Ryckman v. Drexler CA2/1

Filed 4/28/23 Ryckman v. Drexler CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GERALD OWEN RYCKMAN et al., B319664
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 21STCV22674)
v.
DAVID DREXLER et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Malcolm Mackey, Judge. Affirmed.
Gerald Owen Ryckman and Judith Lorraine Ryckman, in
pro. per., for Plaintiffs and Appellants.
Schwimer Weinstein, Mitchell E. Rosensweig and Michael
E. Schwimer for Defendants and Respondents.
____________________
This appeal arises out of a series of legal disputes that
began with a disagreement concerning the ownership of an office
building. In November 2015, respondents David Drexler and
Laura Drexler (as trustees of the Drexler Trust dated June 24,
1994) sued appellants Gerald Owen Ryckman and Judith
Lorraine Ryckman (as trustees of the Ryckman Trust dated
October 10, 1990) for partition of the real estate in Los Angeles
County Superior Court case No. LC103510 (the partition action).
During the partition action, the court imposed evidentiary
sanctions on the Ryckmans for non-compliance with discovery
obligations.
On June 17, 2021, the Ryckmans (individually and as
trustees of the Ryckman Trust) filed a complaint against the
Drexlers (individually and as trustees of the Drexler Trust), the
Law Offices of David Drexler, and Michael Schwimer, who was
the attorney representing the Drexlers in the partition action
(collectively, Defendants).1 The sole relief the Ryckmans sought
in this new action (the secondary action) was that the trial court
“not consider or enforce” the evidentiary sanctions orders entered
in the pending partition action because the orders were allegedly
obtained through fraud and void.
Defendants filed special motions to strike the complaint in
the secondary action pursuant to the anti-SLAPP provisions of
1 The Ryckmans filed other litigation as well, including four
appeals and four writ petitions. As those other matters are not
pertinent to the resolution of this appeal, we do not summarize
them and confine our recitation of facts only to what is necessary
for this appeal.
2
Code of Civil Procedure section 425.16.2 Within days of filing
their oppositions to the special motions to strike, the Ryckmans
voluntarily dismissed the secondary action. Defendants
thereafter moved for attorney fees and costs as prevailing
defendants under section 425.16, subdivision (c). The Ryckmans
did not oppose the fee motions, nor did they appear at the
hearing on the motions. The trial court granted fees and costs to
the Drexlers and Schwimer in the amounts of $29,727.55 and
$21,601.30, respectively. It thereafter entered judgment stating
Defendants’ special motions to strike were meritorious, awarding
$29,727.55 to the Drexlers and $21,601.30 to Schwimer, and
concluding that the Ryckmans were to take nothing on their
complaint against Defendants.
The Ryckmans now appeal, contending their voluntary
dismissal of the secondary action deprived the trial court of
jurisdiction to enter a judgment awarding attorney fees and costs.
They further argue the trial court erred in awarding fees and
costs to Defendants because it failed to first rule on the special
motions to strike.
We affirm. A trial court retains jurisdiction following a
dismissal to rule on motions for attorney fees and costs, and the
Ryckmans have demonstrated no error in the trial court’s ruling
awarding fees. It is well established that we presume the
correctness of the trial court’s orders, including that the trial
2 All unspecified statutory references are to the Code of
Civil Procedure. SLAPP is an acronym for “strategic lawsuit
against public participation.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 57.) We also refer to a “SLAPP”
or “anti-SLAPP” motion as “a special motion to strike”—the
language used in the statute (§ 425.16, subd. (b)(1)).
3
court knew and applied the correct standard, and that it is
appellants’ burden to overcome this presumption on appeal. The
Ryckmans have not done so on the record before us, and did not
adduce below any evidence demonstrating the sanctions orders
were obtained through fraud or were void or demonstrating any
reversible error in the award of fees and costs.
