Croteau v. Bernier CA4/1 ( 2014 )

Filed 8/26/14 Croteau v. Bernier CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JESSIE CROTEAU et al., D061560
Plaintiffs, Cross-defendants and
Respondents,
(Super. Ct. No. 37-2011-00091919-
v. CU-NP-CTL)
REJEANNE BERNIER,
Defendant, Cross-complainant and
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Affirmed.
Patrick M. Howe for Plaintiffs, Cross-defendants and Respondents.
Rejeanne Bernier in pro. per., for Defendant, Cross-complainant and Appellant.
Defendant, cross-complainant and appellant Rejeanne Bernier (Bernier), appearing
in propria persona, appeals the order granting the anti-SLAPP motion of plaintiffs, cross-
defendants and respondents Jessie Croteau (Jessie), Bernier's son, and his professional
services company, ICS Professional Services, Inc. (ICS) (together, respondents).
Respondents moved under Code of Civil Procedure section 425.161 to strike the
malicious prosecution and elder abuse causes of action Bernier asserted against them in
the cross-complaint she filed in response to respondents' own complaint for damages
against Bernier, Hans Croteau (Hans), the younger son of Bernier and the brother of
Jessie, and others. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
There is a long history of litigation between the parties in this case. In late 2006,
Bernier approached her son Jessie about a remodel to her home. Jessie's company, ICS,
then held a general building contractor license and a flooring and floor covering
contractor license. After Jessie and ICS began the remodeling work a dispute arose
between Bernier and Jessie that culminated in Bernier filing a lawsuit against Jessie and
ICS in October 2007, in San Diego County Superior Court, case No. 37-2007-00076023-
CU-BC-CTL (the construction lawsuit). The construction lawsuit alleged, among others,
causes of action for breach of oral agreement and for recovery of compensation paid to an
1 All statutory references are to the Code of Civil Procedure unless otherwise noted.
Section 425.16 is commonly referred to as the anti-SLAPP statute. (Siam v. Kizilbash
(2005) 130 Cal.App.4th 1563, 1568.) SLAPP is an acronym for " 'strategic lawsuit
against public participation.' " (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th
728, 732, fn. 1.)
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unlicensed contractor. As to the latter cause of action, Bernier alleged that the agreement
pertaining to the remodeling project was between her and Jessie individually, and not
between her and ICS, and as such, Jessie performed the work without a valid contractor's
license.
ICS alone filed a cross-complaint against Bernier in the construction litigation. It
asserted among others a cause of action for breach of a written contract. After a bench
trial, as discussed post the court found neither Bernier nor respondents were entitled to
any relief and entered judgment accordingly.
As relevant here, in May 2011 respondents filed the instant action against Bernier
and Hans (who is not a party in this appeal) asserting three causes of action for malicious
prosecution and one cause of action for defamation. Respondents in their complaint
contended Bernier and/or Hans had asserted at least three separate, unsuccessful lawsuits
against them in connection with the remodeling project, including (1) the construction
lawsuit; (2) a separate action by Hans against respondents in San Diego County Superior
Court, case No. 37-2008-00087054-PT-CTL, in which he alleged causes of action for
intentional misrepresentation and breach of oral contract arising from an alleged
agreement between him and respondents in which respondents would pay Hans $20 per
hour to perform labor in connection with the remodeling project, which amount would
then be offset from any amount Bernier owed for the remodeling work; and (3) an action
in the United States District Court for the Southern District of California, No. 10-CV-
1698, in which Bernier and Hans in their 98-page complaint alleged respondents and their
attorneys involved in the construction lawsuit, among many other defendants (including
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one of Bernier's own attorneys involved in the construction lawsuit, the San Diego
District Attorney and individuals in that office and former California Attorney General
Jerry Brown), allegedly violated their constitutional rights and committed many other
wrongs based in part on what respondents contended were many of the same allegations
Bernier and/or Hans had previously made in their unsuccessful construction and
employment lawsuits.
