Gettel v. Paetkau CA6

Filed 9/10/21 Gettel v. Paetkau CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
STEPHEN W. GETTEL, H047552
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. 18CV02355)
v.
TYLER M. PAETKAU,
Defendant and Respondent.
STEPHEN W. GETTEL, H047553
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. 18CV02356)
v.
JOHN M. SAICH et al.,
Defendants and Respondents.
Respondents John M. Saich and his daughter Nichole L. Saich (hereafter the
Saiches), represented by Attorney Tyler M. Paetkau (also a respondent here and, with the
Saiches, collectively respondents), filed suit against appellant Stephen W. Gettel in Santa
Clara County Superior Court. Gettel in turn filed suit in Santa Cruz County Superior
Court against the Saiches for abuse of process and petitioned the Santa Cruz County
Superior Court for permission to file a cause of action against Paetkau for attorney client
civil conspiracy. Respondents responded to the Santa Cruz County Superior Court
actions with anti-SLAPP motions,1 which the trial court granted in separate orders.
Gettel appeals both anti-SLAPP orders. For the reasons explained below, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
A. Factual Background and the Santa Clara County Lawsuit
In 2017, the Saiches, represented by Attorney Paetkau, filed suit against appellant
Gettel in Santa Clara County Superior Court, case No. 17CV314350 (Santa Clara County
lawsuit). The Saiches alleged Gettel breached oral agreements and committed various
torts related to business and financial dealings they had with him and sought damages and
injunctive relief.
Regarding venue, the Saiches’ complaint described all parties as residents of Santa
Cruz County but asserted that venue in Santa Clara County was proper because “the
Parties’ oral agreement required performance in this County and a substantial number of
Defendants’ wrongful acts, omissions, and failures to perform occurred in this County.”2
B. Santa Cruz County Superior Court Lawsuits
During the pendency of the Santa Clara County lawsuit, Gettel initiated in Santa
Cruz County Superior Court two lawsuits, one against Paetkau3 (Santa Cruz County
Superior Court case No. 18CV02355) and one against the Saiches (Santa Cruz County
Superior Court case No. 18CV02356).
1
“An anti-SLAPP motion seeks to strike a ‘[s]trategic lawsuit against public
participation,’ that is, a ‘SLAPP.’ ” (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 882, fn. 2.)
2
These appeals involve rulings made by the Santa Cruz County Superior Court
under the anti-SLAPP statute. As we conclude, the procedural events in the Santa Clara
County lawsuit are immaterial to our analysis of Gettel’s claims on appeal, we do not
provide further detail on them here.
3
The petition also named one of Paetkau’s associates. During the trial court
proceedings, Gettel voluntarily dismissed the associate, and she is not a party in these
appeals.
2
In his lawsuit against the Saiches, appellant filed a complaint alleging a single
cause of action for abuse of process. The operative amended complaint, titled “Verified
First Amended Complaint for Monetary Damages for Abuse of Process” (complaint),
alleged the Saiches improperly filed the Santa Clara County lawsuit in the wrong venue.
The complaint asserted the Saiches filed the Santa Clara County lawsuit “for the ulterior
purpose of increasing the legal defense costs of [appellant] by requiring his Santa Cruz
County attorney to travel to Santa Clara County in order to litigate [the Santa Clara
County lawsuit], plus whatever ‘home court advantage’ might be had by the utilization of
Santa Clara County-based counsel of [the Saiches], such as greater familiarity with the
judges of Santa Clara County and of the local practices of Santa Clara County.” Gettel
sought damages against the Saiches, including punitive damages.
As to Paetkau, Gettel submitted a verified petition under Code of Civil Procedure
section 1714.104 (petition) to the Santa Cruz County Superior Court requesting to file an
amended complaint alleging that Paetkau conspired with his clients, the Saiches, to
commit abuse of process by bringing the Santa Clara County lawsuit in the wrong venue.
According to the petition, Santa Clara County was an improper venue for the Saiches’
lawsuit, and the Saiches, along with Paetkau, maliciously filed the lawsuit to burden
appellant and his Santa Cruz County-based counsel. The petition further alleged that
Paetkau had written a pre-lawsuit demand letter (sent a few days before the complaint
was filed in the Santa Clara County lawsuit) that requested Gettel deliver certain papers
and property to Paetkau’s office in Santa Clara County, and that this demand was a
“sham device to pretend venue lay in Santa Clara County.”
