O'Neil-Rosales v. Citibank

Filed 3/7/17
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
PEGGY O’NEIL-ROSALES, ) No. BV 031488
)
Plaintiff and Appellant, ) Central Trial Court
)
v. ) No. 14K10724
)
CITIBANK (SOUTH DAKOTA) N.A. et al., )
)
Defendants and Respondents. ) OPINION
)
APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo,
Judge. Affirmed.
Law Offices of Todd M. Friedman, Todd M. Friedman and Meghan E. George for
Plaintiff and Appellant Peggy O’Neil-Rosales.
Hunt & Henriques and Kurtiss A. Jacobs for Defendants and Respondents Citibank
(South Dakota) N.A. and Hunt & Henriques.
* * *
1
Plaintiff and appellant Peggy O’Neil-Rosales appeals the judgment entered against her
and in favor of defendants and respondents Citibank (South Dakota) N.A. and Hunt &
Henriques. Plaintiff contends the trial court erroneously granted defendants’ special motions to
strike the complaint under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute).1
We affirm the judgment.
BACKGROUND
On August 13, 2014, plaintiff filed a complaint against defendants, asserting causes of
action for violation of the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692
et seq.) and of the Rosenthal Fair Debt Collection Practices Act (RFDCPA) (Civ. Code, § 1788
et seq.).
Plaintiff alleged that, in 2008, Citibank obtained a judgment and lien against plaintiff’s
domestic partner, Eduard Rosales (Rosales); the lien was applied to real property on Lewis
Avenue in Long Beach that, two years earlier, was put in plaintiff’s name only. Plaintiff
learned of the lien and judgment in June 2014 when she sought to refinance her home loan, and
was advised by her mortgage company that the mortgage could not be refinanced until the
judgment and lien were removed or proved invalid. Plaintiff further alleged that, in the year
preceding the filing of her complaint, Citibank retained Hunt & Henriques to “contact
[p]laintiff in an attempt to collect an alleged outstanding debt.” Plaintiff claimed defendants’
conduct violated the FDCPA and RFDCPA in “multiple ways” and sought a declaratory
judgment to that effect, actual damages, statutory damages, costs and reasonable attorney fees.
Defendants both filed special motions to strike plaintiff’s complaint under section
425.16, and plaintiff filed written oppositions in response. The motions were argued and taken
under submission on May 26, 2015, and the court issued its ruling granting the motions on
May 28, 2015. The court laid out the following facts and observations: (1) defendants’
recording of a judgment lien was “the single act” alleged by plaintiff to be a violation of the
FDCPA and the RFDCPA; (2) Citibank retained Hunt & Henriques, a law firm, to sue Rosales
on an unpaid Citibank account he owed; (3) Citibank obtained a judgment against Rosales for
1
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
2
$15,616.76; (4) counsel for Citibank then obtained an abstract of judgment from the court and,
on September 10, 2010, recorded a lien on real property in Los Angeles County which they
believed Rosales had an interest in; (5) the lien identified only Rosales as the judgment debtor,
gave the Lewis Avenue address as his “last known address,” and provided the last four digits of
his Social Security number; and (6) no other collection action was taken against the Lewis
Avenue property, Rosales or plaintiff.
The court first determined that defendants met their burden by providing evidence that
the filing of the lien was connected with litigation against Rosales and that, as such, it was
protected by the litigation privilege. (Civ. Code, § 47, subd. (b).) The court then found
plaintiff failed to demonstrate a reasonable probability of prevailing on her claims under the
FDCPA and the RFDCPA.
Judgment, including attorney fees in the amount of $5,805, was ordered in favor of
defendants on July 15, 2015, and the clerk’s notice of entry of judgment was mailed the same
day. Plaintiff timely appealed.
DISCUSSION
The anti-SLAPP statute was enacted “to provide a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]”
(Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1055-1056.) Under the statute, “[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).)
Application of the anti-SLAPP statute involves a two-step process. First, the moving
party must make a threshold showing that the challenged cause of action arose from protected
speech or petitioning activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) To do so, the
3
activity must fall within the categories of section 425.16, subdivision (e).2 “‘A cause of action
“arising from” [a] defendant’s litigation activity may appropriately be the subject of a
section 425.16 motion to strike.’ [Citations.] ‘Any act’ includes communicative conduct such
as the filing, funding, and prosecution of a civil action. [Citation.]” (Rusheen v. Cohen, supra,
37 Cal.4th at p. 1056.) “‘A claim does not arise from constitutionally protected activity simply
because it is triggered by such activity or is filed after it occurs. [Citation.] Rather, the focus is
on the substance of the lawsuit. ‘[T]he critical point is whether the plaintiff’s cause of action
itself was based on an act in furtherance of the defendant’s right of petition or free speech.