Bernier, for herself only, in response filed a cross-complaint against respondents
and others in the instant action. As relevant here, she alleged causes of action for
malicious prosecution and elder abuse. In her cross-complaint, Bernier alleged that in
connection with the construction lawsuit, her son Jessie "falsified several documents
concerning [her] remodeling project, including but not limited to time sheets,
employment applications, invoices, project accounting, and communications"; that Jessie
also "forged contracts between [her] and ICS," which Bernier contended was a felony;
and that as a result of such falsified and forged documents, ICS and Jessie "wrongfully
brought a lawsuit [i.e., the cross-complaint in the construction lawsuit] against [her] for
breach of a written contract . . . ."
Bernier further alleged in her elder abuse cause of action that at the time of the
alleged misconduct by respondents she was at least 65 years of age and thus subject to
protection under California's Elder Abuse and Dependent Adult Civil Protection Act
(Welf. & Inst. Code, § 15600 et seq (Act)); and that respondents violated that Act
"through the use and presentation of falsified and forged documents at trial [in the
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construction lawsuit] to take financial advantage, appropriate, and convert [her] money
for [respondents'] own personal use and enjoyment."
Respondents in response filed an anti-SLAPP motion to strike Bernier's malicious
prosecution and elder abuse causes of action.2 The trial court granted that motion, ruling
as follows:
"Cross-defendants [i.e., Croteau and ICS] bear[] the initial burden of establishing a
prima facie showing the causes of action arise from their free speech or petition activity.
[Citation.] 'In the anti-SLAPP context, the critical consideration is whether the cause of
action is based on the defendant's protected free speech or petitioning activity.'
[Citations.] In other words, the court considers whether the challenged action was filed
after the protected activity occurred.
"Here, the Cross-Complaint arises entirely out of petitioning activity and
statements made in the course of judicial proceedings. [Citation.] Moreover, malicious
prosecution causes of action fall within the purview of the [a]nti-SLAPP statute.
[Citation.] In addition, Bernier's cause of action for elder abuse is subject to the [a]nti-
SLAPP statute, as it is predicated on the alleged presentation of falsified and forged
documents at the trial in the underlying case [i.e., the construction lawsuit]. Causes of
action arising out of litigation activity are subject to a Special Motion to Strike.
2 Respondents also demurred to the cross-complaint. The trial court found the
demurrer moot as a result of its granting of respondents' anti-SLAPP motion. In addition,
Bernier and Hans separately demurred and each filed their own anti-SLAPP motion to
respondents' complaint for damages. The trial court granted in part and denied in part the
anti-SLAPP motions of Bernier and Hans. That order, however, is not the subject of this
appeal.
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[Citation.] Thus, Cross-Defendants have standing to bring the anti-SLAPP motion and
the first prong of the analysis has been met.
"The burden then shifts to Cross-Complainant to establish a 'probability that the
[cross-complainant] will prevail on the claim.' [Citation.] 'Put another way, the plaintiff
"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." ' [Citation.] Plaintiff in opposition must rely upon
competent admissible evidence within the personal knowledge of the declarant.
Declarations 'on information and belief' are of no moment. [Citation.]
"Here, Cross-Complainant has failed to show a probability of prevailing on the
merits of her Cross-Complaint against Jessie Croteau. Cross-Complainant fails to present
any evidence the Cross-Complaint in the underlying action was brought by Jessie
Croteau. Since Cross-Complainant has not shown a probability of prevailing on the
merits, her Cross-Complaint against Cross-Defendant Jessie Croteau is stricken.
"Cross-Complainant has also failed to show a probability of prevailing on the
merits of her Cross-Complaint against ICS . . . . Cross-Complainant fails to submit any
evidence of damage. Since Cross-Complainant has not shown a probability of prevailing
on the merits, her Cross-Complaint against Cross-Defendant ICS . . . is stricken.
"Cross-Complainant's Request for Judicial Notice is granted." (Emphasis in
original omitted.)
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DISCUSSION
A. Guiding Principles
A court employs a two-step analysis in determining whether one or more causes of
action should be stricken under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) In the
first step, the defendant—or in this case, the cross-defendant—bears the initial burden of
making a prima facie showing that the cause of action "aris[es] from any act of that
person in furtherance of the person's right of petition or free speech . . . ." (Ibid.; see
Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473-474.)
