Dominguez v. Campana CA2/8 ( 2024 )

Filed 10/28/24 Dominguez v. Campana CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
IVA DOMINGUEZ et al., B332152
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 23VECV00862)
v.
WILLIAM CAMPANA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Shirley K. Watkins, Judge. Affirmed.
Law Offices of Dennis G. Geselowitz and Dennis G.
Geselowitz for Plaintiffs and Appellants.
Law Offices of Steve Lopez and Steve Lopez for Defendant
and Respondent.
_________________________________
Plaintiffs and appellants Consuelo Saldana, Miguel
Dominguez, and Iva Dominguez appeal from the trial court’s
granting of defendant and respondent William Campana’s
special motion to strike made under Code of Civil Procedure1
section 425.16 (the anti-SLAPP statute).2
Appellants sued Respondent for malicious prosecution,
elder abuse, and abuse of process. This lawsuit arose after
Respondent prevailed in an underlying litigation where
Respondent sued Appellants, to quiet title and partition a
condominium. After a bench trial, the trial court entered
judgment in favor of Respondent. The judgment was affirmed
on appeal.
Because Appellants’ causes of action each arose from
Respondent’s conduct in the underlying litigation, we conclude
Respondent met his burden to show Appellants’ claims arose
from protected activity under section 425.16. We also conclude
Appellants have not shown minimal merit on their claims
because they base their allegations on Respondent’s conduct in
the underlying litigation, a case where Respondent prevailed.
Accordingly, we find the trial court correctly granted
Respondent’s motion and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The underlying litigation and appeal
This dispute between the parties originated in a prior
litigation involving their respective ownership interests in a
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2 When necessary, we refer to the parties by their first
names for clarity, intending no disrespect.
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condominium. After a bench trial in the prior litigation, the trial
court entered an interlocutory judgment in favor of Respondent.
Another division of this court affirmed the interlocutory
judgment. (Campana v. Saldana (Mar. 5, 2024, B327132)
[nonpub. opn.] (Campana).) The following facts are taken from
the factual and procedural background section of the opinion in
the prior appeal.
“In July 2017, [Respondent] filed a complaint against
Appellants asserting causes of action for partition of real
property, accounting, partnership dissolution, constructive trust,
common count, and breach of fiduciary duty. Among other forms
of relief, [Respondent] sought partition by sale, an accounting,
compensatory and punitive damages, and dissolution of
partnership.
“The complaint alleged that in 1993, [Respondent’s] father,
Mario Campana, bought a condominium (the Property) with
Consuelo Saldana ‘as an investment and under a verbal
partnership agreement.’ The partnership agreement allowed
either party to call for the sale of the Property. In July 2013,
Mario transferred his interest in the Property to [Respondent].
A few months later, Consuelo transferred her interest to her
daughter, Iva, and her daughter’s husband, Miguel. About three
years later, [Respondent] learned Appellants had not paid the
property taxes or homeowners association fees. [Respondent] told
Appellants he wanted to sell the Property or have them purchase
his interest, but they did not respond to his request.
“After litigating the case for a couple of years, [Respondent]
moved for leave to file an amended complaint to clarify his
partition cause of action, add a new cause of action for quiet title
against Consuelo, and remove all other causes of action. As to
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the partition claim, [Respondent] asserted Mario and Consuelo
had refinanced the Property in 1993, which he mistook for the
original purchase. In fact, they had purchased the Property in
1987. Because of this error, [Respondent] sought to amend the
complaint to change the purchase date from 1993 to 1987.
Appellants opposed the motion, arguing the proposed
amendments were barred under the sham pleading doctrine
because they contradicted the allegations in the original
complaint.
“The court granted [Respondent] leave to add a quiet title
cause of action, but it denied the motion in all other respects.
The court concluded the sham pleading doctrine precluded
[Respondent] from amending his allegations regarding the
purchase date. The court noted it could not determine whether
[Respondent’s] mistake about the purchase date was reasonable
because he failed to produce a copy of the refinance agreement.
