Filed 10/27/22 Thomas v. Rothman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ANTHONY THOMAS, JR., B315139
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20NWCV00360)
LARRY ROTHMAN,
Defendant and
Respondent.
APPEAL from the judgment and order of the Superior
Court of Los Angeles County, Olivia Rosales, Judge. Reversed.
Alaba Ajetunmobi for Plaintiff and Appellant.
Steven D. Silverstein for Defendant and Respondent.
******
Timing is everything. A lawyer was sued for recording an
assessment lien as well as documents preliminary to a
nonjudicial foreclosure, activities for which he may be civilly
immune. (Wilton v. Mountain Wood Homeowners Assn. (1993) 18
Cal.App.4th 565, 569-570 [assessment lien privileged]; Civ. Code,
§ 2924, subd. (b) [trustee’s acts of recording documents associated
with nonjudicial foreclosure privileged]; id., § 47.) Rather than
move for summary judgment, however, the lawyer moved to
dismiss the lawsuit against him under our State’s anti-SLAPP
law (Code Civ. Proc., § 425.16). The trial court granted the
lawyer’s anti-SLAPP motion. Alas, this was wrong because the
lawyer’s conduct is not conduct protected by the anti-SLAPP law;
we must accordingly reinstate the lawsuit.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Anthony Thomas, Jr. (plaintiff) inherited a townhome that
is part of the Lakewood Village Townhomes Homeowner’s
Association (the Association). In 2019 and 2020, plaintiff’s tenant
in the townhome violated several of the Association’s rules and
plaintiff was assessed fines for those violations. By March 2020,
plaintiff owed the Association a total of $16,790.27 from the
violations as well as unpaid annual assessment dues.
The Association retained Larry Rothman (Rothman), an
attorney, to file an assessment lien against plaintiff’s property
and to initiate nonjudicial foreclosure proceedings to collect the
unpaid amount. Rothman carried out those duties: He recorded
an assessment lien on July 10, 2019; he recorded a notice of
default against the property on March 26, 2020; and he recorded
a notice of a trustee’s sale on October 8, 2020, with a foreclosure
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sale date in November 2020. By the time of the notice on
trustee’s sale, plaintiff’s amount due had climbed to $23,907.27.
II. Procedural Background
A. Pleadings
Plaintiff sued the Association in June 2020.
Four months later, plaintiff filed the operative first
amended complaint against the Association, its property
manager, and Rothman. More specifically, plaintiff sued
Rothman for (1) wrongful foreclosure, (2) negligence, (3) breach of
the implied covenant of good faith and fair dealing, and (4)
intentional infliction of emotional distress.1 All four claims had
the same factual premise—namely, that Rothman (and the
Association) had not complied with all of the statutory
requirements for recording assessment liens and nonjudicial
foreclosure.
B. Anti-SLAPP motion
Rothman filed a motion to dismiss the claims against him
under our State’s anti-SLAPP law. After further briefing and a
hearing, the trial court granted the motion. In granting the
motion, the court reasoned that Rothman’s conduct in recording
the assessment lien and the nonjudicial foreclosure documents
was “protected activity” subject to dismissal under the anti-
SLAPP statute because the other Association homeowners “would
be impacted by the outcome and had a stake in the association’s
governance.” The court then determined that plaintiff had not
carried his burden of establishing that his claims against
1 Plaintiff dropped intentional infliction of emotional distress
in his second amended complaint, so this claim appears to be
gone.
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Rothman had “minimal merit” because the litigation privilege
barred all of those claims.
C. Appeal
Following the entry of judgment plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court erred in dismissing his
claims against Rothman under the anti-SLAPP law. “The anti-
SLAPP statute ‘provides a procedure for weeding out, at an early
stage, meritless claims arising from’ activity that is protected by
the law. [Citation.] ‘Accordingly, a trial court tasked with ruling
on an anti-SLAPP motion must ask two questions: (1) has the
moving party “made a threshold showing that the challenged
cause of action arises from protected activity” [citation], and, if
so, (2) has the nonmoving party “established . . . a probability
that [he] will prevail” on the challenged cause of action by
showing that the claim has ‘minimal merit [citations]?”’ (Gruber
v. Gruber (2020) 48 Cal.App.5th 529, 537, italics omitted.) We
independently review a trial court’s resolution of each question.
(Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th
882, 887.)
Plaintiff seeks to hold Rothman liable for his conduct, as
the lawyer to the Association, in recording the assessment lien as
well as the two notices that are the first two steps in the
nonjudicial foreclosure procedure. As a result, the threshold
question is whether this conduct constitutes “protected activity”
within the meaning of the anti-SLAPP law.
We conclude that it does not, and we do so for two reasons.