Subdivision (e) of section 425.16 provides that an "act in furtherance of a person's
right of petition or free speech" under subdivision (b)(1) of section 425.16 includes
"(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."
If the defendant meets this threshold burden, in the second step the burden then
shifts to the plaintiff, or in this case to the cross-complainant, to "establish[] that there is a
probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); see
Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 548.)
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"Under section 425.16, subdivision (b)(2), the trial court in making these
determinations considers 'the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.' [Citation.] For purposes of an
anti-SLAPP motion, '[t]he court considers the pleadings and evidence submitted by both
sides, but does not weigh credibility or compare the weight of the evidence. Rather, the
court's responsibility is to accept as true the evidence favorable to the plaintiff . . . .' "
(Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th 534, 548.) "These
determinations are legal questions, and we review the record de novo." (Damon v. Ocean
Hills Journalism Club, supra, 85 Cal.App.4th at p. 474.)
B. "Arising From" Requirement
In the instant case, the parties agree that a malicious prosecution claim generally is
subject to the anti-SLAPP statute. (See Jarrow Formulas, Inc. v. LaMarche, supra, 31
Cal.4th at pp. 736-741; Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th at
pp. 548-549.) However, Bernier contends this rule does not apply here because she
submitted new evidence to this court that she further contends conclusively establishes
that respondents engaged in criminal activity in connection with the construction lawsuit
as a result of their "collateral and extrinsic fraud." (See Flatley v. Mauro (2006) 39
Cal.4th 299, 320 [noting that when a "defendant brings a motion to strike under section
425.16 based on a claim that the plaintiff's action arises from activity by the defendant in
furtherance of the defendant's exercise of protected speech or petition rights, but either
the defendant concedes, or the evidence conclusively establishes, that the assertedly
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protected speech or petition activity was illegal as a matter of law, the defendant is
precluded from using the anti-SLAPP statute to strike the plaintiff's action."])
Specifically, Bernier submitted to this court evidence she claims was unavailable
to her at the time she opposed respondents' anti-SLAPP motion. According to Bernier,
this new evidence shows respondents in connection with the construction lawsuit
concealed (1) the existence of a policy of insurance issued to ICS on which she could
have based a claim for damages; and (2) various pictures she alleges show potential
construction defects related to the remodel project, which she now claims establish,
through her "plumbing expert," that respondents in 2007 improperly installed the
property's sewer system.
We conclude this narrow exception to the anti-SLAPP statute does not apply here.
For one thing, we cannot consider any of the "new" evidence proffered by Bernier
because this court previously denied her opposed motion to admit additional evidence for
new findings, her request for judicial notice that included at least one document that was
not even in existence when the trial court granted respondents' anti-SLAPP motion, and
finally her motion to reconsider this court's denial of her opposed motion to admit
additional evidence.
Moreover, even if we considered this "new" evidence we would still conclude this
limited exception does not apply in the instant case because we further conclude such
evidence does not establish as a matter of law that respondents engaged in illegal conduct
in the construction lawsuit when they allegedly concealed the existence of a policy of
insurance allegedly issued to ICS and/or photographs of Bernier's home taken during the
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remodel. (See Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367 [noting
that when a factual dispute exists regarding the alleged illegality of defendants' conduct,
this limited exception does not apply and further noting that because the defendants
conceded the illegal nature of their election finance activities, there is no constitutional
protection under section 425.16 for such activities], disapproved on another ground as
stated in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
Finally, we conclude Bernier did not proffer any other evidence to establish
respondents as a matter of law engaged in illegal and unlawful conduct, including when
they allegedly falsified several documents concerning Bernier's remodeling project, or
when, as she now contends for the first time on appeal, they allegedly engaged in the
crime of extortion in 2007 in connection with a certain indemnity agreement.
Indeed, the record shows that the court in its statement of decision in the
construction lawsuit found that Jessie and Bernier both lacked credibility and were not to
be believed; that although there was some "arrangement that caused remolding work to
be done at Ms. Bernier's house," "neither side established what that arrangement was";
and that the "stories told by Ms. Bernier and Mr. [Jessie] Croteau were both false"
regarding the true arrangement of the remodeling work, with both witnesses "trying to
tell a more convincing set of lies than the other." Clearly, in light of these findings—
which are final and binding on this court, Bernier can hardly establish, much less as a
matter of law, that respondents engaged in illegal conduct when they allegedly falsified
and/or forged several documents concerning the remodeling project, including the
contracts themselves.