Gettel did not serve his petition against Paetkau. According to a case management
statement filed by Gettel in April 2019, Gettel had not served Paetkau because the
Saiches in the “related” case were “likely to demur to First Amended Complaint” and
4
Unspecified statutory references are to the Code of Civil Procedure.
3
“Paetkau’s liability may be dependent upon ability of Plaintiff to state cause of action
against [the Saiches] in related Santa Cruz case.” He further stated “Petitioner believes
Respondent Paetkau should [b]e spared litigation unless and until Plaintiff prevails on
demurrer against Defendant in related Santa Cruz case. Respondent Paetkau is aware of
existence of Petition and thus is not prejudiced from preserving any evidence by delay in
service.”
According to a declaration submitted by Paetkau in the Santa Cruz County
Superior Court proceeding, Paetkau’s “office learned of the filing of the Complaint and
petition in October 2018, when [Gettel’s counsel] served our office with an ‘ex parte
application to accomplish filing of petition.’ ” In response to the petition, Paetkau
retained his own counsel who appeared on his behalf, including at two case management
hearings in Santa Cruz County Superior Court, and filed an anti-SLAPP motion on his
behalf. Gettel never effected service on Paetkau prior to the anti-SLAPP rulings at issue
here.
C. Anti-SLAPP Motions
In response to Gettel’s actions in Santa Cruz County Superior Court, Paetkau and
the Saiches separately filed anti-SLAPP motions. (§ 425.16, subd. (b)(1).)
1. The Saiches’ Anti-SLAPP Motion and Related Submissions
The Saiches filed an anti-SLAPP motion in June 2019. The motion contended that
the complaint’s single cause of action for abuse of process arose from protected activity
and that Gettel could not prevail on that cause of action because the litigation privilege
(Civil Code §section 47, subdivision (b)) barred his claim. Their anti-SLAPP motion was
accompanied by the declaration of respondent Paetkau. Paetkau stated he was counsel of
record for the Saiches in the Santa Clara County lawsuit and described various events in
that lawsuit as well as the instant Santa Cruz County Superior Court case. His
declaration attached various court documents from the Santa Clara County lawsuit and
correspondence.
4
In response to the Saiches’ anti-SLAPP motion, Gettel filed an opposition and also
submitted a declaration from his counsel, Kathleen Wells. Gettel did not submit his own
declaration. Gettel’s memorandum of points and authorities supporting his opposition
raised various claims, including that the Santa Clara County Superior Court—rather than
the Santa Cruz County Superior Court—had “primary jurisdiction to determine the issue
of venue” and therefore the Santa Cruz County Superior Court should “dismiss the anti-
SLAPP motion as an abatement” to allow the Santa Clara County Superior Court to
address the issue of venue.
2. Paetkau’s Anti-SLAPP Motion and Related Submissions
Paetkau filed his own anti-SLAPP motion in August 2019. The motion was
accompanied by the declaration of his counsel, Maureen Harrington, which attached
court documents, including the complaint filed in the Santa Clara County lawsuit.
Paetkau also submitted his own declaration in support of his anti-SLAPP motion that
noted “[n]o service has been effected upon me for any actions filed by [appellant] in
Santa Cruz County Superior Court.” The motion likewise noted the lack of service on
Paetkau.
In response to Paetkau’s anti-SLAPP motion, Gettel filed a two-page written
opposition. His opposition purported to “incorporate[] by reference” his arguments
submitted in his written opposition to the Saiches’ anti-SLAPP motion. Additionally,
Gettel argued that the anti-SLAPP statute did not apply to special proceedings generally
or, in the alternative, to the specific special proceeding against Paetkau. Gettel submitted
a declaration from his counsel, Wells. Wells’s declaration described events in the Santa
Clara County lawsuit and attached various documents including letters from herself to
Paetkau regarding the pending Santa Clara County lawsuit. Gettel did not submit a
declaration.
5
D. Trial Court’s Orders Granting Anti-SLAPP Motions
On September 17, 2019, the trial court held a combined hearing on Paetkau’s and
the Saiches’ anti-SLAPP motions. The trial court issued separate written orders granting
each motion.
