Leizorto v. Corvino CA2/2

Filed 8/31/22 Leizorto v. Corvino CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

LEIZORTO, LLC, et al., B313565

Cross-complainants and (Los Angeles County
Appellants, Super. Ct. No. 20STCV14055)

v.

RONALD CORVINO et al.,

Cross-defendants and
Respondents.

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Rupert Byrdsong, Judge. Affirmed.
Law Offices of Lloyd S. Pantell, Lloyd S. Pantell; and
Michael Mendelson for Cross-complainants and Appellants.
FitzGerald Kreditor Bolduc Risbrough, Eoin L. Kreditor
and Brook J. Changala for Cross-defendants and Respondents.
No appearance for Cross-defendants and Respondents John
Finton and Steven Duddy.
 Cross-complainants and appellants Leizorto, LLC
(Leizorto) and Chandra Kusmanto (collectively, appellants)
appeal from the judgment entered in favor of cross-defendants
and respondents Ronald Corvino, individually and as trustee of
the Ronald Corvino Separate Property Family Trust dated
March 25, 2015, Eoin Kreditor, FitzGerald Kreditor Bolduc
Risbrough LLP (FKBR),1 Pedram Cohen, and Summit View Luxe,
LLC (Summit View) (collectively, respondents), awarding
respondents $23,855.50 in attorney fees after the trial court
granted respondents’ special motion to strike, under Code of Civil
Procedure section 425.16,2 portions of appellants’ cross-complaint
and dismissing with prejudice their cause of action for fraud and
deceit. Appellants also appeal from the order granting the anti-
SLAPP motion. We affirm the judgment and the order granting
the anti-SLAPP motion.

BACKGROUND
The parties and the properties
Corvino, as trustee, is the owner of real property located at
1731 Summitridge Drive in Los Angeles, California. Summit
View is a California limited liability company doing business at
1731 Summitridge. Kreditor is an attorney who represents
Corvino and Summit View. FKBR is Kreditor’s law firm.

1 FKBR was formerly known as FitzGerald Yap Kreditor
LLP.
2 All further statutory references are to the Code of Civil
Procedure, unless stated otherwise. Section 425.16 is sometimes
referred to as the anti-SLAPP statute. SLAPP is an acronym for
strategic lawsuit against public participation.

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 Leizorto is a California limited liability company that owns
1735 Summitridge Drive, a property directly north of and
contiguous to 1731 Summitridge. Christopher Tanuwidjaja is the
owner and operator of Leizorto. Kusmanto manages 1735
Summitridge.
Respondents’ action and appellants’ cross-action
In April 2020, Corvino, as trustee, and Summit View sued
Leizorto, Tanuwidjaja, and Kusmanto. The first amended
complaint (FAC) alleges that while remodeling 1731
Summitridge, Corvino obtained approval to install a new sewer
line to connect to the municipal main sewer line. The main sewer
line is located on a utility easement in favor of the City of Los
Angeles (the City). The FAC further alleges that when installing
the new sewer line, Corvino discovered that an unpermitted
sewer line from 1735 Summitridge was connected to the main
sewer line. The City instructed Corvino to cap the unpermitted
sewer line from 1735 Summitridge before installing the new line
for 1731 Summitridge. Because capping the sewer line would be
problematic for the owners and occupants of 1735 Summitridge,
Corvino contacted Kusmanto so that Leizorto could take
appropriate steps to protect its property. The FAC further
alleges that on June 16, 2019, Kusmanto, on behalf of Leizorto,
agreed to remove the unpermitted sewer line at Leizorto’s
expense. The FAC alleges that Leizorto breached the agreement
to remove the unpermitted sewer line and asserts claims for
breach of contract, specific performance, nuisance, breach of
implied warranty of authority, and fraud in the inducement.
Appellants answered the FAC and cross-complained
against respondents and John Finton and Steve Duddy. The
operative first amended cross-complaint (FACC) asserts causes of

