Baul v. Lecaros CA2/3

Filed 8/30/22 Baul v. Lecaros CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
AUSTIN BAUL et al., B315968
Plaintiffs and Appellants, (Los Angeles County
Super. Ct.
v. No. 21STCV24082)
ADRIANO LECAROS,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Austin Baul, in pro. per., and Nila A. Jamias, in pro. per.,
for Plaintiffs and Appellants.
Law Offices of Richard Hofman and Richard Hofman for
Defendant and Respondent.
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Austin Baul and Nila A. Jamias (collectively plaintiffs)
appeal from a trial court order granting defendant Adriano
Lecaros’s special motion to strike under the anti-SLAPP statute
(Code Civ. Proc., § 425.16),1 and dismissing two causes of action
in their complaint. We conclude that those causes of action arise
from protected activity as defined in subdivision (e) of section
425.16, and that plaintiffs have not demonstrated a likelihood of
prevailing on the merits of their claims. We therefore affirm the
trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior litigation and restraining order requests
The parties have been involved in a leadership dispute
within the Filipino American Community of Los Angeles, Inc.
(FACLA), a nonprofit organization of which Lecaros, Fernandico
Gonong, Jr., and Maximo Fortu were former directors or officers.2
In December 2018, litigation resulted in a trial court order
installing nonparty Veronico Agatep as FACLA president.
According to plaintiffs’ complaint, while Gonong appealed that
decision, he barred Agatep from entering FACLA’s offices. In
April 2020, another division of this court affirmed the order
installing Agatep as president. (Caratao v. Gonong (Apr. 2, 2020,
B294469) [nonpub. opn.].) Plaintiffs have alleged that in May
2020, Agatep appointed Baul (who was also the former president
of FACLA) as his assistant and Jamias as office manager.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2 This appeal concerns the motion to strike filed by Lecaros
alone. The remaining defendants are not parties to this appeal.
2
On June 8, 2020, Gonong filed requests for civil harassment
restraining orders protecting himself, Lecaros, and Fortu from
plaintiffs. The requests alleged that on May 23, 2020, plaintiffs
and others broke into the FACLA offices, stole from the office,
damaged property, and threatened physical violence. Following a
June 29 hearing at which Gonong, Lecaros, and plaintiffs
testified, the trial court denied the requests, finding Gonong had
not met his burden of proof.
On August 27, 2020, Lecaros filed requests for civil
harassment restraining orders protecting himself, his adult
daughter, and his spouse from plaintiffs.3 The requests alleged
plaintiffs made repeated threats to cause the Lecaros family
physical harm, to damage their property, and to steal from
Lecaros’s home and office. The requests further alleged that on
August 14, plaintiffs broke into FACLA’s offices and destroyed
and stole property. The petitions also alluded to past instances,
as early as 2018, as well as additional events in August, during
which plaintiffs allegedly broke into Lecaros’s office, stole
property, and defamed Lecaros and others on social media and in
the community. In September 2020, the trial court denied
Lecaros’s petitions.
II. The underlying complaint
In June 2021, plaintiffs filed a complaint against Lecaros,
Gonong, Fortu, and four other individuals, alleging causes of
action for abuse of process, “lying to the police,” and intentional
infliction of emotional distress. The complaint alleged that on
June 8, 2020, Gonong, Lecaros, and Fortu “conspired” and
3 In
their respective requests for restraining orders, Gonong
and Lecaros each filed one petition per plaintiff.
3
wrongfully used legal process by filing requests for temporary
restraining orders against plaintiffs. The complaint similarly
alleged that on August 27, 2020, Lecaros, his adult daughter, and
his spouse, conspired and wrongfully used legal process by filing
restraining order requests against plaintiffs and Agatep.4
Plaintiffs denied the conduct alleged in the June 2020
restraining order requests, claiming they were at home. They
further denied breaking into FACLA in August 2020, threatening
the Lecaros family, or stealing anything. The complaint alleged a
court order entitled them to enter the FACLA premises as
officers. According to the complaint, the petitions were
defendants’ attempts to again alter the leadership structure and
have plaintiffs barred from FACLA’s premises. The complaint
further alleged Gonong and another codefendant gave a false
report to police regarding the June and August incidents.
Plaintiffs alleged they were 80 and 75 years old and being
served with the restraining order petitions caused them anxiety
and stress that exacerbated their existing health conditions.
III. Lecaros’s special motion to strike
In August 2021, Lecaros filed a special motion to strike the
complaint, arguing that because the abuse of process and
intentional infliction of emotional distress claims arose out
statements and activities occurring in or related to judicial
proceedings, they were protected activities grounded in his
exercise of his constitutionally protected rights to petition and of
free speech. For this reason, and because the litigation privilege
set forth in Civil Code section 47, subdivision (b) barred claims
4 Only the requests seeking to restrain plaintiffs are
included in the record.