Regarding Paetkau’s anti-SLAPP motion, the trial court found Paetkau satisfied
his threshold burden under the anti-SLAPP statute of demonstrating that Gettel’s “cause
of action is one arising from a protected activity” because the challenged activity was the
filing of the Santa Clara County lawsuit that was constitutionally protected activity under
section 425.16, subdivision (e)(1). Turning to the second step of the anti-SLAPP
analysis, the trial court found that Gettel could not meet his burden to show that the
challenged claim was legally sufficient and factually substantiated, because Paetkau’s act
of filing the complaint was privileged under Civil Code section 47, subdivision (b). The
trial court also expressly addressed what it referred to as “[Gettel’s] argument that this
Court lacks jurisdiction to make the determination because the issue of venue is still
before the Santa Clara County Superior Court.” The trial court found it had jurisdiction
given that Gettel had failed to challenge venue in Santa Clara County Superior Court and
also had removed from the Santa Clara County Superior Court’s calendar his motion to
quash service of the summons and complaint and therefore had “waived any objection to
venue.”
The trial court reached similar conclusions with respect to the Saiches’ anti-
SLAPP motion. The court found it had jurisdiction over the motion, that the Saiches
satisfied their initial burden under the anti-SLAPP statute of demonstrating that
appellant’s claim arose out of protected activity under section 425.16, subdivision (e)(1),
and Gettel could not show a probability of success on the merits of the litigation because
his claim was barred by the litigation privilege.
Gettel separately appealed the trial court’s orders granting the Saiches’ and
Paetkau’s anti-SLAPP motions. (§ 425.16, subd. (i); Cal. Rules of Court, rule
6
8.104(a)(1)(A); Reyes v. Kruger (2020) 55 Cal.App.5th 58, 68.) On its own motion, this
court ordered that both appeals be considered together for purposes of oral argument and
disposition.
II. DISCUSSION
In his appeal pertaining to the Saiches (H047553), Gettel contends the trial court
erred under the anti-SLAPP statute because the Saiches failed to establish his lawsuit
against them was a SLAPP. In his appeal of the order granting Paetkau’s motion
(H047552), Gettel raises similar claims of trial court error and further asserts the “special
proceeding” he brought against attorney Paetkau fell outside the scope of the anti-SLAPP
statute.
A. Anti-SLAPP Statute
Section 425.16, “commonly known as the anti-SLAPP statute, allows defendants
to request early judicial screening of legal claims targeting free speech or petitioning
activities.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880–881
(Wilson).) The anti-SLAPP statute provides a “procedural remedy to dispose of lawsuits
that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1055–1056 (Rusheen).) The anti-SLAPP statute “was designed
to . . . provide a ‘quick and inexpensive method for unmasking and dismissing’
unmeritorious cases.” (Oakland Bulk and Oversized Terminal, LLC v. City of Oakland
(2020) 54 Cal.App.5th 738, 764, italics omitted.) The anti-SLAPP statute “shall be
construed broadly.” (§ 425.16, subd. (a).)
Courts evaluate an anti-SLAPP motion in two steps. (Wilson, supra, 7 Cal.5th at
p. 884.) In the first step, the court examines whether the moving defendant has
established “ ‘that the challenged allegations or claims “aris[e] from” protected activity in
which the defendant has engaged.’ ” (Ibid.) The defendant’s burden in the first step
involves making “two related showings. Comparing its statements and conduct against
the statute, it must demonstrate activity qualifying for protection. (See § 425.16,
7
subd. (e).) And comparing that protected activity against the complaint, it must also
demonstrate that the activity supplies one or more elements of a plaintiff’s claims.” (Id.
at p. 887; Laker v. Board of Trustees of California State University (2019) 32
Cal.App.5th 745, 760 (Laker).) “At this stage, the question is only whether a defendant
has made out a prima facie case that activity underlying a plaintiff’s claims is statutorily
protected [citations.], not whether it has shown its acts are ultimately lawful.” (Wilson, at
p. 888.)
Section 425.16, subdivision (e), sets forth four categories of protected activity:
“(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,
subd. (e).) The moving defendant “ ‘need not prove that the challenged conduct is
protected by the First Amendment as a matter of law; only a prima facie showing is
required.’ ” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809,
822.) Additionally, a claim arises from protected activity when that activity underlies or
forms the basis for the claim. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1062.)
If the moving party makes its threshold showing under step one of the anti-SLAPP
analysis, in the second step the burden shifts to the plaintiff to demonstrate the merit of
the challenged cause of action by establishing a probability of success.
(§ 425.16, subd. (b)(1); Wilson, supra, 7 Cal.5th at p. 884.) “If the plaintiff is unable to
demonstrate that his or her claim has at least minimal merit, then the trial court should
8
deem the cause of action a SLAPP and should strike it.” (Laker, supra, 32 Cal.App.5th at
p. 760.)
