Filed 9/14/22 Watkins v. D’Orio CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DONNA WATKINS, B310902
Plaintiff, Cross-defendant (Los Angeles County
and Appellant, Super. Ct. No. 20LBCV00266)
v.
ELENA D’ORIO,
Defendant, Cross-
complainant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Reversed.
Adler Law and Robert C. Adler for Plaintiff, Cross-
defendant and Appellant.
Hall Griffin, Howard D. Hall, Jeremy T. Katz and Ryan C.
Thomason for Defendant, Cross-complainant and Respondent.
Plaintiff, cross-defendant, and appellant Donna Watkins
appeals from the order denying her special motion to strike,
under Code of Civil Procedure section 425.16,1 the cross-
complaint filed by defendant, cross-complainant, and respondent
Elena D’Orio. While this appeal was pending, D’Orio dismissed
her cross-complaint and filed a motion in this court to dismiss the
appeal as moot. Watkins opposed the motion, arguing the appeal
was not moot because reversal of the trial court’s order would
accord her the right to seek attorney fees under section 425.16.
We denied the motion to dismiss.
In her appellate brief, D’Orio again argues the appeal is
moot. It is not. We therefore consider the order denying the anti-
SLAPP motion and conclude that D’Orio’s cross-complaint arises
out of Watkins’s exercise of her right of petition, protected
activity under the anti-SLAPP statute. We further conclude that
D’Orio has not shown a probability of prevailing on the merits of
her cross-claims. We reverse the order denying Watkins’s special
motion to strike and direct the trial court to reinstate D’Orio’s
cross-complaint and to issue an order granting the anti-SLAPP
motion and striking the cross-complaint.
BACKGROUND
The parties
Watkins is the owner of a single-family residence located at
3760 California Avenue in Long Beach, California. She has
owned that property since February 2000.
1 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.
2
D’Orio owns a single family residence located at 3758
California Avenue (the D’Orio property), next door to Watkins’s
property. D’Orio’s predecessors in interest, Michael and Heather
Kimel, owned the D’Orio property from September 2016 to
June 3, 2020, when they sold it to D’Orio.
Watkins’s action against the Kimels
On August 6, 2018, the Kimels filed an action against
Watkins asserting causes of action for willful trespass, negligent
trespass, quiet title, intentional misrepresentation, and
declaratory relief, alleging that Watkins’s garage, a block wall, a
fence, and an archway between the two properties unlawfully
encroached on the Kimel property (which would become the
D’Orio property). The Kimels dismissed without prejudice their
complaint against Watkins on November 4, 2019.
After the Kimels dismissed their complaint, the dispute
between the neighbors continued, and on May 28, 2020, Watkins
filed a quiet title action against the Kimels. Watkins served a lis
pendens on the Kimels (the first lis pendens) by regular mail and
by certified mail, return receipt requested, on June 4, 2020. The
receipt was signed by Heather Kimel on June 6, 2020, and
returned to Watkins’s counsel. The first lis pendens identified
the action, filed on May 28, 2020, and alleged a real property
claim against the D’Orio property. The Kimels moved out of their
home on June 13, 2020. The following day, Watkins learned of
the Kimels’ sale to D’Orio. Because of the Kimels’ move,
Watkins’s counsel did not record the lis pendens.
Watkins’s action against D’Orio and D’Orio’s cross-
complaint
On June 15, 2020, Watkins identified D’Orio as “Defendant
Doe 1” and thereafter dismissed the Kimels from the action.
3
Subsequent efforts to resolve the matter informally between
Watkins and D’Orio were unsuccessful.
Watkins filed a first amended complaint (FAC) against
D’Orio on September 20, 2020, asserting causes of action for quiet
title—prescriptive easement, quiet title—equitable easement,
and declaratory relief. Watkins served D’Orio with the FAC on
September 21, 2020. Watkins served a lis pendens on D’Orio (the
second lis pendens) by certified mail, return receipt requested.
The second lis pendens identified the action, filed on May 28,
2020, and alleged a real property claim. D’Orio signed the
certified mail receipt on October 1, 2020, and Watkins’s counsel
received the receipt on October 15, 2020.
The parties’ attorneys then exchanged communications
regarding Watkins’s quiet title action and a possible cross-claim
by D’Orio for slander of title. While these discussions were
occurring, Watkins’s counsel refrained from recording the second
lis pendens. The record does not indicate whether the second lis
pendens was ever recorded.