4
arising out of judicial proceedings, those two claims were subject
to dismissal under the anti-SLAPP statute (Code Civ. Proc.,
§ 425.16).
Plaintiffs opposed the motion, arguing the leadership
dispute that was the subject of their claims did not relate to a
public issue and therefore was not subject to the anti-SLAPP law.
They also contended their claims had substantive merit and did
not arise out of privileged communications because they fell
under a statutory exception for communications to law
enforcement.
Plaintiffs did not appear at the September 2021 hearing on
Lecaros’s motion. The trial court granted the special motion to
strike and dismissed the abuse of process and intentional
infliction of emotional distress causes of action as to Lecaros. The
court concluded that filing a lawsuit was a protected activity and
that an anti-SLAPP movant need not separately demonstrate
that statements contained in a pleading concerned an issue of
public importance. Further, plaintiffs could not establish a
probability of prevailing on the merits on the abuse of process
and intentional infliction of emotional distress causes of action
because they were subject to the litigation privilege. The court
found the exception that plaintiffs invoked did not apply because
the communications at issue were not directed toward law
enforcement, but to the court during litigation.
Plaintiffs timely appealed.5
5 An order denying an anti-SLAPP motion is immediately
appealable as an exception to the general nonappealability of
interlocutory orders. (§ 425.16, subd. (i); § 904.1, subd. (a)(13).)
Although plaintiffs’ notice of appeal indicates they appeal from
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DISCUSSION
I. General principles of anti-SLAPP and standard of
review
Under section 425.16, subdivision (b)(1), “[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.”
“The anti-SLAPP statute does not insulate defendants from
any liability for claims arising from the protected rights of
petition or speech. It 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.)
In evaluating an anti-SLAPP motion, the trial court first
“determines whether the [moving] defendant has made a
threshold showing that the challenged . . . action arises from
protected activity,” that is, activity in furtherance of the rights of
petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1056; see generally § 425.16, subd. (e).) If the answer is
yes, the burden shifts to the plaintiff to demonstrate a probability
an order dismissing the case after sustaining a demurrer, we
liberally construe their notice of appeal to encompass the anti-
SLAPP order. (Cal. Rules of Court, rule 8.100(a)(2); Ellis Law
Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014)
230 Cal.App.4th 244, 251 [notice of appeal was sufficient even
though wrong box checked].)
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of prevailing on the merits. (Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 819–820.)
On appeal, we review an order granting or denying a
special motion to strike de novo. (Oasis West Realty, LLC v.
Goldman, supra, 51 Cal.4th at pp. 819–820.) We consider the
“pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) We broadly construe the anti-SLAPP statute. (Id.,
subd. (a).) “[W]e neither ‘weigh credibility [nor] compare the
weight of the evidence.’ ” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3.)
II. The challenged causes of action arose from protected
activity
Under section 425.16, a cause of action arises from
protected activity if the conduct of the defendant on which the
cause of action is premised was in furtherance of the defendant’s
right of petition or free speech. (City of Cotati v. Cashman (2002)
29 Cal.4th 69, 78 [“statutory phrase ‘cause of action . . . arising
from’ means simply that the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech”].) An act in
furtherance of the right of petition or free speech includes “any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding.” (§ 425.16, subd. (e)(1).) It also
includes “any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body.” (§ 425.16, subd. (e)(2).)
It is well established that filing a lawsuit is an exercise of a
party’s constitutional right of petition. (Soukup v. Law Offices of
Herbert Hafif, supra, 39 Cal.4th at p. 291 [the “filing of lawsuits
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is an aspect of the First Amendment right of petition”]; Navellier
v. Sletten (2002) 29 Cal.4th 82, 90 [the “constitutional right of
petition encompasses ‘ “ ‘the basic act of filing litigation’ ” ’ ”].)
The same is true of a petition seeking a restraining order. (S.A.
v. Maiden (2014) 229 Cal.App.4th 27, 35.)
Here, the entire basis for the abuse of process and
intentional infliction of emotional distress claims was the
allegation that Lecaros filed three restraining order requests
containing false information. Because the claims were
fundamentally based upon the exercise of the right to petition,
they arose from protected activities. (Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
Plaintiffs nonetheless contend that the constitutional right
to petition does not protect four petitions asserting the same
allegations. In other words, plaintiffs acknowledge that one such
request might constitute a valid assertion of the right to petition,
but argue that several requests with identical allegations are not.
We reject plaintiffs’ argument as contrary to the record. Lecaros
was only alleged to have simultaneously filed three petitions of
similar substance, differing only insofar as they sought relief
against separate individuals. In other words, the allegations
related to Lecaros in essence amounted to a single instance of
petitioning, which, as plaintiffs agree, is protected activity under
the anti-SLAPP law.6
6 To the extent plaintiffs’ complaint provided any basis to
argue Lecaros engaged in separate or sequential acts of
petitioning, we further note they have failed to provide any legal
authority for the proposition that such conduct is not protected
activity, and we are aware of none. The argument is forfeited.
