Cooper v. Cooper CA4/3 ( 2024 )

Filed 10/30/24 Cooper v. Cooper CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHAEL COOPER, as Trustee,
etc.,
G062794
Plaintiff and Respondent,
(Super. Ct. No. 30-2022-
v. 01252918)
SUZANNE C. COOPER, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Nathan T. Vu, Judge. Reversed.
Smith LC, John S. Clifford and Stephanie P. Alexander for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Plaintiffs Christopher C. Cooper and Michael Cooper, as trustee
of the Christopher Michael Cooper Trust (the Trust), sued defendant Suzanne
C. Cooper,1 for, as relevant to this appeal, fraudulent misrepresentation.
Their claim was based on allegations Suzanne, who is Christopher’s ex-wife,
made false statements during settlement negotiations in Suzanne and
Christopher’s marital dissolution case regarding a community debt owed the
Trust. The trial court granted Suzanne’s special motion to strike that claim
under Code of Civil Procedure section 425.162 as to Christopher, but denied it
as to Michael. Suzanne appeals the trial court’s order denying the motion as
to Michael.
We reverse. For the reasons we explain, Suzanne established the
fraudulent misrepresentation claim arose out of protected activity within the
meaning of section 425.16, subdivision (e)(2) (section 425.16(e)(2)). As neither
Christopher nor Michael filed any opposition to the motion, they failed to
carry their burden of showing a probability of prevailing on the merits of that
claim. Consequently, the trial court should have granted the motion as to
both Christopher and Michael.
1 As the parties to this lawsuit share the same surname, we refer
to them by their first names for clarity; we intend no disrespect. Our
references to Michael Cooper as “Michael” are solely in his capacity as trustee
of the Trust, unless otherwise specified. We refer to Christopher and Michael
collectively as “plaintiffs.”
2 “SLAPP is an acronym for ‘strategic lawsuit against public
participation.’ [Citation.]” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409,
413, fn. 2.) All further statutory references are to the Code of Civil Procedure.
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FACTS AND PROCEDURAL BACKGROUND
I.
THE COMPLAINT
Plaintiffs filed a complaint against Suzanne asserting claims for
breach of contract, unjust enrichment, promissory estoppel, and fraudulent
misrepresentation. The complaint alleged the following facts.
In 2006, Suzanne and Christopher were married. In 2008, the
Trust loaned Suzanne and Christopher $360,000, which the couple later used
to purchase real property in 2009 (the residence). Suzanne and Christopher
signed a promissory note providing the Trust a security interest in the
residence and stating their agreement to repay the loan on or before
March 30, 2018.
In June 2016, Suzanne and Christopher legally separated. “From
that point forward, [Suzanne] maintained exclusive use and control of the
residence.” Pursuant to a court order entitling her to sell the residence, in
January 2019, Suzanne sold the residence to a third party for $985,000.
Suzanne “thereby received a windfall and kept to herself all of the proceeds
from the 2019 sale of the residence” and “did not repay any money due under
the promissory note, despite the principal payment being past due and
despite the Trust holding a security interest in the residence pursuant to the
note.” (Some capitalization omitted.)
In November 2019, Christopher and Michael attempted to
recover from Suzanne unpaid principal balance and interest on the loan.
“During the course of these negotiations,” Suzanne proposed to Michael and
Christopher that the “Trust . . . forgive $180,000 in principal and $49,248 in
interest owed by [Suzanne] to the Trust under the promissory note,” and that
Michael Cooper (as an individual) “and his spouse [agree to] pay the
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education costs of Christopher and [Suzanne]’s three children through their
college undergraduate degrees or the age of 23, whichever occurred first.”
(Some capitalization omitted.) In exchange, Suzanne proposed she “would
waive any right or claim against Christopher for (i) all unpaid child support
allegedly owed to [Suzanne] since April 1, 2019, and (ii) all future potential
obligations to pay [Suzanne] child support, medical expenses, or child care
payments; and Christopher would receive from [Suzanne] limited visitation
rights with his three children.” (Italics and some capitalization omitted.)
The complaint further alleged Suzanne never intended to waive
any right to child support or other payments from Christopher and falsely
promised to Michael and Christopher she would waive such rights, “while
intending to induce Michael (as trustee) to forgive and/or stop pursuing
repayment of [Suzanne]’s debts to the Trust under the promissory note.”
(Some capitalization omitted.)
II.