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As such, we independently conclude Bernier's first cause of action for malicious
prosecution falls within the purview of section 425.16. (See Jarrow Formulas, Inc. v.
Lamarche, supra, 31 Cal.4th at pp. 734-735 [noting "[b]y definition, a malicious
prosecution suit alleges that the defendant committed a tort by filing a lawsuit" and thus
"every court of appeal that has addressed the question has concluded that malicious
prosecution causes of action fall within the purview of the anti-SLAPP statute."])
We also independently conclude respondents satisfied their burden to show
Bernier's second cause of action for elder abuse is also subject to the anti-SLAPP statute.
Indeed, the allegations in the cross-complaint, as discussed ante, show the conduct at
issue in this cause of action involved the preparation by respondents of the allegedly
"falsified and forged documents at trial" that Bernier contends constituted a "fraud upon
the Court." (Italics added.) We conclude these acts as alleged by Bernier were in
furtherance of respondents' right to petition (see § 426, subd. (b)(1)), as they involved a
"writing made in connection with an issue under consideration or review by a . . . judicial
body" within the meaning of subdivision (e)(2) of section 425.16. (See Navellier v.
Sletten (2002) 29 Cal.4th 82, 89-90 [noting fraud claim for defendant's misrepresenting
and failing to disclose his true intention in negotiating and executing a release involved
statements or writings made in connection with an issue under consideration or review by
a judicial body under subdivision (e)(2) of section 425.16]; Navarro v. IHOP Properties,
Inc. (2005) 134 Cal.App.4th 834, 838, 843 [noting claim alleging that opposing party
obtained a stipulated judgment by making false promises was within scope of section
425.16, subdivision (e)(2)]; Dowling v.. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-
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1420 [noting claims for fraud and other torts, based inter alia on false representations and
concealed material facts during negotiations of a settlement of an unlawful detainer
action, were within the scope of section 425.16, subdivision (e)(2)].)
As such, the burden then shifted to Bernier to show a probability of prevailing on
her two causes of action. (See § 425.16, subd. (b)(1).)
C. Probability of Prevailing on Her Causes of Action
1. Malicious Prosecution
To show a probability of prevailing on the merits of her malicious prosecution
cause of action, Bernier " 'must demonstrate that the [cross-]complaint [was] both legally
sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence [she] submitted . . . [was] credited.' " (See Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) " 'We consider "the pleadings,
and supporting and opposing affidavits . . . upon which the liability or defense is based."
[Citation.] 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." ' " (Nygard, Inc. v. Uusi-Kerttula (2008) 159
Cal.App.4th 1027, 1036.)
To prove a malicious prosecution claim, Bernier must show the underlying action
" '(1) was commenced by or at the direction of defendant and was pursued to a legal
termination in . . . plaintiff's[ ] favor [citations]; (2) was brought without probable cause
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[citations]; and (3) was initiated with malice.' " (Crowley v. Katleman (1994) 8 Cal.4th
666, 676.)
The parties in their respective briefing raise a series of arguments concerning
whether Bernier satisfied her minimal burden to establish a probability of prevailing on
the merits of her claims. Respondents, on the one hand, contend she cannot make this
showing with respect to Jessie and her first cause of action for malicious prosecution
because there is no evidence the cross-complaint in the construction lawsuit was
"initiated" by him as required to state such a claim, inasmuch as the only cross-
complainant was ICS. Respondents further contend that in any event, Bernier did not
meet her burden under the second prong of the anti-SLAPP statute with respect to both
causes of action because she failed to proffer admissible evidence that she sustained
damages.
Bernier, on the other hand, contends for the first time on appeal that she proffered
sufficient facts to show Jessie and ICS were alter egos and thus, he in fact "initiated" the
cross-complaint filed by ICS in the construction lawsuit. Bernier further contends she
proffered sufficient evidence to show she was in fact damaged as a result of the allegedly
improper filing of that pleading, as evidenced by, among other items, the attorney fees
she incurred, which evidence was included in her request for judicial notice that was
denied by this court.