We review de novo the trial court’s orders granting the anti-SLAPP motions.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
B. Order Granting Saiches’ Anti-SLAPP Motion
Gettel principally raises two claims in his challenge to the trial court’s order
granting the Saiches’ anti-SLAPP motion. He asserts that the trial court erred in
determining (1) that the underlying activity at issue in Gettel’s complaint arose from the
Saiches’ protected activity, and (2) that Gettel did not meet his burden of establishing a
probability of prevailing on his abuse of process claim, including by failing to abate the
Santa Cruz County Superior Court proceeding until the Santa Clara County Superior
Court determined the issue of venue.
1. Gettel’s Factual Allegations
Gettel’s abuse of process cause of action centers around the Saiches’ filing of the
complaint in the 2017 Santa Clara County lawsuit against him. Several paragraphs of
Gettel’s complaint alleging abuse of process quote from and discuss passages from the
Saiches’ 2017 complaint. Broadly stated, Gettel alleges that the proper venue for the
underlying business dispute was not Santa Clara County but Santa Cruz County, where
all parties resided.
Gettel further alleges in his abuse of process complaint that the Saiches knew that
Gettel relied on an attorney located in Santa Cruz County. The pleading alleges that the
Saiches filed the Santa Clara County lawsuit “for the ulterior purpose of increasing the
legal defense costs of [Gettel] by requiring his Santa Cruz County attorney to travel to
Santa Clara County in order to litigate [the Santa Clara lawsuit], plus whatever ‘home
court advantage’ might be had by the utilization of Santa Clara County-based counsel of
[the Saiches], such as greater familiarity with the judges of Santa Clara County and of the
local practices of Santa Clara County.”
9
We now turn to the application of the anti-SLAPP statute to Gettel’s complaint.
2. Arising Under Protected Activity
We first examine whether the Saiches in their anti-SLAPP motion made out “a
prima facie case that activity underlying a plaintiff’s claims is statutorily protected.”
(Wilson, supra, 7 Cal.5th at p. 888.) The trial court concluded that the Saiches’ filing of a
lawsuit against Gettel in Santa Clara County Superior Court was protected under section
425.16, subdivision (e)(1) (hereafter section 425.16(e)(1)). Based on our independent
review, we agree.
Section 425.16(e)(1) describes as protected activity “any written or oral statement
or writing made before a . . . judicial proceeding.” (§ 425.16(e)(1).) The California
Supreme Court has held that this language is not limited to “an ‘issue of public
interest.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1123 (Briggs).) The court stated that “[c]onstruing clauses (1) and (2) of section 425.16,
subdivision (e) as lacking such a requirement does not diminish their effectiveness in
encouraging participation in public affairs. Any matter pending before an official
proceeding possesses some measure of ‘public significance’ owing solely to the public
nature of the proceeding, and free discussion of such matters furthers effective exercise of
the petition rights section 425.16 was intended to protect.” (Id. at p. 1118.)
“ ‘ “[T]he constitutional right to petition . . . includes the basic act of filing
litigation or otherwise seeking administrative action.” ’ ” (Briggs, supra, 19 Cal.4th at
p. 1115.)
The California Supreme Court has continued to reaffirm the fundamental principle
that filing a lawsuit is protected First Amendment activity under the anti-SLAPP statute.
(Wilson, supra, 7 Cal.5th at p. 888; accord Bonni v. St. Joseph Health System (2021)
11Cal.5th 995, 1024 (Bonni).) In Wilson, the court summarized its prior decision of
Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 739–740, which rejected a
claim that the anti-SLAPP statute did not apply to a malicious prosecution action, stating
10
“that the claim arose from the filing of a lawsuit, protected First Amendment activity,
was alone dipositive; allegations that the suit was filed without probable cause—or, for
that matter, based on a malicious motive—were irrelevant at the first step, and mattered
only at the second step.” (Wilson, at p. 888.)
Gettel contends on appeal that the filing of the Santa Clara County lawsuit was not
protected activity under the anti-SLAPP statute. Specifically, Gettel asserts that, though
the Saiches’ “averment” in their complaint in the Santa Clara County Superior Court that
venue was proper is protected, their “activity of filing their lawsuit against [Gettel] in a
court of assertedly wrong venue” is not protected. Gettel offers no pertinent authority for
this claim, and we conclude it lacks merit.