As to [Respondent’s] request to remove causes of action, the court
stated it was unnecessary because [Respondent] could simply file
a request for dismissal of any claims he no longer wished to
pursue.
“[Respondent] filed an amended complaint that included all
his prior claims plus a new claim for quiet title against Consuelo.
The quiet title claim alleged Consuelo continued to claim an
interest in the Property, despite having transferred her entire
interest to Iva and Miguel. In relief, [Respondent] sought a
declaration that only he, Iva, and Miguel had an interest in the
Property. After filing the amended complaint, [Respondent]
dismissed all his claims except those for partition and quiet title.”
(Campana, supra, B327132.)
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“In April 2020, Appellants filed a cross-complaint against
[Respondent], asserting a single cause of action for quiet title. . . .
In relief, Appellants sought an order compelling [Respondent] to
transfer his legal title to Appellants, a judgment enjoining
[Respondent] from claiming any right to the Property, and a
declaration that Appellants had the sole legal and equitable
rights to the Property.
“Appellants’ cross-complaint alleged that Iva is Mario and
Consuelo’s daughter from an affair they had while Mario was
married to another woman. In 1987—when Iva was 16 years old
—Mario agreed to help Consuelo buy the Property in lieu of
providing past and future financial support. Mario and Consuelo
were both named on the title to the Property. However, Consuelo
owned the entire beneficial interest and Mario held his interest
in trust for her. Mario agreed to transfer his interest to Consuelo
once she paid off the mortgage. He also agreed the entire
Property would eventually pass to Iva. Consuelo used the
Property as her primary residence, and she paid off the mortgage
in 1993. However, Mario refused to transfer title to her.”
(Campana, supra, B327132.)
“The parties tried their claims to the court over the course
of six days. Iva testified her parents purchased the Property in
1987 for $68,000, with a $20,000 down payment. They paid off
the original loan in 1993 and took out a second loan. Consuelo
alone made payments on the loans.
“Iva testified Mario repeatedly promised to transfer his
interest in the Property to her and Consuelo. Despite those
promises, he never signed a transfer deed and would come up
with some excuse for why he could not do so. Iva eventually
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stopped believing Mario would keep his promise to transfer the
Property to her.
“According to Iva, at some point, she and Consuelo learned
that Mario had transferred his interest in the Property to
[Respondent]. After learning of the transfer, Consuelo tried to
transfer the entire Property to Iva and Miguel. A clerk told her
that was not possible, so Consuelo instead deeded Iva and Miguel
a one-half interest.
“Iva testified she and Miguel were living on the Property
with Consuelo, who was 93 years old and suffering from
dementia. Iva said Consuelo continued to claim an ownership
interest in the Property, despite having deeded her interest to Iva
and Miguel nearly a decade earlier.
“[Respondent] testified his father transferred to him a one-
half interest in the Property in July 2013. Mario died about
three years later. According to [Respondent], Mario said he had
entered into a partnership agreement to purchase the Property
as an investment, but he did not disclose his partner’s name.
Over time, Mario revealed more details about the agreement,
including that Consuelo was his partner. Mario claimed he met
Consuelo at church, and he wanted to help her out because she
was pregnant and had no support. Mario said the agreement was
that Consuelo would live in the Property rent free until her child
turned 18 years old, and then Mario would exercise his option to
sell his share or buy out Consuelo’s share.
“[Respondent] testified he could not recall ever having met
Consuelo. He met Iva once, at her wedding to Miguel in 2009.
However, [Respondent] could not recall whether his father had
told him Iva is his half-sister. [Respondent] is significantly older
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than Iva; he graduated from high school the same year she was
born.
“[Respondent] explained that, after his father’s death, he
learned Appellants were claiming an interest in the Property. He
also discovered the property taxes had not been paid for several
years. [Respondent] explained he was claiming an ownership
interest in the Property under the transfer deed his father signed
in 2013, rather than under a partnership agreement.