THE ANTI-SLAPP MOTION
Suzanne filed a special motion to strike the fraudulent
misrepresentation claim (the motion). Suzanne argued that claim was based
on statements Suzanne allegedly made in the context of resolving Suzanne
and Christopher’s dispute over an allegedly omitted community liability in
their family law case and child support. As such statements were made “‘in
connection with’ a judicial proceeding,” she contended they constituted
protected activity within the meaning of section 425.16(e)(2). She further
argued plaintiffs could not carry their burden of demonstrating a probability
of prevailing on the merit of their claim because, inter alia, “the litigation
privilege protects [Suzanne] from tort liability for the alleged acts in the
Complaint.”
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The motion was supported by Suzanne’s declaration, in which she
asserted the following. Suzanne filed for dissolution of her marriage to
Christopher in August 2016 and a default judgment on reserved issues was
entered in the divorce proceeding in January 2019 (the January 2019
judgment). “At some point after the default judgment was entered,”
Christopher claimed the unpaid debt on the promissory note was an “omitted
liability” as it was not addressed in the January 2019 judgment. “During the
time period in which [the instant] Civil Complaint alleges negotiations
regarding the promissory note were taking place, Christopher was in arrears
in his child support obligations” with regard to Suzanne and Christopher’s
three children.
Suzanne further declared she and Christopher resolved their
dispute regarding the promissory note and the amount of child support owing
by signing a July 28, 2022 stipulation and order, also signed by the trial court
and then filed in Suzanne and Christopher’s family law case. Suzanne
attached a copy of the stipulation and order to her declaration, which
contains the following recitals: (1) Pursuant to the January 2019 judgment,
Christopher was to pay Suzanne $1,667 in monthly child support and one-
half the cost of child care for the parties’ three children ($600 per month) and
“child support arrears and costs have been accruing since August 1, 2018”;
(2) Pursuant to the January 2019 judgment, after Christopher declined the
opportunity to buy out Suzanne’s interest in “the community property”
residence, the residence was sold “and the net proceeds, after specified
deductions, [were] divided equally between the parties”; and (3) The parties’
joint debt owed under the promissory note was never paid.
The stipulation and order provided the parties agreed to the
following terms: (1) Christopher “shall indemnify [Suzanne] and hold [her]
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harmless in relation to the monies owed to the Trust by [her], in the amount
of $180,000.00, pursuant to the Promissory Note”; (2) Suzanne “shall waive
any and all child support arrears and costs owed by [Christopher] to [her],
pursuant to the child support order” contained in the January 2019
judgment, and incurred since that date; (3) “Commencing the date this order
is signed, Child Support owed from [Christopher] to [Suzanne] shall be set at
zero ($0). Further, [Christopher] shall not be obligated to pay one-half of the
cost of child care for the parties’ three minor children, in the sum of $600 per
month to [Suzanne], as set forth in the January 10, 2019 Judgment”; and
(4) Suzanne will not seek modification of the $0 child support order within
two years of the entry of the order on the stipulation.
According to Suzanne’s declaration, she has since closed her child
support collection case and Christopher “has received the waiver of child
support arrears.” She further stated, “consistent with our settlement,
Christopher is currently paying no child support.” Nevertheless, she stated,
five months after the trial judge in the family law case signed the stipulation
and order, Christopher and Michael filed the instant action.
Christopher and Michael did not file an opposition to the motion.
Suzanne thereafter filed a notice of plaintiffs’ non-opposition to the motion.
III.
THE TRIAL COURT GRANTS THE MOTION AS TO CHRISTOPHER,
BUT DENIES IT AS TO MICHAEL
The trial court issued a tentative ruling granting the motion in
its entirety. In its tentative ruling, the court concluded the fraudulent
misrepresentation claim was based on Suzanne’s alleged false statements
during negotiations in Suzanne and Christopher’s family law case and thus
arose from protected activity within the meaning of section 425.16. The court
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further concluded plaintiffs failed to meet the shifted burden of
demonstrating a probability of prevailing on the merits of that claim as they
did not file an opposition and did not submit any admissible evidence.
The trial court’s minute order from the hearing on the motion
states plaintiffs’ counsel “request[ed] clarification on the tentative ruling,”
the court heard oral argument, and the court took the matter under
submission. No court reporter was present at the hearing.
