’s claims based upon
the fraudulent transfer of property are found on remand to have minimal merit, the litigation
privilege would not act as a bar to those claims, because the gravamen of the action is the
allegedly fraudulent transfer of property, not the vehicle of the execution of the 2014
Stipulated Order used to accomplish that transfer. As was recently explained by the Fourth
District Court of Appeal (Division One): “[A]lthough courts may use the litigation privilege
‘as an aid’ in determining whether a given communication arises out of protected activity,
the litigation privilege and anti-SLAPP statute serve different purposes and are not
necessarily coextensive. [Citations.]” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co.,
Inc. (2020) 56 Cal.App.5th 413, 428, citing Flatley, supra, 39 Cal.4th at pp. 322-323.)

11 We note further that insulating a party from liability for fraudulently conveying
property under the guise of a property stipulation and order could result in making the court
an unwitting participant in such conduct because of the lack of judicial controls inherent in
the process. As has been explained by the authors of one treatise: “The court must accept
the parties’ written agreements and oral stipulations ‘in open court’ regarding disposition of
their property. In effect, the court’s ‘only role with regard to a proper stipulated disposition
of marital property is to accept the stipulation and, if requested, to incorporate the
disposition into the judgment.’ [Citation.]” (Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2021) ¶ 8:961, original italics, quoting In re Marriage of
Cream (1993) 13 CalApp.4th 81, 91.)

. 26
 Based upon our de novo review, assuming that Pham establishes below that her
claims of fraudulent transfer have minimal merit under the second prong of the anti-SLAPP
statute, the litigation privilege under Civil Code section 47(b) would not act as a bar to her
claims. (See Weeden, supra, 70 Cal.App.5th at p. 288.)12
2. Consideration of Evidentiary Basis for Claims
The court below held that Olivia had failed to meet her burden under the first prong
of showing that the claims arose out of protected activity. Accordingly, the court did not
consider, under the second prong, whether Pham had made a sufficient evidentiary showing
that her claims had at least minimal merit to survive the special motion to strike.
In its order, the court recited that, prior to the hearing on the motion to strike, Pham
had filed an ex parte application to lift the stay on discovery—the stay being one that is
imposed by statute once an anti-SLAPP motion is filed. (See § 425.16, subd. (g).)13 The

12 After briefing was completed, Olivia brought to this court’s attention the recent
case of Weeden, supra, 70 Cal.App.5th 269, urging that it had a bearing on the issues of
protected activity under the anti-SLAPP statute and the application of the litigation
privilege. Weeden concerned a lawsuit for quiet title, cancellation of instrument, and
slander of title arising out of the defendant’s recordation of an abstract of judgment. (Id. at
p. 280.) The court concluded, inter alia, that the litigation privilege applied to bar the
plaintiffs’ tort claim for slander of title that was based upon the communicative activity of
obtaining an abstract of judgment and creating a judgment lien against the plaintiffs’
property by recording the abstract. (Id. at p. 293.) Weeden, unlike the case here, did not
involve (a) a fraudulent transfer claim under the UVTA; (b) a claim arising out of
noncommunicative conduct, namely, the alleged fraudulent transfer of property; or (c) the
use of allegedly sham judicial proceedings to accomplish such noncommunicative conduct.
Weeden is not helpful to our analysis in this case.
13 “All discovery proceedings in the action shall be stayed upon the filing of a notice

of motion made pursuant to this section. The stay of discovery shall remain in effect until
notice of entry of the order ruling on the motion. The court, on noticed motion and for good
cause shown, may order that specified discovery be conducted notwithstanding this
subdivision.” (§ 425.16, subd. (g).) Under that statute, it is in the trial court’s discretion to
grant or deny a motion for discovery. (See Tutor-Saliba Corp. v. Herrera (2006) 136
Cal.App.4th 604, 618.)

. 27
court recited further that the court denied the ex parte application, but it permitted Pham to
file a motion for discovery to be heard with Olivia’s motion to strike and demurrer. Pham in
fact filed the motion, but because the court denied Olivia’s motion to strike, it denied
Pham’s motion for discovery on the ground that it was moot.14 Additionally, although Pham
filed written objections to Olivia’s evidence, the court did not rule on the objections in its
order.15
In light of our reversal of the court’s order denying the special motion to strike, it is
appropriate to remand the matter to the trial court so that it may consider the evidence
presented on the second prong of the special motion to strike—including ruling on any
objections to evidence asserted by the parties—to determine whether Pham has satisfied her
burden of establishing that her claims have minimal merit. In conjunction therewith, and
prior to addressing the second prong of the anti-SLAPP motion, the trial court should
consider and rule on the merits of Pham’s motion for discovery, and it should consider any
additional papers that it may permit the parties to file in connection with the motion to
strike.
3. Collateral Attack on Amended Judgment
Olivia contends that the claims asserted by Pham in the Complaint represent an
improper collateral attack on the amended judgment obtained in the Olivia/An proceeding
through the execution and entry of the 2014 Stipulated Order. Olivia argues that Pham

14
The ex parte application, order denying the application, and the motion for
discovery are not part of the record before us.
15 The evidence presented to which Pham objected concerned statements in Olivia’s

declaration regarding the condition and value of the furniture and personal property that
were the subjects of her challenged agreement with An in the 2014 Stipulated Order.
Because this evidence was relevant to whether Pham’s claims have minimal merit—i.e., the
second prong to be considered in addressing Olivia’s special motion to strike that the trial
court did not address—it is not surprising that the court did not address the objections.