[Respondent] wanted the Property partitioned, but he did not
care whether it was partitioned by appraisal or by sale.”
(Campana, supra, B327132.)
“The court entered an interlocutory judgment for partition
under Code of Civil Procedure section 872.720. The judgment
declares [Respondent] owns a one-half interest in the Property,
and Miguel and Iva each [owns] a one-quarter interest in the
Property. The judgment orders the Property be sold, stating,
‘Under the circumstances, the sale of the property and division of
the proceeds would be more equitable than division of the
property; the Court, therefore, orders that the property be sold
and the proceeds divided among the parties according to their
respective interests.’ The court appointed a referee to sell the
Property. The judgment also directs the Clerk of the Court to
issue a writ of possession under . . . section 712.010 if
[Respondent] applies for one.” (Campana, supra, B327132.)
As directed in the interlocutory judgment, Respondent
applied for a writ of possession.
II. This litigation
While the first appeal was pending, Appellants filed this
action against Respondent. The complaint alleged three causes of
action for (1) malicious prosecution, (2) elder abuse in violation of
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Welfare and Institutions Code section 15610.30, and (3) abuse of
process. The allegations were based on Respondent’s conduct in
the first litigation. With respect to the malicious prosecution
cause of action, Appellants alleged: Respondent sued Appellants
without probable cause, alleging causes of action for an
accounting, dissolution of partnership, constructive trust,
common count, and breach of fiduciary duty. Respondent also
requested compensatory, special and punitive or exemplary
damages. The elder abuse cause of action was based on the
allegations that Respondent “deliberately, falsely, and
maliciously obtain[ed] property from, seeking to evict from her
home, and inflict[ed] mental pain and suffering on, the elderly
Consuelo Saldana, including by the financial abuse of the
aforesaid malicious prosecution, . . . in violation of Welfare and
Institutions Code 15610.30.” The abuse of process cause of action
was based on Respondent obtaining a writ of possession over
Consuelo’s home while a receivership was in place on
February 21, 2023, which resulted in the Los Angeles County
Sheriff serving a five-day notice to vacate on Appellants.
Respondent filed a special motion to strike under
section 425.16, arguing each cause of action was based on
Respondent’s right of petition.
The trial court granted Respondent’s motion. It found
Respondent met his initial burden to show the allegations were
grounded on his previous litigation, and therefore his right to free
speech and petition as protected by section 425.16.
The trial court then turned to whether Appellants could
show a reasonable probability of prevailing on the merits.
The trial court found they could not. With respect to the
malicious prosecution cause of action, the trial court found,
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because Respondent voluntarily dismissed his causes of action for
accounting, partnership dissolution, constructive trust, common
count, and breach of fiduciary duty, but prevailed on the
remaining partition and quiet title causes of action, Appellants
could not show termination in their favor on the underlying
action. The trial court further found because the appeal in the
underlying litigation was still pending, Appellants could not
demonstrate a favorable resolution on the merits. The trial court
found the elder abuse cause of action was dependent on the
malicious prosecution action; therefore, Appellants had not met
their burden to show a reasonable probability of prevailing on the
merits of that cause of action for the same reasons. Finally, the
trial court found the Appellants could not demonstrate a
reasonable probability of prevailing on the merits of their abuse
of process cause of action because the interlocutory judgment
expressly authorized Respondent to apply for a writ of possession.
Appellants appealed.
DISCUSSION
I. Governing law and standard of review
A strategic lawsuit against public participation (SLAPP) is
a generally meritless civil lawsuit meant to chill the exercise of
free speech or petition rights. (Simpson Strong-Tie Co., Inc. v.
Gore (2010) 49 Cal.4th 12, 21 (Simpson).) The anti-SLAPP
statute authorizes “the filing of a special motion to strike to
expedite the early dismissal of these unmeritorious claims.”
(Simpson, at p. 21, citing § 425.16, subds. (b)(1), (f).)