[Citations.]’ [Citation.]” (World Financial Group, Inc. v. HBW Insurance & Financial
Services, Inc. (2009) 172 Cal. App. 4th 1561, 1568-1569 (World Financial).) In determining
whether a defendant has met its burden, the court considers the pleadings, and supporting and
opposing affidavits stating facts upon which the liability or defense is based. (§ 425.16, subd.
(b)(2); City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 79.)
“[I]f the defendant does not demonstrate this initial prong, the court should deny the
anti-SLAPP motion and need not address the second step. [Citation.]” (Baharian-Mehr v.
Smith (2010) 189 Cal. App. 4th 265, 271.) However, if the court finds such a showing has been
made, it then moves to the second prong of the statute to determine whether the nonmoving
party has demonstrated a probability of prevailing on the claim. (Ibid.) “‘Only a cause of
action that satisfies both prongs . . . is a SLAPP, subject to being stricken under the statute.’
[Citation.]” (Id. at pp. 271-272.) “We review the trial court’s ruling on an anti-SLAPP motion
de novo. [Citations.]” (World Financial, supra, 172 Cal.App.4th at p. 1568.)
Plaintiff generally alleged in her complaint that defendants violated various provisions
of the FDCPA and RFDCPA, including but not limited to those barring debt collectors from
2
“‘[A]ct in furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 426.16, subd. (e).)
4
“engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt” (15 U.S.C. § 1692d); falsely representing
“the character, amount, or legal status of any debt” (15 U.S.C. § 1692e(2)(A)); and
“threat[ening] to take any action that cannot legally be taken or that is not intended to be taken”
(15 U.S.C. 1692e(5); see also Civ. Code, § 1788.10, subds. (e), (f) & (j)). However, as further
alleged in the complaint and stated in the declarations filed in support of plaintiff’s oppositions
to defendants’ motions, the factual basis of each alleged violation was the abstract of judgment
that Citibank obtained from the court and recorded as a lien against any real property in the
County of Los Angeles in which Rosales had an interest.
The litigation privilege applies to “postjudgment enforcement activities that are
necessarily related to the allegedly wrongful communicative act.” (Rusheen v. Cohen, supra,
37 Cal.4th at p. 1063; see also Olszewski v. Scripps Health (2003) 30 Cal. 4th 798, 831 [lien
filed to achieve the object of litigation was protected by the litigation privilege, even where the
lien resulted in an unlawful seizure of funds].) More to the point, privileged or not, defendants’
acts of obtaining an abstract of judgment and recording it as a real property lien fell within the
categories of section 425.16, subdivision (e). (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056
[“‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a
civil action”].) Defendants thus met their burden with respect to showing plaintiff’s claim
arose from protected activity,3 and plaintiff was required to show a probability of prevailing on
the merits of her claim.
3
Plaintiff argued below, and continues to argue on appeal, that Rouse v. Law Offices of Rory
Clark (S.D.Cal. 2006) 465 F. Supp. 2d 1031 (Rouse) compels a different result—i.e., that “the recording
of a lien against property based on a default judgment tendered to the County Recorder’s Office is a
ministerial function falling outside the ‘any other official proceeding authorized by law’ contemplated
in Section 425.16(e).” (Id. at p. 1038.) But, while the act by a county recorder of recording a properly
tendered abstract of judgment would appear to be a ministerial function, it is less clear that the act by a
judgment creditor of tendering the abstract to the county recorder’s office could be considered
ministerial. In any case, we are not bound to follow Rouse (see Howard Contracting v. G.A.
MacDonald Const. Co. (1998) 71 Cal. App. 4th 38, 52 [federal decisions neither binding nor controlling
on matters of state law]), but are bound to follow Rusheen v. Cohen, supra, 37 Cal. 4th 1048 (see Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455-456 [decisions of the California
Supreme Court are binding upon and must be followed by all the state courts of California].)
5
“[T]o prevail on an FDCPA claim, a plaintiff must prove that (1) [s]he was the object of
collection activity arising from consumer debt, (2) the defendant is a debt collector within the
meaning of the statute, and (3) the defendant engaged in a prohibited act or omission under the
FDCPA. [Citation.]” (Krasnor v. Spaulding Law Office (D.Mass. 2009) 675 F. Supp. 2d 208,
211 (Krasnor).) Similar facts must be proved to prevail on a claim under the RFDCPA, which
precludes a debt collector from collecting or attempting to collect from a debtor on a consumer
debt in a threatening or harassing manner. (See Civ. Code, §§ 1788.10-1788.12, 1788.14-
1788.16.)