BACKGROUND
A. Factual Summary
On November 2, 2015, the Drexlers, as trustees of the
Drexler Trust, filed a verified complaint against the Ryckmans,
as trustees of the Ryckman Trust, for partition and recovery of
monies relating to an office building for which each of the two
trusts were on title.3 On March 14, 2016, the Ryckmans cross-
complained.
On April 28, 2017, the trial court, Judge Frank J. Johnson
presiding, granted the Drexlers evidentiary sanctions against the
Ryckmans for the Ryckmans’ failure to provide satisfactory,
court-ordered discovery responses to certain interrogatories. The
trial court’s minute order provided, “The [c]ourt notes that [the
Ryckmans] were previously . . . ordered to provide further
responses to [s]pecial [i]nterrogatories 5, 8, 9, 10, 11, 14, 15, 20,
21, 23 and 24. It appears that the response[s] produced pursuant
to the order were the same as previously produced but without
objections. The interrogatories ask for facts. [The Ryckmans]
maintain[ ] that they have no[ ] supporting facts and all
supporting material is with the [Drexlers]. [¶] The [o]pposition
3On December 3, 2015, the Drexlers amended their
complaint to delete the phrase “notified defendants of the
appraisal and.”
4
is odd in that [the Ryckmans’] assertion that all facts are with
the [Drexlers] implies that [the Ryckmans] have no facts or
evidence to support their position. [¶] The [c]ourt hears further
argument. The [c]ourt tries to impress upon the [Ryckmans] that
the [Drexlers] will not prove their case for them. [The Ryckmans]
still insist that they have no recollection or records to support
their position. However, if there are no facts the proper response
is to document efforts to comply and why compliance is not
possible. [The Ryckmans] did not do this and are technically in
violation of the discovery order. [The Ryckmans] must provide
facts to support their position, not allegations. [¶] The [c]ourt
will not award terminating sanctions, but will grant what
amount to evidentiary sanctions. As to the 11 special
interrogatories, [the Ryckmans] are bound by the responses
provided. Practically, this means that, at least as to the 11
special interrogatories above, that [the Ryckmans] are bound by
the position that they have no evidence or supporting facts. [The
Ryckmans] will not be permitted to ‘find’ evidence for trial at a
later date. [¶] Counsel for the moving party is to prepare and
submit an[ ] order for the [c]ourt’s signature.” The record does
not include a transcript of the April 28, 2017 hearing.
On May 25 and 26, 2017, the trial court executed and
entered the sanctions orders prepared by the Drexlers. The
orders prohibited the Ryckmans from introducing evidence at
trial beyond what was stated in their deficient discovery
responses, including evidence that the Ryckmans were “owed or
entitled to any rents or profits produced by the [p]roperty” (the
rents and profits provision).
Nearly two years later, on March 22, 2019, the Ryckmans
filed a motion in the partition action to strike the rents and
5
profits provision of the sanctions orders. The Ryckmans claimed
the trial court’s minute order following the April 28, 2017 hearing
did not state they could not present evidence of rents or profits
due to them, that none of the 11 interrogatories related to the
Ryckmans’ entitlement to rents and profits, and that Schwimer
improperly “slipped in” reference to such rents or profits into the
sanctions orders.
On April 16, 2019, Judge Johnson issued a minute order
observing the trial court “fully considered the arguments of all
parties, both written and oral, as well as the evidence presented,”
and denied the Ryckmans’ motion to strike. A transcript of this
hearing is not included in the record.
On or about September 24, 2019, the Ryckmans filed a
motion in the partition action to “vacate” the sanctions orders.
The Ryckmans argued the sanctions orders were “forged,”
obtained by extrinsic fraud, and void. They argued, “A simple
side by side comparison of the [c]ourt’s [m]inute [o]rder (Exhibit[
]A) and the [o]rder forged by Schwimer (Exhibit[ ]B) is all that is
required to determine the invalidity of Schwimer’s forged order.”
They concluded, “Schwimer committed[ ] multiple felonies, by
forging into the [sanctions o]rders, at the very, very end, the
following 14 words[,] ‘or is owed or entitled to any rents or profits
produced by the [p]roperty[.’] ” (Italics and bold omitted.)