“To encourage ‘continued participation in matters of public
significance’ and to ensure ‘that this participation should not be
chilled through abuse of the judicial process,’ the Legislature
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expressly provided that the anti-SLAPP statute ‘shall be
construed broadly.’ ” (Ibid., citing § 425.16, subd. (a).)
“A special motion to strike involves a two-step process.
First, the defendant must make a prima facie showing that the
plaintiff’s ‘cause of action . . . aris[es] from’ an act by the
defendant ‘in furtherance of the [defendant’s] right of petition or
free speech . . . in connection with a public issue.’ [Citation.] If a
defendant meets this threshold showing, the cause of action shall
be stricken unless the plaintiff can establish ‘a probability that
the plaintiff will prevail on the claim.’ ” (Simpson, supra,49 Cal.4th at p. 21, citing § 425.16, subd. (b)(1), fn. omitted.) The
plaintiff must demonstrate its claims have at least “ ‘minimal
merit.’ ” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1061 (Park).)
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept the plaintiff’s
submissions as true and consider only whether any contrary
evidence from the defendant establishes its entitlement to prevail
as a matter of law.” (Park, supra, 2 Cal.5th at p. 1067.)
II. Respondent’s activity arises from his right of
petition
A defendant meets its burden to show a particular act
arises from protected activity by “demonstrating that the act
underlying the plaintiff’s cause fits one of the categories spelled
out in section 425.16, subdivision (e).” (Navellier v. Sletten (2002)
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29 Cal.4th 82, 88.) These categories include: “(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.” (§ 425.16, (e).)
Here, Respondent has met his initial burden to prove the
challenged claims arise from protected activity. Appellants’
malicious prosecution and elder abuse causes of action allege that
Respondent’s underlying complaint lacked probable cause. In the
underlying complaint, Respondent pursued causes of action for
accounting, dissolution of partnership, constructive trust,
common counts, breach of fiduciary duty, and punitive damages.
Appellants’ abuse of process cause of action is based on the claim
that Respondent wrongfully sought a writ of possession causing a
five-day notice to vacate the property while the property was in a
receivership. Because these claims are based on Respondent’s
right to petition the courts to determine his ownership interest
and rights to the property, they fall into section 425.16,
subdivision (e)’s definition of protected activity. Further,
Respondent’s previous litigation qualifies as a written or oral
statement made before or in connection with a judicial
proceeding. (§ 425.16, subd. (e).) Therefore, the burden shifts to
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Appellants to show a reasonable probability of prevailing on the
merits.
III. Appellants have not shown their causes of action
have at least minimal merit
A. Malicious prosecution
“ ‘ “Malicious prosecution is a disfavored action.
[Citations.] This is due to the principles that favor open access to
the courts for the redress of grievances.” ’ [Citation.] ‘[T]he
elements of the [malicious prosecution] tort have historically been
carefully circumscribed so that litigants with potentially valid
claims will not be deterred from bringing their claims to court by
the prospect of a subsequent malicious prosecution claim.’
[Citation.] Three elements must be pleaded and proved to
establish the tort of malicious prosecution: (1) A lawsuit was
‘ “ ‘commenced by or at the direction of the defendant [which] was
pursued to a legal termination in . . . plaintiff’s . . . favor’ ” ’;
(2) the prior lawsuit ‘ “ ‘ was brought without probable cause’ ” ’;
and (3) the prior lawsuit ‘ “ ‘was initiated with malice.’ ” ’ ”
(Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.)
“To be considered ‘favorable’ for purposes of a malicious
prosecution action, a termination in the underlying action ‘must
reflect the merits of the action and the plaintiff’s innocence of the
misconduct alleged in the lawsuit.’ [Citations.] ‘The key is
whether the termination reflects on the underlying defendant’s
innocence. [Citations.] If the resolution of the underlying
litigation “leaves some doubt as to the defendant’s innocence or
liability[, it] is not a favorable termination, and bars that party
from bringing a malicious prosecution action against the
underlying plaintiff.” ’ [Citation.] Favorable termination ‘is an
essential element of the tort of malicious prosecution, and it is
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strictly enforced.’ ” (Staffpro, Inc. v. Elite Show Services, Inc.