For purposes of step one of the anti-SLAPP statute, the propriety of the Saiches’
conduct is irrelevant. “[A]ny ‘claimed illegitimacy of the defendant’s acts is an issue
which the plaintiff must raise and support in the context of the discharge of the plaintiff’s
[secondary] burden to provide a prima facie showing of the merits of the plaintiff’s
case.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94 (Navellier).) Gettel concedes that
the “gist” of his action against the Saiches is that they filed the Santa Clara County
lawsuit for an improper purpose. Accordingly, the Saiches met their threshold burden of
demonstrating that Gettel’s complaint in Santa Cruz County superior court targeted
activity protected by the anti-SLAPP statute.5
Turning to the “ ‘arising from’ test” that forms part of the first step of the anti-
SLAPP analysis (Laker, supra, 32 Cal.App.5th at p. 766), we decide that the Saiches’
5
We do not reach Gettel’s contention that the Saiches failed to meet their burden
of showing their conduct was protected under section 425.16, subdivision (e)(4). The
fourth clause of section 425.16, subdivision (e), is commonly referred to as the “catchall
provision.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144.) We need
not analyze that clause here given that we conclude section 425.16, subdivision (e)(1)
applies. (See Navellier, supra, 29 Cal.4th at p. 88 [“ ‘A defendant meets this burden by
demonstrating that the act underlying the plaintiff’s cause fits one of the categories
spelled out in section 425.16, subdivision (e).’ ”].)
11
litigation-related activity also satisfies this test. “To succeed in an action for abuse of
process, a litigant must establish that the defendant (1) contemplated an ulterior motive in
using the process, and (2) committed a willful act in the use of the process not proper in
the regular conduct of the proceedings.” (Rusheen, supra, 37 Cal.4th at p. 1057.) Here,
the petitioning activity itself (i.e., the Saiches’ filing of a complaint against Gettel in
Santa Clara County Superior Court) is the alleged wrongdoing targeted by Gettel’s suit
against the Saiches. (See Wilson, supra, 7 Cal.5th at p. 890; accord, Bonni, supra, 11
Cal.5th at p. 1024 [stating “claims that arise out of the filing of a suit arise from protected
activity for purposes of the anti-SLAPP statute”].)
Based on our independent review, it is clear that, but for the Saiches’ lawsuit in
Santa Clara County, Gettel’s claim for abuse of process would have no basis. (See
Navellier, supra, 29 Cal.4th at p. 90.) “This action therefore falls squarely within the
ambit of the anti-SLAPP statute’s ‘arising from’ prong.” (Ibid.)
For these reasons, we decide that the Saiches met their prima facie burden
demanded by the first step of the anti-SLAPP statute, and the burden therefore shifted to
Gettel to demonstrate the merit of his abuse of process claim by establishing a probability
of success. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
3. Probability of Success on the Merits
“In the second step of the anti-SLAPP analysis, ‘the burden shifts to the plaintiff
to demonstrate that each challenged claim based on protected activity is legally sufficient
and factually substantiated. The court, without resolving evidentiary conflicts, must
determine whether the plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Laker, supra,
32 Cal.App.5th at p. 768.) Furthermore, if the challenged action falls within the litigation
privilege, the trial court must grant an anti-SLAPP motion. (See Rusheen, supra, 37
Cal.4th at p. 1065.) In the anti-SLAPP context, the litigation privilege presents “a
substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”
12
(Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) “While the defendants bear the burden of
proof on any affirmative defense, [plaintiff] retains the burden to show, under the second
step of the anti-SLAPP analysis, that he has a probability of prevailing on the merits of
the claim.” (Laker, at p. 769.)
The Saiches contend that Gettel failed to carry his burden of showing a probability
of success because his abuse of process claim is based on activity that is absolutely
privileged under Civil Code section 47, subdivision (b). We agree.
Civil Code section 47, subdivision (b) codifies the litigation privilege and provides
in part that “ ‘[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial
proceeding.’ ” (Rusheen, supra, 37 Cal.4th at p. 1057.) “The privilege is a matter of
substantive law [citation] and, when applicable, is ‘absolute,’ because it applies
regardless of the communicator’s ‘motives, morals, ethics or intent.’ ” (Mireskandari v.
Gallagher (2020) 59 Cal.App.5th 346, 366.) “ ‘ “The usual formulation is that the
privilege applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that have some connection or logical relation to the
action.” ’ ” (Id. at pp. 365–366.)
In Rusheen, the California Supreme Court decided that an abuse of process cause
of action was centered on the privileged, communicative activity of using allegedly
perjured declarations of service to procure a judgment. (Rusheen, supra, 37 Cal.4th at
p. 1062.) The court concluded, reversing the appellate court’s ruling, that the trial court
properly granted an anti-SLAPP motion because it “correctly found that there was no
reasonable probability [plaintiff’s] abuse of process claim would prevail on the ground
[defendant’s] allegedly wrongful conduct was privileged (Civ. Code § 47, subd. (b)).”