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action for fraud and deceit, negligent misrepresentation,
intentional and negligent interference with contractual
relationships, interference with prospective economic relations,
trespass, abuse of process, violation of Government Code section
36900, subdivision (a), nuisance, and declaratory relief.
The FACC alleges that Corvino’s attorneys, Kreditor and
FKBR, in a September 18, 2019 letter to appellants, made
intentionally false representations about the allegedly
unpermitted sewer line. Kreditor’s September 18, 2019 letter
states that FKBR represents Corvino and Summit View, that in
the course of obtaining a permit to install a new sewer line on the
1731 Summitridge property, Corvino discovered that 1735
Summitridge has an illegal sewer line connected to the municipal
main sewer line. The letter states in relevant part:
“The illegal sewer line constitutes an immediate
health and safety concern because, given its age, size
and condition, it may burst at any time, causing
substantial harm to the hillside and to all homes
below. The City of Los Angeles is instructing Corvino
to cap the 1735 Summitridge illegal sewer line before
it installs the new sewer line.”
The letter further states that Kusmanto, acting as
Leizorto’s agent, agreed to have the illegal sewer line removed at
Leizorto’s expense. The letter asks Leizorto to confirm that
agreement in writing and advises Leizorto that Corvino intends
to proceed with installation of a new sewer line for 1731
Summitridge and to cap the existing sewer line from 1735
Summitridge. The letter warns Leizorto that “[a]ny losses or
damages incurred as a result of such activities will be your
responsibility, and you will be acting at your own peril.”

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 Appellants’ cross-claim against respondents for fraud and
deceit is based on alleged misrepresentations in Kreditor’s
September 18, 2019 letter. In their first cause of action for fraud,
appellants allege that Kreditor, acting in concert with, and with
the consent of the other respondents, made false representations
in the September 18, 2019 letter about the sewer line at 1735
Summitridge. The letter was sent to appellants and to the tenant
then residing in 1735 Summitridge.
The FACC alleges that the representations in the
September 18, 2019 letter were false. The FACC states that a
January 23, 2012 certificate of occupancy issued to Leizorto’s
predecessor in interest after the existing home was remodeled
shows that the City approved the sewer connection from 1735
Summitridge and attaches a copy of the January 23, 2012
certificate of occupancy as an exhibit.
The FACC further alleges that upon receipt of the
September 18, 2019 letter the tenant at 1735 Summitridge
vacated the property, and appellants relied on the
representations contained in the letter to their financial
detriment by not re-leasing the property until they verified the
representations were false.
In addition to the allegations in the fraud cause of action,
the FACC expressly references or incorporates by reference the
September 18, 2019 letter in paragraphs 25, 48, 58, 63, 66, 71, 77,
82, 86, 89, 93, 108, 109, 121, and 128 of the FACC.
Anti-SLAPP motion
Respondents filed an anti-SLAPP motion, seeking to strike
or dismiss the fraud cause of action and all allegations in the
FACC based on the September 18, 2019 letter. Respondents
argued that the September 18, 2019 letter was an act in

5
furtherance of the right of petition under section 425.16,
subdivision (e)(1) and (2) and protected by the litigation privilege
set forth in Civil Code section 47, subdivision (b). The anti-
SLAPP motion was supported by, among other things, a
declaration by Kreditor stating that his September 18, 2019
letter “was prepared and sent in anticipation of litigation.”
Respondents requested an award of attorney fees and costs
against appellants in the amount of $23,855.50.
Appellants opposed the anti-SLAPP motion, arguing that
the September 18, 2019 letter was not protected by section 425.16
because it did not concern a “public issue” or issue of “public
interest,” but a private dispute between the parties.3 Appellants
also claimed their use of the September 18, 2019 letter in the
FACC was “evidentiary only,” as it showed Kreditor’s complicity
in “a conspiracy to ‘take’ [Leizorto’s] property unlawfully.”
Appellants further argued the litigation privilege did not apply
because Kreditor’s letter contained false statements. Appellants’
opposition was supported by the declaration of their attorney,
Michael Mendelson, who cited his previous legal experience and
opined that respondents’ motion was frivolous. Appellants
subsequently filed a supplemental memo to their opposition in
which they argued the September 18, 2019 letter contained false
statements.
Respondents’ reply to appellants’ opposition included a
September 20, 2019 e-mail to Kusmanto from Tao Yang, a civil
engineer with the City’s Department of Public Works. The e-mail
states:
“The old connection on 1735 [Summitridge] was an
unpermitted connection that was crossing the

3 Appellants do not reassert this argument on appeal.

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 neighbor’s lot without easement and was a potential
environmental hazard.
“We gave permission to the contractor of 1731
[Summitridge] to provide a wye[4] . . . in the new
sewer mainline that they are construction [sic], so
that 1735 [Summitridge] can reconnect their sewer
legally at the new location.”
At the April 6, 2021 hearing on the anti-SLAPP motion the
trial court stated its tentative ruling to grant the motion, heard
argument from counsel, and adopted its tentative ruling. The
April 6, 2021 minute order states that the trial court granted
respondents’ motion to strike the first cause of action and select
allegations of the FACC. The trial court also granted
respondents’ request for attorney fees and costs against
appellants in the amount of $23,855.50.
A judgment in respondents’ favor was entered on June 8,
2021 awarding them attorney fees under section 425.16,
subdivision (c)(1) in the amount of $23,855.50. This appeal
followed.