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Lecaros met his burden of showing that the two causes of
action that were the subject of his anti-SLAPP petition arose
from protected activity under section 425.16, subdivision (e).
III. Plaintiffs have not demonstrated a probability of
prevailing on the merits
Plaintiffs argue they established a probability of prevailing
on their abuse of process and intentional infliction of emotional
distress claims because the claims had substantive merit, and
therefore fall outside the ambit of the litigation privilege. They
also contend the statements within Lecaros’s requests were not
privileged because they were neither related to the requests, nor
served the purpose of achieving the objectives of the requests.
Their arguments are unavailing.
The litigation privilege affords litigants the “utmost
freedom of access to the courts without fear of being harassed
subsequently by derivative tort actions.” (Silberg v. Anderson
(1990) 50 Cal.3d 205, 213.) It is applicable to any litigant’s
communication required or permitted by law during a judicial
proceeding to achieve the objects of the litigation and with some
relation to the action. (Id. at p. 212.) “ ‘[C]ommunications with
“some relation” to judicial proceedings’ are ‘absolutely immune
from tort liability’ by the litigation privilege.” (Rusheen v. Cohen,
supra, 37 Cal.4th at p. 1057.) The privilege applies to all tort
causes of action except malicious prosecution. (Hagberg v.
California Federal Bank (2004) 32 Cal.4th 350, 360.)
(Salehi v. Surfside III Condominium Owners Assn. (2011) 200
Cal.App.4th 1146, 1161–1162 [failure to support theories for
reversal results in abandonment of appellant’s claims].)
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Here, the abuse of process and intentional infliction of
emotional distress causes of action that were the subject of
Lecaros’s motion are plainly subject to the litigation privilege.
(Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 125.)
Plaintiffs devote much of their appellate briefing to arguing the
substantive merit of these causes of action, but because the
privilege has “ ‘absolute’ ” applicability to the torts at issue, the
privilege applies regardless of the merit, if any, of the allegations.
(Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360.)
Tort liability is barred for the conduct which forms the basis of
plaintiffs’ claims against Lecaros.
Plaintiffs further rely on Kinnamon v. Staitman & Snyder
(1977) 66 Cal.App.3d 893, 897 and Earp v. Nobmann (1981) 122
Cal.App.3d 270, 284, to argue the litigation privilege does not
apply because Lecaros’s statements were not reasonably related
to the litigation and were made only to inflict emotional distress.
However, our Supreme Court has explicitly rejected the
reasoning on which plaintiffs purport to rely and has disapproved
both cases. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
“[A]pplication of the privilege does not depend on the publisher’s
‘motives, morals, ethics or intent,’ ” and it applies to
communications so long as they have “ ‘some relation’ to a judicial
proceeding.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892,
913.) These principles squarely apply to plaintiffs’ abuse of
process and intentional infliction of emotional distress causes of
action against Lecaros.
Plaintiffs failed to meet their burden of showing a
probability of prevailing on the challenged claims. We find no
error in the trial court order granting Lecaros’s special motion to
strike those causes of action.
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IV. Plaintiffs’ remaining arguments are forfeited
Plaintiffs further contend that the trial court’s decision
violated their rights under the California Constitution, article I,
section 1, and that the restraining orders violated the double
jeopardy clause of the Fifth Amendment to the United States
Constitution. Because these arguments were not raised before
the trial court, we decline to address them in the first instance.
(In re S.B. (2004) 32 Cal.4th 1287, 1293 [parties forfeit
arguments not raised in trial court]; People v. Simon (2001) 25
Cal.4th 1082, 1103 [principle that failure to timely assert
constitutional right amounts to forfeiture applies equally to civil
cases].)
V. Appellate sanctions and attorney fees
Lecaros requests that we award him attorney fees as a
sanction against plaintiffs for filing a frivolous appeal, but he has
failed to file a separate sanctions motion. (Cal. Rules of Court,
rule 8.276(b)(1).) Sanctions may not be sought in the
respondent’s brief and the request is denied. (Cowan v.
Krayzman (2011) 196 Cal.App.4th 907, 919.) However, as the
prevailing defendant, Lecaros is entitled to attorney fees
pursuant to section 425.16, subdivision (c)(1). (Wilkerson v.
Sullivan (2002) 99 Cal.App.4th 443, 448 [defendant entitled to
attorney fees and costs incurred in plaintiff’s appeal as prevailing
defendant on anti-SLAPP motion]; Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 659.)
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DISPOSITION
The trial court’s order granting Adriano Lecaros’s special
motion to strike pursuant to Code of Civil Procedure section
425.16 is affirmed. Lecaros is to recover his attorney fees and
costs on appeal, in amounts to be determined by the trial court.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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