First, the anti-SLAPP law explicitly defines “protected
activity” to include communications made “before a” “judicial
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proceeding” or “in connection with an issue under consideration
or review by” a “judicial body” or “any other official proceeding
authorized by law.” (§ 425.16, subd. (e)(1) & (2).) Courts have
construed this definition also to reach ‘“communications
preparatory to or in anticipation of the bringing of an action or
other official proceeding”’ (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115), but only if those
communications “relate[] to litigation that is contemplated in
good faith and under serious consideration” (Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251).
Nonjudicial foreclosure “does not involve . . . judicial
proceedings,” and acts in preparation for it—such as an
assessment lien—are accordingly not in preparation for a judicial
or other proceeding. (Garretson v. Post (2007) 156 Cal.App.4th
1508, 1520; Crossroads Investors, L.P. v. Federal National
Mortgage Assn. (2017) 13 Cal.App.5th 757, 778 [“pursuit of a
nonjudicial foreclosure and compliance with its statutory
procedures do not involve the exercise of protected speech or
petitioning activity”]; cf. Trapp v. Naiman (2013) 218 Cal.App.4th
113, 120-121 [nonjudicial foreclosure that is tangential to
unlawful detainer action is protected activity]; RGC Gaslamp,
LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413,
426 [filing of mechanic’s lien in anticipation of litigation in court
to enforce it is protected activity].) As a result, Rothman’s
conduct is not “protected activity” under subdivision (e)(1) and (2)
of section 425.16.
Second, the anti-SLAPP law explicitly defines “protected
activity” to include “statement[s]” “made in a place open to the
public or a public forum in connection with an issue of public
interest” as well as “conduct in furtherance of the exercise of the
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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)(3) & (4).) Courts have held that a
dispute between a homeowner’s association and a homeowner can
sometimes entail an “issue of public interest,” but only if the
dispute is “of concern” to the association’s members generally—
such as matters involving the governance of the Association or
whether the Association is “evenhandedly enforc[ing]” its
architectural guidelines that will shape the aesthetic of the
development. (Ruiz v. Harbor View Community Assn. (2005) 134
Cal.App.4th 1456, 1468-1470 [letters written by homeowner’s
association’s attorney to homeowner in midst of “ongoing
dispute[] over [the] approval” of the homeowner’s “conception
plans” is “protected activity” because “whether the [association’s]
architectural guidelines had been evenhandedly enforced” was “a
matter of concern” to the association’s 500-plus members];
Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th
468, 471-480 [articles in newspaper to homeowners regarding
whether association should remain self-governing or have a
management company, and whether the current manager is
competent, is “protected activity” because it is “of concern” to the
association’s 3,000 members].) However, a homeowner’s
association’s conduct in enforcing its rules against a specific
homeowner is not protected activity because it is not of concern to
association members generally and does not necessarily
“implicate[] a freedom of speech issue.” (Turner v. Vista Pointe
Ridge Homeowners Association (2009) 180 Cal.App.4th 676, 686-
688.) Rothman’s conduct in this case involved his role in
assisting the Association in enforcing its rules through the
collection of annual assessments and fines incurred in violation of
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those rules; this does not involve any issue of governance or
broader concern to the Association’s members, and also does not
implicate any “freedom of speech issue.” As a result, Rothman’s
conduct is not “protected activity” under subdivision (e)(3) or (4)
of section 425.16. To be sure, it is possible to characterize
Rothman’s conduct as part of the Association’s efforts to
“evenhandedly enforce[]” its rules. But that characterization
could be used in every case and would render every action by an
Association “protected activity,” which is not the law.
Rothman marshals what boils down to two arguments in
response. First, he argues that the precedent holding that
nonjudicial foreclosure is not protected activity under subdivision
(e)(1) and (2) has been discredited by Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, disapproved on another
ground by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 68, fn. 5. But Wollersheim involved conduct in
litigation, and had nothing to do with homeowner’s associations
or nonjudicical foreclosure. Second, Rothman argues that
plaintiff’s claims are defective because they essentially allege a
civil conspiracy between a lawyer and his client, but plaintiff did
not comply with the procedural requirements for filing such a
claim as set forth in Civil Code section 1714.10. Even if true, this
at best addresses the merits of plaintiff’s claims, not whether they
constitute “protected activity” within the meaning of the anti-
SLAPP law.
We must accordingly reverse the trial court’s judgment
dismissing the case, and remand for further proceedings.
Because plaintiff is now the prevailing party on the motion, the
attorney fees award to Rothman must be vacated and plaintiff
may seek fees pursuant to section 425.16, subdivision (c)(1), to
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the extent he can establish that Rothman’s motion was “frivolous
or . . . solely intended to cause unnecessary delay,” issues on
which we express no opinion.
DISPOSITION
The judgment and attorney fee order are reversed, and the
case remanded for further proceedings. We deny defendant’s
motion for sanctions on appeal because plaintiff’s appeal was not
frivolous. Plaintiff is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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