(Id. at p. 1065.)
Gettel’s complaint alleging abuse of process likewise centers on privileged
conduct: the Saiches’ filing of the Santa Clara County lawsuit. Pleadings and process in
13
a case are privileged under the litigation privilege. (Rusheen, supra, 37 Cal.4th at
p. 1058.) Indeed, Gettel does not dispute that the litigation privilege applies to the
underlying conduct at the heart of his abuse of process claim.6 We decide that Gettel has
not established a probability of success on the merits because the absolute privilege of
Civil Code section 47, subdivision (b) protects the activity that underlies his complaint
alleging abuse of process. Therefore, the trial court properly granted the Saiches’ motion
to strike Gettel’s complaint under section 425.16.
4. Abatement
In his discussion of the second step of the anti-SLAPP analysis, Gettel argues that
he was foreclosed from meeting his burden to show his abuse of process claim had merit
(i.e., that venue in Santa Clara County was improper) because the issue of venue was for
the Santa Clara County Superior Court to determine, and “the abatement doctrine”
prevented him from presenting his contention to the Santa Cruz County Superior Court.
Gettel asserts he was put “in a Catch-22” when he was “required to make a showing he
was disallowed from making.” The Saiches respond, first, that Gettel forfeited this claim
by failing to adequately brief the abatement claim on appeal, and, second, that the claim
fails on its merits because venue was legally proper in the Santa Clara County Superior
Court. We agree with the former argument and therefore need not reach the latter.7
6
Appellant cites to the California Supreme Court’s decision in Barquis v.
Merchants Collection Assn. (1972) 7 Cal.3d 94, which upheld an abuse of process action
against a collection agency for its alleged practice of filing actions in multiple improper
venues. However, that decision does not assist appellant here, including because — as
noted by the California Supreme Court decades later in its own analysis of Barquis—
Barquis did not address the application of the litigation privilege. (Rusheen, supra, 37
Cal.4th at p. 1059.)
7
On January 26, 2021, the Saiches filed a request for judicial notice of six orders
entered by the Santa Clara County Superior Court including an entry of default filed in
January 2019 by the Saiches against appellant and an order issued in September 2020
denying appellant’s motion to set aside or vacate the entry of default. Appellant filed an
opposition as to three of the items. Because the six orders issued in the Santa Clara
14
“ ‘ “When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as [forfeited].” ’ ” (Lee v.
Kim (2019) 41 Cal.App.5th 705, 721 (Lee v. Kim).) In his briefing in this court, Gettel
fails to cite to any legal authority that supports reversal of the order here on the grounds
of what he refers to as the “abatement doctrine.” Therefore, his contention is “forfeited
on appeal.” (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 855.)
Even if we were to consider his unsupported argument, it does not compel a
reversal of the Santa Cruz County Superior Court’s anti-SLAPP order. “[I]t is a
fundamental principle of appellate procedure that a trial court judgment is ordinarily
presumed to be correct and the burden is on an appellant to demonstrate, on the basis of
the record presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
As the Saiches observe, the alleged “Catch-22” was of Gettel’s own making, because he
decided to initiate the proceedings in Santa Cruz County Superior Court. Under the
circumstances, we decide that Gettel has failed to establish any legal error by the trial
court in not abating the Santa Cruz County proceeding.
For these reasons, we affirm the trial court’s September 17, 2019 order granting
the Saiches’ anti-SLAPP motion.
County lawsuit are immaterial to our analysis here, we deny the Saiches’ request for
judicial notice. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4 (Doe).)
Additionally, on March 8, 2021, appellant filed an unopposed request for judicial
notice of 17 documents, two “facts of general knowledge” related to dates in the Santa
Clara County lawsuit, and “one fact within the special knowledge of this Court” related
to a separate appeal of a subsequent judgment (H048664). His request notes the
documents are immaterial to the issues here but are “interposed defensively” to correct
what he asserts are false statements made by respondents. Because we agree the
documents are immaterial to our analysis here, we deny the request for judicial notice.
(See Doe, supra, 42 Cal.4th at p. 544, fn. 4.)