On October 18, 2019, the trial court, Judge Shirley K.
Watkins presiding, issued a written ruling denying the
Ryckmans’ motion. The trial court found, inter alia, that the
Ryckmans “failed to establish that the [sanctions o]rders are void
on [their] face.” The trial court also observed, “While it is true
that those specific words do not appear in the minutes, the
purpose of having the court sign an order is to state with
6
specificity what the court orders. It is common that not every
single statement made by the court does not appear in the
minutes of the court.” The trial court further observed that
Judge Johnson had an opportunity to strike the offending
language if it did not accurately reflect his intent when the
Ryckmans brought their March 22, 2019 motion to strike, and
Judge Johnson declined to do so.
On August 14, 2019, the Drexlers filed a motion in limine
in the partition action to exclude evidence at trial pursuant to the
sanctions orders, which the parties referred to as amended
motion in limine No. 8.
On June 18, 2021, the trial court granted the Drexlers’
amended motion in limine No. 8. It found “the May 25, 2017 and
May 26, 2017 orders are valid and will be enforced. This [c]ourt
has looked at the court records and the orders were signed and
entered properly and they remain in effect. They are valid court
orders and there does not appear to be any impropriety by
counsel.”
On September 17, 2021, the trial court entered judgment
on the Drexlers’ cause of action for partition in their favor. It
also entered judgment against the Ryckmans on their cross claim
for partition. At the time the Ryckmans filed the record in the
instant appeal, the parties were scheduled to begin a jury trial on
the remaining causes of action on March 14, 2023.
B. Procedural History of the Instant Matter
On June 17, 2021, one day prior to the hearing scheduled
for amended motion in limine No. 8, the Ryckmans initiated the
secondary action by filing a complaint against Defendants. The
Ryckmans purported to bring an “independent action in equity”
by which they sought to “preclude enforcement of the void
7
portion” of the sanctions orders and requested the trial court “not
consider or enforce” the sanctions orders.4
On July 20, 2021, the Drexlers and Schwimer filed a
motion to declare the Ryckmans vexatious litigants.
On July 23, 2021, the Drexlers and Schwimer filed special
motions to strike the complaint in the secondary action pursuant
to section 425.16.
On August 2, 2021, the Ryckmans filed an ex parte
application requesting, inter alia, that the trial court strike the
Drexlers’ and Schwimer’s anti-SLAPP and vexatious litigant
motions. The Ryckmans argued the Drexlers and Schwimer filed
their motions to avoid depositions and a finding that the
sanctions orders were void because they were “forged.” They
further argued they could bring an independent action in equity
to attack a void order.
On August 3, 2021, Defendants filed their opposition to the
Ryckmans’ ex parte application, and the Ryckmans filed their
oppositions to the special motions to strike. The Ryckmans
argued Defendants could not use a special motion to strike to
attack an “independent action in equity” brought to challenge a
void order.
4 According to the register of actions for the secondary
action, on June 17, 2021, the Ryckmans also filed a notice of
related case. On June 21, 2021, the register of actions stated,
“Updated—Notice of Related Case . . . [a]s [t]o [p]arties:
removed.” On September 21, 2021, in the partition action, the
Drexlers filed a notice of related case. On September 22, 2021,
the trial courts in the partition and secondary actions issued
orders denying a notice of related case, but it is not clear to which
notice these denials applied.
8
On August 5, 2021, the trial court denied the Ryckmans’ ex
parte application.
On August 6, 2021, the Ryckmans requested and were
granted dismissal of the entire secondary action without
prejudice.5
On August 9, 2021, Defendants filed their reply briefs in
support of their special motions to strike. They argued,
“Although the Ryckmans’ voluntary dismissal of this action has
deprived the [c]ourt of jurisdiction to rule on this motion, the
[c]ourt nonetheless retains jurisdiction to award . . . attorney[ ]
fees and costs incurred in bringing this motion. . . . By virtue of
the Ryckmans[’] dismissal of this action, [Defendants] are
presumed to have prevailed on this motion for the purpose of
determining their entitlement to fees and costs under the anti-
SLAPP statute.”