DISCUSSION
I. Applicable law and standard of review
Section 425.16, subdivision (b)(1) provides in relevant part:
“A cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the

4 Respondents believe “wye” refers to a “wye connection,” a
Y-shaped fitting solution that joins three pipes together.

7
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” A special motion to strike
under section 425.16 may be directed not only to causes of action
arising out of protected activity, but also to specific allegations of
protected activity within a pleaded claim for relief that also
includes allegations of unprotected activity. (Baral v. Schnitt
(2016) 1 Cal.5th 376, 395.)
Determining whether the statute bars a given cause of
action or allegation requires a two-step analysis. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court
must decide whether the party moving to strike has made a
threshold showing that the cause of action or allegation “aris[es]
from any act . . . in furtherance of the [moving party’s] right of
petition or free speech.” (§ 425.16, subd. (b)(1); accord, Navellier,
at p. 88.) If the court finds that a defendant has made the
requisite threshold showing, the burden then shifts to the
plaintiff to demonstrate a “probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1); accord, Navellier, at
p. 88.) In order to demonstrate a probability of prevailing, a
party opposing a special motion to strike under section 425.16
“‘“must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.”’” (Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 741 (Jarrow).)
We review de novo a trial court’s order granting a special
motion to strike under section 425.16. (ComputerXpress, Inc. v.
Jackson (2001) 93 Cal.App.4th 993, 999.)

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II. Protected activity
Section 425.16, subdivision (e) defines 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” to include “any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law,” and “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.”
(§ 425.16, subd. (e)(1), (2).) Statements, writings and pleadings
in connection with civil litigation come within this category of
speech and conduct protected by the anti-SLAPP statute. (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1115 (Briggs); Healy v. Tuscany Hills Landscape & Recreation
Corp. (2006) 137 Cal.App.4th 1, 5.) Statements made in
anticipation of civil litigation also fall within this category.
(Briggs, at p. 1115.) If a statement comes within the category of
activities protected under section 425.16, subdivision (e)(1) and
(2), a defendant moving to strike a cause of action or allegation
based on that statement need not show that the statement was
made in connection with a public issue. (Briggs, at p. 1123.)
An attorney-defendant may invoke the protections of the
anti-SLAPP statute when sued for communicative conduct while
representing clients in litigation. (See, e.g., Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056 (Rusheen).) “Under the plain
language of section 425.16, subdivision (e)(1) and (2), as well as
the case law interpreting those provisions, all communicative
acts performed by attorneys as part of their representation of a
client in a judicial proceeding or other petitioning context are per

9
se protected as petitioning activity by the anti-SLAPP statute.”
(Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.)
In deciding whether a defendant has satisfied the initial
burden of establishing that the challenged acts arise from
protected activity under section 425.16, a court considers “‘the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’ (§ 425.16,
subd. (b).)” (Navellier, supra, 29 Cal.4th at p. 89.)
Examination of the pleadings, declarations, and
documentary evidence submitted in this case shows that
appellants’ cause of action for fraud and deceit is premised upon
Kreditor’s representation of Corvino and Summit View in
anticipation of a lawsuit against appellants. Kreditor’s
declaration filed in support of the anti-SLAPP motion confirms
that his September 18, 2019 letter “was prepared and sent in
anticipation of litigation.” As a general rule, a demand letter or
other communication sent in anticipation of litigation constitutes
speech or petitioning activity protected under the anti-SLAPP
statute. (Briggs, supra, 19 Cal.4th at p. 1115.)
The gravamen of appellants’ fraud and deceit cause of
action is alleged false statements contained in Kreditor’s
September 18, 2019 letter. The September 18, 2019 letter is
attached as an exhibit to the FACC. Paragraph 48 of the FACC
quotes portions of the letter referring to the health and safety
concerns presented by the illegal sewer line from Leizorto’s
property and asks Leizorto to cap the illegal sewer line in
accordance with the parties’ previous agreement to do so.
Paragraphs 49 through 57 of the FACC further allege that the
statements made in the September 18, 2019 letter were false,
that Kreditor and FKBR owed appellants a legal duty to refrain