On November 4, 2020, D’Orio filed a cross-complaint
against Watkins for slander of title and intentional infliction of
emotional distress.
Anti-SLAPP motion
Watkins filed a special motion to strike D’Orio’s cross-
complaint pursuant to section 425.16, arguing that the claims
asserted therein arose out of Watkins’s quiet title action and
service of the first and second lis pendens—protected activities
under section 425.16 and subject to the litigation privilege under
Civil Code section 47. D’Orio argued in opposition that Watkins’s
failure to record the lis pendens violated section 761.010, D’Orio
had no notice of Watkins’s pending action when she purchased
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her property, the litigation privilege did not protect Watkins’s
violation of the statutory recording requirement, and failure to
record the lis pendens precluded Watkins from obtaining a quiet
title judgment against D’Orio.
On February 9, 2021, the trial court issued a minute order
denying the anti-SLAPP motion. Watkins filed and served a
notice of appeal on February 16, 2021.
DISCUSSION
I. Mootness
The sole argument D’Orio raises in this appeal is that it
should be dismissed as moot given her voluntary dismissal of the
cross-complaint on May 18, 2022, while this appeal was pending.
“As a general matter, a plaintiff may voluntarily dismiss
the complaint with or without prejudice upon request to the court
clerk, prior to trial. [Citation.] Once a notice of appeal has been
filed in the trial court, however, section 916 provides for an
automatic stay of trial court proceedings ‘upon the matters
embraced’ in or ‘affected’ by the appeal.” (Curtin Maritime Corp.
v. Pacific Dredge & Construction, LLC (2022) 76 Cal.App.5th 651,
665 (Curtin).)
The trial court proceedings were stayed when Watkins filed
her notice of appeal on February 16, 2021, and the trial court
lacked jurisdiction to dismiss D’Orio’s cross-complaint. The
erroneous dismissal of the cross-complaint impacts this appeal,
as it could foreclose Watkins’s ability to recover attorney fees as
the prevailing party under section 415.16. Because the trial
court lacked jurisdiction to dismiss the cross-complaint, that
dismissal is void and does not render this appeal moot. (Curtin,
supra, 76 Cal.App.5th at p. 665.)
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II. Anti-SLAPP motion
A. Applicable law and standard of review
Section 425.16, subdivision (b)(1) provides: “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the 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.”
Determining whether the statute bars a given cause of
action 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 a cause of action has made a
threshold showing that the cause of action “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.)
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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.)
B. Protected activity
Section 425.16 defines an “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” to include statements or writings made
before a judicial proceeding or made in connection with an issue
under consideration or review by a judicial body. (§ 425.16, subd.
(b)(1).) Statements, writings and pleadings in connection with
civil litigation are therefore 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.) Service of a lis
pendens comes within this protection. (See Manhattan Loft, LLC
v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050
(Manhattan Loft) [filing of notice of lis pendens “falls squarely”
within definition of protected activity under § 425.16].)
D’Orio argued in the trial court below that Watkins’s
failure to record the lis pendens immediately upon the filing of
her complaint as required by section 761.0102 rendered the lis
pendens void and illegal as a matter of law and therefore not
protected by the anti-SLAPP statute. D’Orio forfeited this
argument by failing to argue it on appeal. (Browne v. County of
1 Section 761.010, subdivision (b) states: “Immediately upon
commencement of [a quiet title] action, the plaintiff shall file a
notice of the pendency of the action in the office of the county
recorder of each county in which any real property described in
the complaint is located.”
7
Tehama (2013) 213 Cal.App.4th 704, 726 [failure to raise
argument in opening brief forfeits the argument].) Even absent
such forfeiture, the argument is without merit.
Under the first prong of the anti-SLAPP analysis, an
activity is not protected as a matter of law only when the
evidence conclusively establishes its illegality. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 319-320.) Otherwise, it is an issue to be
addressed when the party opposing the anti-SLAPP motion is
called upon to provide a prima facie showing regarding the merits
of the case. (Ibid.; Park 100 Investment Group II, LLC v. Ryan
(2009) 180 Cal.App.4th 795, 806.) “An illegal act is one that is
forbidden by law.” (Park 100, at p. 806.) Service of an
unrecorded lis pendens is not an illegal act forbidden by law.
(See Manhattan Loft, supra, 173 Cal.App.4th at p. 1050 [filing lis
pendens was protected activity, even if the lis pendens was
invalid, as it did not refer to a pending lawsuit but to pending
arbitration proceedings; even if lis pendens was not properly
filed, the act of filing the lis pendens was protected activity under
§ 425.16].)”