On October 5, 2021, the Drexlers and Schwimer 6 filed
motions for “entry of judgment and award of prevailing party
anti-SLAPP attorney[ ] fees” in the amounts of $29,727.55 and
$21,601.30, respectively, under section 425.16, subdivision (c). In
their motions, Defendants recounted the Ryckmans multiple
unsuccessful attempts to undo the sanctions orders. Relying on a
standard articulated in Coltrain v. Shewalter (1998) 66
Cal.App.4th 94, Defendants argued they prevailed because, “The
goal of [Defendants’] anti-SLAPP [m]otion[s] was to obtain the
5The Ryckmans filed another request for dismissal on
August 9, 2021.
6 The Drexlers’ motion does not appear to be brought on
behalf of the Law Offices of David Drexler, which is also not
included in the judgment entered thereafter.
9
dismissal of this action. That end has now been achieved.
Conversely, the Ryckmans’ goal in bringing this action was to
collaterally attack the [s]anctions [o]rders so that they could not
be used against them at trial. To that end, the Ryckmans have
failed not only because they dismissed this action, but because
trial of the partition claims in the [partition a]ction has been
held, and judgment entered against them therein.”7
The Ryckmans did not file an opposition to Defendants’
attorney fees motions. On January 24, 2022, Defendants filed
replies in support of their motions for attorney fees and entry of
judgment.
On January 31, 2022, Defendants appeared for the hearing
on their motions for fees. The Ryckmans did not appear. The
trial court granted the Drexlers’ and Schwimer’s motions. In its
minute order, the trial court acknowledged, “ ‘ “[A] defendant who
is voluntarily dismissed . . . after filing an [anti-SLAPP motion],
is nevertheless entitled to have the merits of such motion heard
as a predicate to a determination of the defendant’s motion for
attorney’s fees and costs.” ’ [Citation.]” It also observed a
prevailing defendant is entitled to mandatory, reasonable fees
and costs and that the trial court had no obligation to advance
arguments on behalf of a party after the party fails to file a
proper and timely opposition.
On February 4, 2022, Defendants lodged a proposed
judgment with the trial court. It stated, inter alia, “The court
finds that defendants David Drexler[ ] and Laura Drexler’s
7On October 14, 2021, the trial court denied Defendants’
motion to have the Ryckmans declared vexatious litigants. The
Ryckmans did not appear at the hearing.
10
[s]pecial [m]otion to [s]trike is meritorious and that defendants
David Drexler and Laura Drexler are ‘prevailing parties’ and
entitled to attorneys’ fees pursuant to [section] 425.16[,
subdivision ](c). The court likewise finds that defendant Michael
Schwimer’s [s]pecial [m]otion to [s]trike is meritorious and that
defendant Michael Schwimer is a ‘prevailing party’ and entitled
to attorneys’ fees pursuant to [section] 425.16[, subdivision ](c).”
The proposed judgment also decreed that judgment on the
Ryckmans’ complaint in the secondary action was granted in
favor of Defendants; that the Ryckmans and their trust shall take
nothing on their complaint against Defendants; that the
Ryckmans were ordered to pay $29,727.55 (plus interest) to the
Drexlers as prevailing party attorney fees under section 425.16,
subdivision (c); and that the Ryckmans and their trust were
ordered to pay $21,601.30 (plus interest) to Schwimer as
prevailing party attorney fees under section 425.16, subdivision
(c).
On February 14, 2022, the Ryckmans objected to the
proposed judgment. They contended the trial court was without
jurisdiction to grant Defendants’ fee motions because, inter alia,
Defendants “abandoned” their special motions to strike and the
trial court did not hold a hearing on the motions. On
February 22, 2022, the trial court issued a minute order stating it
reviewed the Ryckmans’ objections and entered the judgment
over those objections.
The Ryckmans timely appealed.