In a minute order dated May 4, 2023, the trial court changed its
tentative ruling to grant the motion only as to Christopher, but to deny it as
to Michael. As in its tentative ruling, the trial court explained Suzanne met
her initial burden to show the statements underlying the fraudulent
misrepresentation claim arose from protected activity within the meaning of
section 425.16, as they were made during Suzanne and Christopher’s family
law case. But the court also concluded Suzanne had not met that same
burden with regard to the same statements as to Michael because “any
alleged misrepresentations made by [Suzanne] to Plaintiff Michael were not
part of the negotiations regarding the dissolution action because Plaintiff
Michael was not a party to that action.” The court continued: “Nor were any
alleged misrepresentations part of any legal action between Plaintiff Michael
and [Suzanne] because there is no evidence of any such action.”
Suzanne timely appealed from the order denying the motion as to
Michael.
DISCUSSION
I.
SECTION 425.16 AND THE GOVERNING STANDARD OF REVIEW
“The anti-SLAPP statute does not insulate defendants from any
liability for claims arising from the protected rights of petition or speech. It
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only provides a procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384,
italics omitted.)
“Litigation of an anti-SLAPP motion involves a two-step process.
First, ‘the moving defendant bears the burden of establishing that the
challenged allegations or claims “aris[e] from” protected activity in which the
defendant has engaged.’ [Citation.] Second, for each claim that does arise
from protected activity, the plaintiff must show the claim has ‘at least
“minimal merit.”’ [Citation.] If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1009 (Bonni).)
“We review an order granting or denying an anti-SLAPP motion
under the de novo standard and, in so doing, conduct the same two-step
process to determine whether as a matter of law the defendant met its
burden of showing the challenged claim arose out of protected activity and, if
so, whether the plaintiff met its burden of showing probability of success.”
(Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism
(2018) 23 Cal.App.5th 28, 42.)
II.
THE FRAUDULENT MISREPRESENTATION CLAIM ARISES OUT OF PROTECTED
ACTIVITY AS TO BOTH PLAINTIFFS
In the first step of the anti-SLAPP analysis, we determine
whether the fraudulent misrepresentation claim arises from an act by
Suzanne in furtherance of her right of free speech or right of petition.
(§ 425.16, subd. (e).) Section 425.16, subdivision (e) defines an “‘act in
furtherance of a person’s right of petition or free speech . . . in connection
with a public issue’” as, inter alia, “any written or oral statement or writing
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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(e)(2).)
In its minute order, the trial court acknowledged the fraudulent
misrepresentation claim is based on allegations Suzanne made certain
statements to both plaintiffs, stating: “The 4th cause of action for fraudulent
misrepresentation alleges that Defendant promised Plaintiffs that she would
waive certain rights and claims to child support payments from Plaintiff
Christopher Cooper (Plaintiff Christopher) and grant to him limited
visitation rights in return for forgiveness of all principal and interest
payments owed by Defendant for a loan given by non-party Christopher
Michael Cooper Trust (Trust) to Defendant and Plaintiff Christopher.”
The trial court also acknowledged Suzanne’s alleged false
statements were all made in the context of negotiations to address division of
the marital community’s debt under the promissory note that was then at
issue in Suzanne and Christopher’s family law case. The court explained in
its minute order:
“Defendant contends that the 4th cause of action arises out of the
exercise of her protected petitioning activity because the alleged
misrepresentations were made during negotiations in the course of
Defendant and Christopher’s dissolution proceedings in Orange County
Superior Court Case Number 16D007455.
“‘The constitutional right of petition encompasses “the basic act of
filing litigation.”’ [Citation.] Thus, ‘a claim based on actions taken in
connection with litigation falls “squarely within the ambit of the anti-SLAPP
statute’s ‘arising from’ prong.”’ Citation.]
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“Courts have adopted ‘a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16.’
[Citation.] . . . Settlement negotiations and agreements are considered to
have been made ‘in connection with’ litigation for purposes of section 425.16.
[Citation.] [¶] . . . [¶]
“Defendant has provided evidence that all negotiations involving
the loan from the Trust were made during Plaintiff Christopher’s and
Defendant’s dissolution action. [Citation.] Thus, Defendant has met her
initial burden to show that the Complaint’s allegations arise from protected
activity with respect to Plaintiff Christopher.” (Italics added.)