(2006) 136 Cal.App.4th 1392, 1399–1400, fn. omitted.) “ ‘ “[T]he
criterion by which to determine which party was successful in the
former action is the decree itself in that action. The court in the
action for malicious prosecution will not make a separate
investigation and retry each separate allegation without
reference to the result of the previous suit as a whole.” ’ ”
(Crowley v. Katleman (1994) 8 Cal.4th 666, 684.)
Here, Appellants have not shown their malicious
prosecution action has at least minimal merit because they
cannot meet the first element—a favorable termination on the
merits. When Appellants filed the complaint at issue here,
Respondent had prevailed after a bench trial and the appeal of
the interlocutory judgment was still pending. “[A] malicious
prosecution action will not lie, and is deemed premature, while
an appeal from the judgment in the underlying action is
pending.” (Pasternack v. McCullough (2015) 235 Cal.App.4th
1347, 1356.) Moreover, while this appeal was pending, the
interlocutory judgment was affirmed in full by another division of
this court. Therefore, Appellants cannot show their malicious
prosecution cause of action has at least minimal merit.3
To the extent Appellants argue they can demonstrate at
least minimal merit with respect to the causes of action in the
underlying litigation that Respondent voluntarily dismissed,
“separate consideration of prior theories of claims is not
3 At oral argument, Appellants represented they filed an
appeal from the other division’s decision to the United States
Supreme Court. Regardless of the outcome of that appeal, it does
alter our conclusion that the filing of the malicious prosecution
action was premature.
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appropriate with respect to the element of favorable
termination.” (Dalany v. American Pacific Holding Corp. (1996)
42 Cal.App.4th 822, 829.) In a malicious prosecution action, the
plaintiff must demonstrate a “ ‘ “favorable termination of the
entire [underlying] action.” ’ ” (Staffpro, Inc. v. Elite Show
Services, Inc., supra, 136 Cal.App.4th at p. 1405.) Here, despite
voluntarily dismissing some of his causes of action, Respondent
achieved a favorable termination of the entire action on the
merits. This outcome precludes a showing that Appellants’
malicious prosecution cause of action has at least minimal merit.
B. Elder abuse
“The substantive law of elder abuse provides that financial
abuse of an elder occurs when any person or entity takes,
secretes, appropriates, or retains real or personal property of an
elder adult to a wrongful use or with an intent to defraud, or
both. A wrongful use is defined as taking, secreting,
appropriating, or retaining property in bad faith. Bad faith
occurs where the person or entity knew or should have known
that the elder had the right to have the property transferred or
made readily available to the elder or to his or her
representative.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th
156, 174.)
Appellants’ elder abuse cause of action essentially restates
their cause of action for malicious prosecution. Appellants claim
Respondent committed financial elder abuse because he sought to
assert his ownership rights and determine his interest in the
condominium that was the subject of the underlying litigation.
However, Respondent prevailed at trial and the judgment was
affirmed on appeal, entitling him to a 50 percent interest in the
property with a right to partition. Consequently, Appellants will
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not be able to show he wrongfully took or used the real property
or acted in bad faith when he sued to enforce those rights.
Therefore, Appellants cannot show their elder abuse cause of
action has at least minimal merit.
C. Abuse of process
To establish a cause of action for abuse of process, a
plaintiff must plead two essential elements: that the defendant
(1) entertained an ulterior motive in using the process and
(2) committed a willful act in a wrongful manner. (Coleman v.
Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)
Here, Appellants alleged Respondent committed an abuse
of process by obtaining a writ of possession on the condominium.
However, the interlocutory judgment expressly authorized
Respondent to apply for a writ of possession. (Campana, supra,
B327132.) Given this express language in the interlocutory
judgment, Appellants will not be able to demonstrate Respondent
entertained an ulterior motive in obtaining a writ of possession or
that he acted in a wrongful manner.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs
on appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J. WILEY, J.
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