DISCUSSION
The Ryckmans argue the trial court lacked jurisdiction to
enter a judgment awarding attorney fees to Defendants because
the Ryckmans voluntarily dismissed the secondary action prior to
11
the hearing on the special motions to strike and motions for
attorney fees. They also argue the trial court erred in granting
Defendants’ motions for attorney fees without first ruling on the
merits of the special motions to strike.
A. The Trial Court Did Not Lack Jurisdiction to Rule on
the Anti-SLAPP or Attorney Fees Motions and Enter
Judgment
It is well established that “[u]pon the proper filing of a
request to voluntarily dismiss a matter, the trial court loses
jurisdiction to act in the case, ‘except for the limited purpose of
awarding costs and statutory attorney fees.’ ” (Law Offices of
Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876; see
Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447,
1456 [observing “[n]umerous courts have agreed . . . that a trial
court retains jurisdiction to award attorney fees pursuant to
[§] 425.16, [subd.] (c)(1) after a plaintiff voluntarily dismisses its
complaint while a special motion to strike is pending” and listing
cases].) A majority of appellate courts have held that
notwithstanding a voluntary dismissal, a trial court must
determine the merits of a special motion to strike as a predicate
to awarding fees and costs under section 425.16. subdivision (c).
(Liu v. Moore (1999) 69 Cal.App.4th 745, 751-752 [remanding, in
a matter where the plaintiff voluntarily dismissed the defendant,
for a determination of the defendant’s § 425.16 special motion to
strike as a predicate to awarding fees and costs]; accord, Catlin
Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73
Cal.App.5th 764, 775, fn. 5 [“agree[ing] . . . that a ruling on the
merits of an anti-SLAPP motion is required as a predicate to an
award of fees under [§] 425.16, [subd.] (c), provided that, as we
hold in this case, a timely fees motion is filed”]; Tourgeman v.
12
Nelson & Kennard, supra, 222 Cal.App.4th at pp. 1457-1458
[remanding for a determination on the merits of the defendant’s
special motion to strike, notwithstanding the plaintiff’s voluntary
dismissal, as a predicate to awarding fees]; Pfeiffer Venice
Properties v. Bernard (2002) 101 Cal.App.4th 211, 218
[concluding the trial court erred in finding it lacked jurisdiction
to hear a § 425.16, subd. (c) motion for attorney fees following
dismissal and remanding for a hearing on the special motion to
strike]; but see Coltrain v. Shewalter, supra, 66 Cal.App.4th at
p. 107 [stating that in determining whether a defendant is a
prevailing party under § 425.16, subd. (c), “the critical issue is
which party realized its objectives in the litigation”].)
As the above cases demonstrate, because a finding on the
merits of a special motion to strike is a necessary predicate to
awarding section 425.16, subdivision (c) fees, the trial court
retained jurisdiction not only to determine Defendants’ motions
for attorney fees, but also to determine the merits of the anti-
SLAPP motions as a prerequisite to awarding fees. The
Ryckmans have not presented any authority or argument why a
trial court cannot then enter judgment reflecting its rulings on
these issues for which it retained limited jurisdiction.
B. The Ryckmans Have Not Demonstrated Prejudicial
Error
“ ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564, italics omitted.) This includes “the
‘basic presumption indulged in by reviewing courts that the trial
court . . . kn[ew] and applied the correct statutory and case law in
13
the exercise of its official duties.’ ” (People v. Bankers Ins. Co.
(2020) 57 Cal.App.5th 418, 425, quoting People v. Mack (1986)
178 Cal.App.3d 1026, 1032.) Further, in general, trial court error
does not automatically require reversal of an appealed judgment.
We reverse only for prejudicial errors. (F.P. v. Monier (2017) 3
Cal.5th 1099, 1107-1108.)