1. Slander of title
D’Orio’s slander of title cross-claim is premised on two
prelitigation communications—the June 4, 2020 service and
publication of the first lis pendens “to multiple third parties”
including Michael and Heather Kimel, and the September 29,
2020 service of the second lis pendens on D’Orio. Both acts are
protected speech or petitioning activity under section 425.16 and
do not come within any exception to that statutory protection.
(Briggs, supra, 19 Cal.4th at p. 1115; Manhattan Loft, supra, 173
Cal.App.4th at p. 1050.)
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2. Intentional infliction of emotional distress
D’Orio’s cross-claim for intentional infliction of emotional
distress is similarly based on the June 4, 2020 and September 29,
2020 service of the first and second lis pendens, respectively. As
discussed above, these two acts are protected activities under
section 425.16.
Watkins met her threshold burden of showing that the
cross-claims for slander of title and intentional infliction of
emotional distress arise from acts in furtherance of her right of
petition or free speech under the first prong of the anti-SLAPP
statute. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at
p. 88.) We therefore turn to the second prong of the analysis
required under section 425.16—whether D’Orio has sustained her
burden of demonstrating a probability of prevailing on her cross-
claims. (§ 425.16, subd. (b)(1); Navellier, at p. 88.)
C. Probability of prevailing
The litigation privilege accorded by Civil Code section 473
precludes any probability of D’Orio prevailing on her slander of
title and intentional infliction of emotional distress cross-claims.
The privilege encompasses a lis pendens that “identifies an action
previously filed with a court of competent jurisdiction which
affects the title or right of possession of real property.” (Civ.
3 Civil Code section 47 provides in part: “A privileged
publication or broadcast is one made . . . [¶] . . . [¶] [i]n any . . .
judicial proceeding, . . . in any other official proceeding
authorized by law, or . . . in the initiation or course of any other
proceeding authorized by law . . . . [¶] . . . [¶] . . . A recorded lis
pendens is not a privileged publication unless it identifies an
action previously filed with a court of competent jurisdiction
which affects the title or right of possession of real property, as
authorized or required by law.”
9
Code, § 47, subd. (b)(4); see Alpha & Omega Development, LP v.
Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 662
(Alpha).)
The litigation privilege is absolute and precludes liability
for a publication or broadcast made in or in the initiation of a
judicial proceeding. (Civ. Code, § 47, subd. (b); Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241;
Digerati Holdings, LLC v. Young Money Entertainment, LLC
(2011) 194 Cal.App.4th 873, 887 (Digerati).) “‘“The usual
formulation is that the 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 [has] some connection or logical
relation to the action.” [Citation.] The privilege “is not limited to
statements made during a trial or other proceedings, but may
extend to steps taken prior thereto, or afterwards.” [Citation.]’
[Citation.] The litigation privilege is interpreted broadly in order
to further its principal purpose of affording litigants and
witnesses the utmost freedom of access to the courts without fear
of harassment in derivative tort actions. [Citation.] The
privilege is absolute and applies regardless of malice.” (Digerati,
at pp. 888-889.)
The June 2020 and September 2020 service of the first and
second lis pendens fall squarely within the protection accorded by
the litigation privilege. (Civ. Code, § 47, subd. (b)(4); Alpha,
supra, 200 Cal.App.4th at p. 662.) Both lis pendens identified the
action Watkins filed on May 28, 2020, asserted a real property
claim, and were made in connection with a judicial proceeding.
Given the absolute nature of the litigation privilege, D’Orio has
not met her burden of establishing a probability of prevailing on
10
her slander of title and intentional infliction of emotional distress
claims. (Digerati, supra, 194 Cal.App.4th at p. 889.)4
DISPOSITION
The order denying the anti-SLAPP motion is reversed. We
direct the trial court to reinstate D’Orio’s cross-complaint and to
issue an order granting the anti-SLAPP motion and striking the
cross-complaint. Watkins is awarded her costs on appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
4 Watkins’s failure to record the lis pendens immediately
upon filing her complaint, as required by section 761.010, does
not preclude her from prevailing on her quiet title claims against
D’Orio. Failure to record a lis pendens is immaterial against a
party to the action who voluntarily submits to the jurisdiction of
the court, as D’Orio did here. (Patten-Blinn Lumber Co. v.
Francis (1958) 166 Cal.App.2d 196, 200-201.)
11