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We need not decide any of these contentions to resolve this case3 because we
independently conclude Bernier did not and cannot proffer sufficient facts to show the
cross-complaint of ICS in the construction lawsuit was brought without probable cause
and was initiated with malice. (See Crowley v. Katleman, supra, 8 Cal.4th at p. 676.)
a. Probable Cause
"An action is deemed to have been pursued without probable cause if it was not
legally tenable when viewed in an objective manner as of the time the action was initiated
or while it was being prosecuted. The court must 'determine whether, on the basis of the
facts known to the defendant, the institution of the prior action was legally tenable.'
(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878.) 'The resolution of
that question of law calls for the application of an objective standard to the facts on which
the defendant acted. [Citation.]' (Ibid.; italics omitted.) The test the court is to apply is
whether 'any reasonable attorney would have thought the claim tenable. . . .' (Id. at
p. 886.)
3 In making our decision, we note that to prevail on a malicious prosecution claim a
party must show the prior action (i.e., the cross-complaint in the construction lawsuit)
was commenced by or at the direction of the defendant. (Crowley v. Katleman, supra, 8
Cal.4th at p. 676.) It is not clear why this language would not apply to Jessie in light of
the legal relationship between him and ICS. Moreover, we note that respondents cite no
authority to establish that a malicious prosecution plaintiff must present evidence of the
facts supporting the damages claimed in order to establish a probability of prevailing on
such a claim for purposes of the anti-SLAPP statute. Instead, the weight of authority
appears to be "there is no requirement that, for purposes of surviving an anti-SLAPP
motion, a malicious prosecution plaintiff must provide specific evidence of the extent of
the damages suffered." (See Sycamore Ridge Apartments, LLC. v. Naumann (2007) 157
Cal.App.4th 1385, 1411-1412.) We note neither side, including respondents (who are
represented by counsel), referenced this law.
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" 'In analyzing the issue of probable cause in a malicious prosecution context, the
trial court must consider both the factual circumstances established by the evidence and
the legal theory upon which relief is sought. A litigant will lack probable cause for his
[or her] action either if he [or she] relies upon facts which he [or she] has no reasonable
cause to believe to be true, or if he [or she] seeks recovery upon a legal theory which is
untenable under the facts known to him [or her].' [Citation.]
"In determining whether the prior action was legally tenable, i.e., whether the
action was supported by probable cause, the court is to construe the allegations of the
underlying complaint liberally, in a light most favorable to the malicious prosecution
defendant." (Kleveland v. Siegel & Wolensky, LLP, supra, 215 Cal.App.4th at pp. 550-
551.)
Here, the record shows that ICS filed its cross-complaint in the construction
lawsuit after a dispute arose between the parties regarding the remodeling project and
after Bernier sued Jessie and ICS. The record further shows that although there was a
dispute between the parties regarding the existence of a written contract in connection
with the remodeling project, there was no dispute, as the trial court found in its statement
of decision following the bench trial, of the existence of an "arrangement" between them
for that project.
We independently conclude Bernier has not satisfied her burden under step two of
the anti-SLAPP statute of showing a probability of prevailing on her malicious
prosecution cause of action because we conclude the cross-complaint of ICS in the
construction lawsuit, when viewed in an objective manner, was legally tenable. (See
15
Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878 [noting an action is
without probable cause "if it was not legally tenable when viewed in an objective manner
as of the time the action was initiated or while it was being prosecuted"].) For this reason
alone, we independently conclude the trial court properly granted respondents' anti-
SLAPP motion and struck Bernier's malicious prosecution cause of action.
b. Malice
Assuming, for the sake of argument, that Bernier can establish a probability of
prevailing on the lack of probable cause element of malicious prosecution, we
nonetheless conclude she cannot meet her minimal burden to show a probability of
prevailing on the malice element. Malice focuses on the defendant's subjective intent in
initiating the prior action, and is generally an issue to be determined by a jury. (Sheldon
Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 874; HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 218.) To establish malice, Bernier was required to
show by a preponderance of the evidence that the respondents brought their cross-
complaint in the construction lawsuit based on hostility or ill will or for another improper
purpose. (See Ross v. Kish (2006) 145 Cal.App.4th 188, 204; Padres L.P. v. Henderson
(2003) 114 Cal.App.4th 495, 522.)