The Ryckmans argue the trial court erred because it did not
rule on the merits of the anti-SLAPP motions before awarding
fees. Defendants argue the Ryckmans failed to timely make this
argument before the trial court and have therefore waived the
issue on appeal. “Failure to register a proper and timely
objection to a ruling or proceeding in the trial court waives the
issue on appeal.” (Bell v. American Title Ins. Co. (1991) 226
Cal.App.3d 1589, 1602.) The Ryckmans did not file an opposition
to the motions for fees and did not appear at the hearing on those
motions. Instead, they filed an objection to the draft judgment in
which they belatedly argued the trial court could not grant
attorney fees and costs to Defendants because, inter alia, it did
not rule on the merits of the anti-SLAPP motions. Thus, the
Ryckmans did not timely object to the proceedings and have
forfeited their argument on appeal.
Even if we overlooked this forfeiture and considered the
merits of the Ryckmans’ arguments, we would conclude the
Ryckmans have not affirmatively demonstrated prejudicial error.
The Ryckmans appear to argue that because the trial court
vacated the hearings on the special motions to strike after their
dismissal was filed, the trial court never reached the merits of
the motions, even at the hearing on the motion for attorney fees.
However, the Ryckmans did not attend the hearing for
Defendants’ motion for fees or provide a transcript of it. Their
14
argument simply invites us to speculate in their favor. We
cannot. We must presume the trial court applied the correct
standard in ruling on the motions before it. (See People v.
Bankers Ins. Co., supra, 57 Cal.App.5th at p. 425; see also
Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Indeed,
the record suggests the trial court did apply the correct standard.
Although the trial court did not expressly state in its minute
order that it found the special motions to strike meritorious, it
acknowledged the standard that required it to make such a
finding, stating, “ ‘ “[A] defendant who is voluntarily dismissed
. . . after filing an [anti-SLAPP motion], is nevertheless entitled
to have the merits of such motion heard as a predicate to a
determination of the defendant’s motion for attorney’s fees and
costs.” ’ [Citation.]”8 Further, the trial court’s judgment stated
Defendants’ special motions to strike were “meritorious” and
Defendants were “ ‘prevailing parties.’ ”
Finally, even if we hypothesize that the trial court did not
rule on the merits of the anti-SLAPP motions, any failure to do so
was harmless. The record demonstrates Defendants’ special
motions to strike were meritorious, and given the merit of those
motions, section 425.16, subdivision (c) mandated that the court
award Defendants attorney fees and costs as prevailing parties.
(§ 425.16, subd. (c) [“a prevailing defendant on a special motion to
8 The Ryckmans also take issue with Defendants’ reliance
on the standard articulated in Coltrain v. Shewalter, supra, 66
Cal.App.4th 94, which does not require a finding on the merits
but asks instead who achieved their objectives in the litigation.
(See id. at p. 107.) Yet nothing in the record suggests the trial
court relied on this standard, especially when it articulated the
correct standard in its minute order.
15
strike shall be entitled to recover that defendant’s attorney’s fees
and costs”].)
The anti-SLAPP statute provides that, “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.” (§ 425.16, subd. (b)(1).) Relevant here, acts
in furtherance of the right of free speech include: “(1) any written
or oral statement or writing made before a . . . judicial
proceeding, or any other official proceeding authorized by law[;
and] (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a . . .
judicial body, or any other official proceeding authorized by law.”
(§ 425.16, subd. (e)(1)-(2).)
When considering whether to strike a claim, courts
undertake a two-prong analysis. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)
Here, Defendants made the challenged statements—that
the Ryckmans were precluded from presenting evidence that they
were “owed or entitled to any rents or profits produced by the
[p]roperty”—in proposed sanctions orders submitted to the trial
court in the partition action. These are plainly statements made
16
in connection with a judicial proceeding and therefore fall within
the ambit of section 425.16, subdivision (e)(1) and (2). (Ibid.; see
ValueRock TN Properties, LLC v. PK II Larwin Square SC LP
(2019) 36 Cal.App.5th 1037, 1046 [“Protected activity thus
includes the filing of lawsuits, and statements and pleadings
made in or in preparation for civil litigation”]; Singh v. Lipworth
(2014) 227 Cal.App.4th 813, 829 [affirming the trial court’s
conclusion that the plaintiffs’ complaint arose from the
defendant’s litigation conduct—alleged fraudulent
representations made to obtain judgments and orders from the
trial court—and thus came within the scope of § 425.16, subd.