15
C. Order Granting Paetkau’s Anti-SLAPP Motion
Gettel separately appeals the trial court’s order granting Paetkau’s anti-SLAPP
motion. As he did in his appeal of the trial court’s order granting the Saiches’ anti-
SLAPP motion, Gettel contends the trial court erred in finding Paetkau met his burden of
showing protected conduct under section 425.16, subdivision (e) and in ruling on the
anti-SLAPP motion while the Santa Cruz County litigation was “subject to abatement”
because the question of venue was pending in the Santa Clara County lawsuit. Gettel
raises two additional claims specific to Paetkau: (1) the anti-SLAPP statute does not
apply to Gettel’s special proceeding against Paetkau, and (2) the trial court should not
have ruled on Paetkau’s anti-SLAPP motion because Paetkau, although he was aware of
the proceeding against him, had “not yet been served with process” in the Santa Cruz
County litigation. We address these latter assertions first.
1. Application of the Anti-SLAPP Statute to Special Proceedings
Gettel asserts the trial court erred in granting the anti-SLAPP motion because his
petition against Paetkau under Civil Code section 1714.10 falls outside the scope of anti-
SLAPP law. Gettel contends that the anti-SLAPP statute does not apply to any special
proceedings, including those under Civil Code section 1714.10.8
“[Civil Code] [s]ection 1714.10 prohibits the unauthorized filing of an action for
nonexempt civil conspiracy against an attorney based on conduct arising from the
representation of a client that is in connection with any attempt to contest or compromise
a claim or dispute. It requires a plaintiff who desires to pursue such an action to first
8
Under a separate heading in his opening brief, appellant identifies an issue he
describes as: “Alternatively, anti-SLAPP motion does not apply to special proceeding in
which application is made to Superior Court for leave to add person in statutorily
protected class requiring judicial determination prior to naming such person as party
defendant in related action.” In his reply brief, appellant concedes his argument lacks
merit under Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805 (Sandlin), a case we
discuss further, post. We accept that concession and therefore do not consider that
argument further.
16
commence a special proceeding by filing a verified petition naming the attorney as
respondent; the trial court then orders service upon the attorney, who is thereby given the
opportunity to appear and contest the petition. If the petition is granted, the plaintiff is
permitted to file the complaint in the main action, subject to the attorney’s right to appeal
the order.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131
Cal.App.4th 802, 815.) We agree with Gettel that a proceeding under Civil Code section
1714.10 is a special proceeding. (Civ. Code, § 1714.10, subd. (d).) We independently
analyze whether a special proceeding is subject to the anti-SLAPP statute. “The proper
interpretation of a statute and the application of the statute to undisputed facts are
questions of law.” (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th
1139, 1149.)
The anti-SLAPP statute does not contain any provision exempting special
proceedings from its purview. The Legislature expressly declared in the statute’s
preamble that it applies to “lawsuits” and the statute “shall be construed broadly” in light
of its goals. (§ 425.16, subd. (a).) Furthermore, subdivision (h) of section 425.16 states
that “[f]or purposes of this section, ‘complaint’ includes ‘cross-complaint’ and ‘petition,’
‘plaintiff’ includes ‘cross-complainant’ and ‘petitioner,’ and ‘defendant’ includes ‘cross-
defendant’ and ‘respondent.’ ” (Italics added.) This language supports application of the
statute to petitions in special proceedings.
Sandlin, supra, 50 Cal.App.5th at pages 821–822 is instructive. In Sandlin, the
Fourth District Court of Appeal, Division 3, rejected a claim that the anti-SLAPP statute
should not apply to statutorily-expedited writs because the pertinent proceeding under
Elections Code section 13313 already provided for an expedited determination and thus
there was no reason for an early merits determination under the anti-SLAPP statute.
(Sandlin, at pp. 821–822.) In rejecting the appellant’s argument to the contrary, the court
observed, “[i]f the Legislature had wanted to exclude expedited writ litigation from the
anti-SLAPP statute, it would have said so. We decline the invitation to create an
17
exception that does not appear in the statute.” (Id. at p. 822.) Courts have consistently
applied the anti-SLAPP statute to special proceedings (see, e.g., Panakosta Partners, LP
v. Hammer Lane Management, LLC (2011) 199 Cal.App.4th 612, 635 [rejecting claim
that anti-SLAPP does not apply to “ ‘special proceedings’ ” such as a petition for buyout
but concluding the trial court erred on other grounds]), and Gettel has cited no cases
holding that the anti-SLAPP statute does not extend to them.