As noted above, the prohibited collection activities allegedly engaged in by defendants
were all factually based on the abstract of judgment obtained from the court and recorded as a
judgment lien in connection with, not litigation against plaintiff, but litigation against Rosales.
As a result, plaintiff cannot allege, much less prove, she was “the object of collection activity
arising from consumer debt” (Krasnor, supra, 675 F.Supp.2d at p. 211)—or, indeed, of any
collection activity engaged in by these defendants. Nor do the declarations of plaintiff and
Rosales filed in support of plaintiff’s oppositions to defendants’ motions attest to any other
collection activities undertaken by defendants, whether against plaintiff, Rosales or plaintiff’s
property.
A judgment lien on real property is created under a money judgment by recording an
abstract of the judgment in the office of the county recorder of the county where the real
property is located. (§ 697.310, subd. (a).) In California, mere entry of judgment does not
create a real property lien. (Behniwal v. Mix (2007) 147 Cal. App. 4th 621, 635.) A judgment
lien on real property is a general lien, attaching to practically all of the judgment debtor’s real
property interests where an abstract of judgment is recorded. (§ 697.340, subd. (a) [“A
judgment lien on real property attaches to all interests in real property in the county where the
lien is created (whether present or future, vested or contingent, legal or equitable) that are
subject to enforcement of the money judgment against the judgment debtor pursuant to
Article 1 (commencing with Section 695.010) of Chapter 1 at the time the lien was
created, . . .”]; Livingston v. Rice (1955) 131 Cal. App. 2d 1, 3-4.) The lien is created even
though the particular real property interests are not described, and regardless of whether the
6
judgment creditor even knows they exist. Further, the lien attaches not only to real property
interests presently held by the judgment debtor, but to those acquired in the future, thus
assuring the judgment creditor priority as to after-acquired interests. (§ 697.340, subd. (b).)
The abstract of judgment in the instant matter, which Citibank recorded in Los Angeles
County on September 10, 2008, did not show plaintiff as a judgment debtor, and it was the last
four digits of Rosales’s social security number, not plaintiff’s, that were specified. The abstract
clearly applied to Rosales, not plaintiff. Thus, it did not create a lien against the Lewis Avenue
property unless Rosales had a real property interest in the property. (See § 697.340, subd. (a);
Kinney v. Vallentyne (1975) 15 Cal. 3d 475, 478-479; Grothe v. Cortlandt Corp. (1992) 11
Cal. App. 4th 1313, 1320.) Assuming plaintiff was correct and Rosales had no real property
interest in the Lewis Avenue property, Citibank’s recording of the abstract did not create a real
property lien against the Lewis Avenue property, and the alleged factual basis of plaintiff’s
claim is utterly negated.
To the extent the abstract appeared to create a lien against plaintiff’s real property,4 her
remedy was not to file a lawsuit under the FDCPA and the RFDCPA against defendants, who
in any case did not violate either statutory scheme. Plaintiff could have, for example, filed a
motion to correct the abstract and/or deliver a recordable document releasing the erroneous
judgment lien (§ 697.410). In any event, plaintiff cannot and did not show she could prevail in
her action.5
4
There was a fair amount of discussion at the motion to strike hearing regarding the fact the
Lewis Avenue address appeared in two places on the recorded abstract of judgment—i.e., as Rosales’s
“last known address” and as the address where Rosales was served the summons. The abstract of
judgment form is a mandatory Judicial Council form (Judicial Council Forms, form EJ-001) and, as
such, solicits the entry of various required pieces of information, including these two addresses.
Neither entry—nor any other entry on the form—purports to identify the location of real property in
which the judgment debtor has, or may have, a real property interest.
5
We note, but do not reach, the argument of Hunt & Henriques that, because they are a law firm,
plaintiff’s RFDCPA claim fails as a matter of law as to them because attorneys are not “debt collectors”
under the RFDCPA. (See Civ. Code, § 1788.2, subd. (c) [“The term ‘debt collector’ means any person
who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in
debt collection. The term . . . does not include an attorney or counselor at law”]; see also Carney v.
Rotkin (1988) 206 Cal. App. 3d 1513, 1526; Owings v. Hunt & Henriques (S.D.Cal. 2010) 2010 U.S.
Dist. LEXIS 91819, *7 [rejecting the plaintiff’s argument that the RFDCPA excludes attorneys but not
law firms].)
7
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants.
_________________________
C. Lee, J.*
We concur.
_________________________ _________________________
Ricciardulli, Acting P. J. B. Johnson, J.
*Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
8