10
from making false statements, and that appellants relied on the
false statements to their financial detriment and damage.
Appellants’ fraud cause of action is thus premised on Kreditor’s
communicative acts performed in his representation of Corvino
and Summit View in anticipation of litigation—protected
petitioning activity under section 425.16, subdivision (e)(1) and
(2).
We reject appellants’ argument that the September 18,
2019 letter is evidence of a conspiracy to take their property
unlawfully and, therefore, not protected speech or conduct under
section 425.16. Conclusory allegations of conspiracy do not
deprive Kreditor’s communicative acts of their protected status.
(Contreras v. Dowling (2016) 5 Cal.App.5th 394, 413 (Contreras).)
The FACC does not allege a conspiracy to take appellants’
property. The only conspiracy alleged is one “to fraudulently
induce [Leizorto] to grant and pay for a sewer connection.” The
only fraudulent conduct alleged is the September 18, 2019 letter.
That letter is the sole basis for appellants’ fraud and deceit cause
of action. It is not merely incidental or collateral to that cause of
action, nor is it merely evidence of conspiratorial conduct.
Appellants’ reliance on Spencer v. Mowat (2020) 46
Cal.App.5th 1024 (Spencer) as support for their position is
unavailing. The plaintiffs in Spencer sued certain defendants for
their participation in a conspiracy to intimidate and harass
visitors to keep them away from a popular surfing beach. The
causes of action alleged included assault, battery, and public
nuisance. (Id. at p. 1029.) The complaint alleged that two
defendants were liable as coconspirators because although they
did not personally participate in the tortious conduct, they incited
others to do so by sending group text messages to the other

11
defendants whenever the plaintiffs appeared at the beach. (Id. at
pp. 1030-1031.) The coconspirator defendants filed anti-SLAPP
motions, which the trial court denied. The appellate court in
Spencer concluded the anti-SLAPP motions were properly denied
because the acts in which the defendants were alleged to have
conspired—intimidation, harassment, threats, rock-throwing,
and theft—were not protected speech or petitioning activity. (Id.
at p. 1040.)
Here, in contrast, the tortious conduct in which
respondents are alleged to have conspired is itself protected
activity under section 425.16. The allegedly false statements
contained in the September 18, 2019 letter constitute protected
speech and petitioning activity. (§ 425.16, subd. (e)(1), (2);
Briggs, supra, 19 Cal.4th at p. 1115; Contreras, supra, 5
Cal.App.5th at p. 416.) Spencer is accordingly inapposite.
Respondents met their burden of demonstrating that
appellants’ cross-claim for fraud and deceit is premised on the
September 18, 2019 letter, which constitutes protected speech or
petitioning activity under section 425.16. The burden accordingly
shifted to appellants to establish a probability of prevailing on
the merits.
III. Probability of prevailing
To meet their burden of demonstrating a probability of
prevailing on their cross-claim for fraud and deceit, appellants
must show that their cross-claim is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence they submitted is credited.
(Jarrow, supra, 31 Cal.4th at p. 741.) Appellants failed to do so.
“The elements of fraud that will give rise to a tort action for
deceit are: ‘“(a) misrepresentation (false representation,

12
concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.”’” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) The
absence of any of these required elements precludes recovery.
(Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 101.)
Appellants failed to present evidence to support the
requisite elements of their fraud cross-claim. The 2012 certificate
of occupancy appellants presented as evidence that
representations in the September 18, 2019 letter about the 1735
Summitridge sewer line were false does not establish that
respondents’ representations were false or that respondents knew
they were false at the time they were made. Appellants also
failed to establish that respondents made those representations
with the intent to defraud. Respondents, on the other hand,
presented evidence, in the form of a September 2019 e-mail to
Kusmanto from city engineer Yang, that the 1735 Summitridge
sewer line was unpermitted and a potential hazard. Because
appellants cannot establish the requisite elements of fraud, they
failed to demonstrate a probability of prevailing on their cause of
action for fraud and deceit.
Appellants also cannot establish a probability of prevailing
because their fraud claim is premised on the September 18, 2019
letter, and that letter is protected by the litigation privilege. The
litigation privilege is codified in Civil Code section 47: “[a]
privileged publication or broadcast is one made . . . [¶] . . . [¶]
[i]n any . . . judicial proceeding . . . .” (Civ. Code, § 47, subd. (b).)
“‘[T]he 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