(e)(2)].)
Thus, to defeat Defendants’ special motions to strike, the
Ryckmans needed to demonstrate a probability of prevailing on
their complaint in the secondary action by which they sought to
nullify the sanctions orders. The Ryckmans contend the
sanctions orders were “void” because Defendants “forged” the
profits and rents provision. They argue a void judgment is
subject to attack at any time, and can be attacked by way of an
independent action in equity. (Rochin v. Pat Johnson
Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238 [holding an
amended judgment was void and of no effect because the trial
court “had no jurisdiction to so amend the judgment”].)
Although it is true a void judgment can be collaterally
attacked,9 based on the record before us the Ryckmans failed to
demonstrate even minimal merit to their claim that the sanctions
9 “A judgment or order that is not void but ‘merely’
voidable, however, is generally not subject to collateral attack.”
(Schrage v. Schrage (2021) 69 Cal.App.5th 126, 138.)
17
orders were void (or even voidable) as the product of fraud.10 (Cf.
Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 289-290 [holding
the litigation privilege did not bar causes of action for declaratory
relief and cancellation of instrument by which the plaintiffs
sought to have an abstract of judgment declared void for fraud,
but that the trial court should have denied the defendant’s anti-
SLAPP motion because the plaintiffs demonstrated minimal
merit to these claims].) They submitted no evidence in opposition
to the motions to strike that demonstrated their claims had
minimal merit. The record for this appeal does not include the
interrogatories that gave rise to the sanctions orders or a
transcript of the April 28, 2017 hearing. “It is the appellant’s
affirmative duty to show error by an adequate record.” (Osgood
v. Landon (2005) 127 Cal.App.4th 425, 435; see Hotels Nevada,
LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348
[the appellant’s failure to provide adequate record “ ‘requires that
the issue be resolved against [the] appellant’ ”].) Further, the
trial court correctly observed in its October 18, 2019 ruling that
every statement made by a trial court in ruling on an issue does
not always appear in the minutes of the court, which is why the
trial court requested (as is common) that the Drexlers, as
prevailing movants, prepare a proposed order for the court’s
signature.11 There is no evidence that the Drexlers or their
10 The Ryckmans do not claim that, as in Rochin v. Pat
Johnson Manufacturing Co., supra, 67 Cal.App.4th 1228, the
trial court lacked fundamental jurisdiction to act.
11 “It is a matter of trial court procedure whether the court
chooses to make its final decision by the entry in the minutes of
an order without a direction that a written order be prepared,
18
counsel exceeded the stated order of the trial court when they did
so. Indeed, the evidence is to the contrary: when the Ryckmans’
grievance about the scope of the order was called to the attention
of the judicial officer who made the ruling, he denied the
Ryckmans’ request to strike the rents and profits provision from
the order after briefing and argument.12 Thus, the Ryckmans
failed to demonstrate a probability of prevailing on their
“independent action in equity” which sought to undo the
sanctions orders.13
signed and filed, or elects to enter a direction that a formal order
be prepared.” (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304.)
12 Although we hold that the Ryckmans failed to
demonstrate minimal merit to their claim that the sanctions
orders were obtained through extrinsic fraud for purposes of the
anti-SLAPP motion, we express no opinion on the propriety of the
trial court’s evidentiary sanctions orders themselves as that issue
is not before us in this appeal.
13 Defendants’ appellate brief requests that we impose
sanctions for what they term a frivolous appeal. The California
Rules of Court require that any such request instead be made by
way of a separate motion with a supporting declaration. (Cal.
Rules of Court, rule 8.276(a)-(b).) We therefore decline to
consider that request.
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DISPOSITION
The trial court’s judgment is affirmed. Defendants are
awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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