. 28
should have either directly attacked the amended judgment or attacked it collaterally by
demonstrating that the Superior Court, County of Orange, had no jurisdiction to enter the
amended judgment.
Preliminarily, we observe that this argument is not well-developed. It would thus be
appropriate for this court to deem the argument forfeited. (See Stuard v. Stuard (2016) 244
Cal.App.4th 768, 780 [appellate court may deem appellant’s undeveloped argument
forfeited].)
Further, Olivia’s argument appears to run contrary to the nature and purpose of the
UVTA. A creditor may assert under the UVTA a claim that a transfer made or obligation
occurred is voidable “if the debtor made the transfer or incurred the obligation as follows:
[¶] (1) With actual intent to hinder, delay, or defraud any creditor of the debtor.
[¶] (2) Without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor either: [¶] (A) Was engaged or was about to engage in a business
or a transaction for which the remaining assets of the debtor were unreasonably small in
relation to the business or transaction. [¶] (B) Intended to incur, or believed or reasonably
should have believed that the debtor would incur, debts beyond the debtor's ability to pay as
they became due.” (Civ. Code, § 3439.04, subd. (a).)
As held by the California Supreme Court, “The California Legislature has a general
policy of protecting creditors from fraudulent transfers, including transfers between spouses.
A transfer before dissolution can be set aside as a fraudulent conveyance. [Citations.] A
transfer after dissolution can be set aside under the clear terms of the [UVTA]. When the
court divides the marital property in the absence of an agreement by the parties, it must
divide the property equally [citation], which provides some protection for a creditor of one
spouse only. In view of this overall policy of protecting creditors, it is unlikely that the
Legislature intended to grant married couples a one-time-only opportunity to defraud
creditors by including the fraudulent transfer in [a marital settlement agreement].” (Mejia v.
Reed (2003) 31 Cal.4th 657, 668 (Mejia).) In Mejia, a third party brought an independent

. 29
action under the UVTA challenging a marital settlement agreement implementing an alleged
fraudulent transfer by the plaintiff’s debtor. That marital settlement agreement had been
merged into a final judgment in the dissolution proceeding. (Id. at p. 662.) Although the
Court in Mejia did not address the argument that the plaintiff’s UVTA action was barred
because it was an improper collateral attack on the judgment in the dissolution proceeding,
the holding in Mejia quoted above suggests that the argument would have been unavailing.16
But issues concerning fraudulent conveyance claims are questions of fact. “Whether
a conveyance was made with fraudulent intent is a question of fact, and proof often consists
of inferences from the circumstances surrounding the transfer. [Citations.]” (Filip v.
Bucurenciu (2005) 129 Cal.App.4th 825, 834.) And “[w]hether a transfer is made with
fraudulent intent and whether a transferee acted in good faith . . . are questions of fact.
[Citation.]” (Nautilus, Inc. v. Yang (2017) 11 Cal.App.5th 33, 40.) Accordingly, since we
remand the case for the court to consider the evidentiary showing made by the parties to
assess whether Pham has met her burden of showing that her case has minimal merit, we
will defer to the trial court a determination as to whether any or all of the claims are, as
asserted by Olivia, an improper collateral attack on the amended judgment.
III. DISPOSITION
The order denying appellant Olivia Nguyen’s special motion to strike respondent
Thuy Pham’s first amended complaint pursuant to the special motion to strike under section
425.16 is reversed. The case is remanded to the trial court for further consideration of the
second prong of the motion to strike. The court shall, in conjunction with the motion to
strike, first consider the merits of respondent’s motion to lift the discovery stay. In

16Additionally, it would be anomalous to permit a creditor to bring an independent
UVTA action to challenge an alleged fraudulent conveyance in a stand-alone marital
settlement, while barring such an action where that agreement was merged in a judgment
based upon the latter constituting a collateral attack on the judgment.

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addressing the second prong of the motion to strike, the court shall consider the evidence
presented to determine whether Pham’s claims have minimal merit, and it shall consider
Olivia’s collateral attack argument. In the event the court determines that Pham’s claims
based upon the fraudulent conveyance of property have minimal merit and that the claims
are not barred as an improper collateral attack on a judgment, then the litigation privilege
defense asserted by Olivia will not act as a bar to Pham’s claims under the second step of
the analysis of the special motion to strike.
Each party shall bear her respective costs on appeal.

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 BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

DANNER, J.

Pham v. Nguyen
H047433