13
litigation; and (4) that have some connection or logical relation to
the action. [Citations.]’ [Citation.] Thus, ‘communications with
“some relation” to judicial proceedings’ are ‘absolutely immune
from tort liability’ by the litigation privilege [citation]. It is not
limited to statements made during a trial or other proceedings,
but may extend to steps taken prior thereto, or afterwards.”
(Rusheen, supra, 37 Cal.4th at p. 1057.)
The litigation privilege is “relevant to the second step in the
anti-SLAPP analysis in that it may present a substantive defense
a plaintiff must overcome to demonstrate a probability of
prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, 323
(Flatley).) The litigation privilege is an “absolute” privilege, and
it bars all tort causes of action except claims of malicious
prosecution and conduct that constitutes criminal extortion as a
matter of law. (Id. at pp. 322, 333.) The privilege has also been
held to apply to “statements made prior to the filing of a lawsuit.”
(Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.)
The litigation privilege applies to Kreditor’s September 18,
2019 letter. The letter was sent in anticipation of litigation. It
concerns the subject of the anticipated lawsuit and Corvino’s and
Summit View’s litigation objective—enforcement of Leizorto’s
agreement to remove its unpermitted sewer line.
Appellants contend the litigation privilege does not apply
because the September 18, 2019 letter contains false statements.
The law, however, is to the contrary. (See Kashian v. Harriman
(2002) 98 Cal.App.4th 892, 920 [“communications made in
connection with litigation do not necessarily fall outside the
privilege simply because they are, or are alleged to be,
fraudulent, perjurious, unethical, or even illegal”].) As discussed,
the litigation privilege is absolute, and it bars all tort causes of

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action except claims of malicious prosecution and conduct that
constitutes criminal extortion as a matter of law. (Flatley, supra,
39 Cal.4th at p. 322.)
Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon &
Gladstone (2003) 107 Cal.App.4th 54, which appellants cite as
support for their position, is distinguishable. Contrary to
appellants’ suggestion, Shafer does not apply a blanket rule that
the litigation privilege is inapplicable to an attorney’s allegedly
fraudulent statements. The court in that case held that the
litigation privilege did not shield an attorney from liability for
fraudulent statements about the scope of insurance coverage in a
letter to the judgment creditor of the insured seeking to exercise
his rights under Insurance Code section 11580. That statute
allows a judgment creditor of an insured to sue the insurer under
the insured’s policy to recover on a judgment. (Ins. Code,
§ 11580, subd. (b)(2); Shafer, at pp. 80-81.) The court in Shafer
explained that “[t]he litigation privilege is not a license to deceive
an injured party who steps into the shoes of the insured. . . .
Section 11580 [of the Insurance Code] grants an injured party the
right to file suit in order to recover under the insurance policy.
Coverage counsel may not commit fraud in an attempt to defeat
that right. And to the extent there is a conflict between an
injured party’s rights under section 11580 and coverage counsel’s
reliance on the litigation privilege [citation], the rights of the
injured party prevail as they arise under the more specific of the
two statutes.” (Shafer, at p. 81.) This case does not involve
Insurance Code section 11580. Shafer accordingly is inapposite.
Appellants make several arguments on appeal that they
did not assert in the trial court below: (1) Respondents lack
standing under section 425.16 because they have no primary

15
right to support the breach of contract cause of action in the FAC;
(2) no valid contract exists; (3) certain allegations were not
properly identified in the special motion to strike; (4) the
September 18, 2019 letter constitutes extortion; (5) the fees
requested in the anti-SLAPP motion were unreasonable; (6)
Corvino violated the Los Angeles Municipal Code; (7)
respondents’ breach of contract action is an artifice to mislead the
court, in violation of Business and Professions Code section 6068,
subdivision (d); and (8) the unclean hand doctrine bars
respondents from obtaining relief. Appellants forfeited these
arguments, which were not raised in the trial court below. (See
Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d
124, 143 [appellate courts generally will not consider matters
presented for first time on appeal]; Feduniak v. California
Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise
issue in trial court waives or forfeits issue on appeal].)
The trial court did not err by granting the anti-SLAPP
motion.

DISPOSITION
The judgment is affirmed as is the order granting the anti-
SLAPP motion. Respondents shall recover their costs on appeal.

________________________
CHAVEZ, J.

We concur:

________________________ ________________________
LUI, P. J. HOFFSTADT, J.

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