"Malice is usually proved by circumstantial evidence. [Citation.] Although a lack
of probable cause, standing alone, does not support an inference of malice, malice may
still be inferred when a party knowingly brings an action without probable cause."
(Padres L.P. v. Henderson, supra, 114 Cal.App.4th at p. 522.) Whether malice exists
16
presents a factual question and its proof may be inferred from all the circumstances of the
case. (Sheldon Appel Co., supra, 47 Cal.3d at p. 874.)
Here, we independently conclude Bernier has not proffered sufficient evidence for
purposes of the anti-SLAPP statute from which a reasonable person could infer an
improper motive by ICS and/or respondents in filing and prosecuting the cross-complaint
in the construction lawsuit after a bona fide dispute arose between the parties regarding
the remodeling project and after Bernier had sued the respondents as a result of that
dispute.
That Bernier contends the dispute over the remodeling project, and the subsequent
filing by ICS of the cross-complaint in the construction lawsuit, resulted from Jessie's
alleged desire for "revenge" against her after being "thrown out of his mother's home in
the mid 1980's with police assistance" does not change our conclusion on this issue.
Evidence of an incident that occurred more than 20 years before ICS filed its cross-
complaint in the construction lawsuit in our view does not support a prima facie showing
of ill will or hostility under the circumstances of this case with respect to the filing of that
pleading, which as noted, came about after Bernier sued respondents in connection with
the remodeling project. (See Ross v. Kish, supra, 145 Cal.App.4th at p. 204.)
Thus, for this separate and independent reason we independently conclude Bernier
has not shown a probability of prevailing on her malicious prosecution cause of action as
required under the anti-SLAPP statute.
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2. Elder Abuse
To establish a likelihood of prevailing on the merits of her financial elder abuse
cause of action, Bernier was required to proffer admissible evidence to make a prima
facie showing of one or more of the elements of Welfare and Institutions Code section
15610.30, which provides in part:
"(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity
does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use or with intent to
defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining
real or personal property of an elder or dependent adult for a wrongful use or with intent
to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or retains, or assists in
taking, secreting, appropriating, obtaining, or retaining, real or personal property of an
elder or dependent adult by undue influence, as defined in Section 15610.70.
"(b) A person or entity shall be deemed to have taken, secreted, appropriated,
obtained, or retained property for a wrongful use if, among other things, the person or
entity takes, secretes, appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be harmful to the elder or
dependent adult."
Here, excluding the "new" evidence proffered by Bernier that we cannot consider,
her elder abuse cause of action as noted is premised on the allegedly false and/or forged
documents created by respondents in connection with the construction lawsuit. As we
previously noted, the record shows the trial court in the construction lawsuit already
18
passed on the issue of whether respondents falsified and/or forged various documents in
connection with the remodeling project, as Bernier alleged in that litigation. It found that
both Jessie and Bernier lacked credibility and were not to be believed and that the
"stories told by Ms. Bernier and Mr. [Jessie] Croteau were both false" regarding the true
arrangement of the remodeling work.
In light of these findings, we conclude Bernier cannot show a probability of
prevailing on her elder abuse cause of action based on the allegations in her cross-
complaint that respondents allegedly took or appropriated money from her during the
remodeling project by allegedly falsifying and/or forging various construction-related
documents in connection with that project.4
4 In light of our decision, we need not decide whether the litigation privilege (Civ.
Code, § 47, subd. (b)) applies and thus prevents Bernier from establishing a probability of
success on her elder abuse cause of action. (See Silberg v. Anderson (1990) 50 Cal.3d
205, 212 [noting this privilege generally "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."]) We note that respondents in any event asserted the
privilege in their demurrer to the cross-complaint, but for whatever reason they did not
contend the privilege applied to prevent Bernier from satisfying her burden under the
anti-SLAPP motion.
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DISPOSITION
The trial court's order granting respondents' special motion to strike Bernier's
malicious prosecution and elder abuse causes of action is affirmed. Respondents to
recover their costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
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