Notwithstanding the court’s conclusion that all of Suzanne’s
alleged false statements constitute protected activity within the meaning of
section 425.16(e)(2), the court denied the motion as to Michael, concluding
because Michael was not a party to the family law case, those same
statements lose their protected activity status vis-à-vis him. The court
explained in its minute order: “Plaintiffs point out that Plaintiff Michael
Cooper (Plaintiff Michael) was not a party to the dissolution action between
Plaintiff Christopher and Defendant, and that there is no evidence that the
alleged misrepresentations were made as part of any legal action between
Plaintiff Michael and Defendant. [¶] Plaintiffs are correct. Therefore, any
alleged misrepresentations made by Defendant to Plaintiff Michael were not
part of the negotiations regarding the dissolution action because Plaintiff
Michael was not a party to that action. Nor were any alleged
misrepresentations part of any legal action between Plaintiff Michael and
Defendant because there is no evidence of any such action. Thus, Defendant
has not met her initial burden to show that the Complaint’s allegations arise
from protected activity with respect to Plaintiff Michael.”
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The trial court does not cite any legal authority supporting the
court’s conclusion identical conduct under identical circumstances can both
qualify as protected activity under section 425.16(e)(2) with respect to one
plaintiff, but at the same time fail to qualify as protected activity as to
another plaintiff. Because plaintiffs did not file an opposition to the motion,
Christopher did not appeal from the order granting the motion as to him, and
Michael did not file a respondent’s brief in this appeal, we do not have the
benefit of knowing what legal authority, if any, plaintiffs may have offered
the trial court in support of such a conclusion.
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.” (Italics added.) Here, the trial court concluded, and we
agree, the fraudulent misrepresentation claim is based on allegations of false
statements made during settlement negotiations and thus arises from an act
of Suzanne in furtherance of her right of petition within the meaning of
section 425.16, subdivision (b)(1). (See Bonni, supra, 11 Cal.5th at p. 1024
[settlement negotiations, whether occurring while a suit is pending or those
preceding the filing of a suit “are protected activity for anti-SLAPP
purposes”]; Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP
(2017) 18 Cal.App.5th 95, 114 (Optimal Capital) [“because settlement
negotiations are regarded as an exercise of the right to petition,
communications during such negotiations are regarded as having been made
in connection with the underlying lawsuit for purposes of section 425.16,
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subdivision (e)(2)”].) Moreover, that plaintiffs allege Suzanne made false
statements in the settlement negotiations “does not remove them from the
definition of protected activity.” (Bonni, supra, 11 Cal.5th at p. 1025;
Optional Capital, supra, 18 Cal.App.5th at p. 114 [“The protection of the anti-
SLAPP statute applies ‘even against allegations of fraudulent promises made
during the settlement process’”].)
Neither section 425.16 itself nor case law interpreting that
statute supports the conclusion Suzanne’s alleged false statements, made
indisputably in the context of settlement negotiations pertinent to the family
law case, fail to qualify as a protected act in furtherance of her right of
petition with respect to Michael simply because he is a nonparty to that
family law case.
“Cases construing the anti-SLAPP statute hold that ‘a statement
is “in connection with” litigation under section 425.16, subdivision (e)(2) if it
relates to the substantive issues in the litigation and is directed to persons
having some interest in the litigation.’” (Optional Capital, supra, 18
Cal.App.5th at pp. 113–114.) Here, the alleged false statements underlying
the fraudulent misrepresentation claim were all made in the context of
negotiations seeking to resolve Christopher’s contention the $360,000 loan
from the Trust constituted a community debt that was omitted from the
January 2019 judgment in the family law case. The legitimate connection of
those negotiations to the family law case is directly evidenced by Suzanne
and Christopher entering into the stipulation and order resolving their
respective liability as to the loan, which stipulation and order was signed by
the trial court in the family law case and filed. There is no question Michael,
as trustee of the Trust which made the loan at issue, had some interest in
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how Suzanne and Christopher agreed to resolve responsibility for the
outstanding joint debt on that loan.
The trial court therefore erred in concluding Suzanne failed to
demonstrate the fraudulent misrepresentation claim arose out of protected
activity as to Michael. Michael thereafter failed to meet his burden of
demonstrating a probability of prevailing on the merits of the claim as he did
not file an opposition or submit any admissible evidence. Consequently, the
motion should have been granted, in its entirety, as to both plaintiffs.
DISPOSITION
The order denying the anti-SLAPP motion as to Michael is
reversed. Appellant to recover costs on appeal.
MOTOIKE, J.
WE CONCUR:
GOETHALS, ACTING P. J.
SANCHEZ, J.
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