Although Gettel discusses at length the California Supreme Court’s decision in
Baral, that case did not address whether special proceedings are covered by the anti-
SLAPP statute. The court in Baral did reject, however, a formalistic and unduly
restrictive reading of the anti-SLAPP statute, like that which Gettel advances here. As
the court stated in Baral “When the Legislature declared that a ‘cause of action’ arising
from activity furthering the rights of petition or free speech may be stricken unless the
plaintiff establishes a probability of prevailing, it had in mind allegations of protected
activity that are asserted as grounds for relief. The targeted claim must amount to a
‘cause of action’ in the sense that it is alleged to justify a remedy. . . . Neither the form of
the complaint nor the primary right at stake is determinative.” (Baral, supra, 1 Cal.5th at
p. 395.)
We agree with the observation in Sandlin that if the Legislature intended to
exclude special proceedings from the anti-SLAPP statute, “it would have said so.”
(Sandlin, supra, 50 Cal.App.5th at p. 822.) Given the express mandate in the anti-SLAPP
statute’s preamble that it be applied broadly and that special proceedings are not
explicitly excluded from the statute, we decline Gettel’s invitation to read the statute as
implicitly exempting special proceedings.9
9
Appellant appears to argue the Legislature’s use of the word “action” in the anti-
SLAPP statute rather than “special proceeding” reflects a legislative intent to exclude
special proceedings. We decline to rule as a matter of law that the Legislature intended
to restrict the statute by the use of that particular word. Appellant does not cite to any
18
We likewise reject Gettel’s arguments that the particular “circumstances” of the
special proceeding mandate that the anti-SLAPP statute should not apply as a matter of
law. Gettel contends, for instance, that “[t]he only reason the [Civil Code section]
1714.10 special proceeding was even filed was to preserve the statute of limitations”
because Gettel anticipated the Saiches would bring a demurrer. Gettel’s arguments have
no basis in the anti-SLAPP statute, and we decline his invitation to create any such
exception.
For these reasons, we decide that the anti-SLAPP statute applies to Gettel’s
petition against Paetkau.
2. Filing of Anti-SLAPP Motion Prior to Service of Process
Alternatively, Gettel contends that the anti-SLAPP statute does not apply to his
petition because Gettel did not serve Paetkau with process and, as a matter of statutory
construction, there was no lawsuit “against” Paetkau (§ 425.16, subd.(b)(1)). Gettel
asserts that “an anti-SLAPP motion can be filed against a plaintiff or petitioner only after
the defendant or respondent has [been] served with process in the action.” (Bolding
omitted.) Paetkau responds that (1) Gettel forfeited this argument by failing to raise it in
the trial court and (2) it lacks merit. We agree on both counts.
A party’s failure to object to a purported error in the superior court results in a
forfeiture of that claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293,
fn. 2.) “[A]ny other rule would permit a party to trifle with the courts by standing silently
by, thus permitting the proceedings to reach a conclusion in which the party could
acquiesce if favorable and avoid if unfavorable.” (In re Urayna L. (1999) 75 Cal.App.4th
883, 886.)
We agree with Paetkau that Gettel forfeited this argument by failing to raise it in
the trial court. In the context of the anti-SLAPP motion at issue, Paetkau—not Gettel—
case law supporting that construction of the anti-SLAPP statute, or even general
principles of statutory construction that would compel it.
19
pointed out that he had not been served and asserted that Gettel had engaged in “dilatancy
and a general lack of professionalism towards the court and the litigants.” Even though
Paetkau raised the lack of service in his anti-SLAPP motion, Gettel did not address that
circumstance in his written opposition, let alone argue that this lack of service precluded
Paetkau from bringing his anti-SLAPP motion. Gettel asserts that he expressed to the
trial court that an “anti-SLAPP motion could not occur prior to the trial court making a
preliminary probable cause determination and issuing an order to show cause, which
steps were necessary preliminaries to service of a [Civil Code section] 1714 Petition.”
He does not provide a record citation for his contention and, in any event, we reject
Gettel’s claim that he preserved his argument by presenting another argument “in
different garb with emphasis on slightly different stages of the same process.”
Moreover, even if we declined to apply the forfeiture doctrine to Gettel’s
contention that the anti-SLAPP statute does not apply for lack of service of the petition,
we would conclude it is meritless. Section 425.16 does not expressly require a defendant
or respondent to have been served before bringing an anti-SLAPP motion to an otherwise
operative complaint or petition that names that defendant or respondent.
Gettel cites no statutory or case authority for the proposition that Paetkau was
precluded from filing, and consequently the trial court was barred from considering, an
anti-SLAPP motion prior to “service of process.” Our independent research has likewise
identified no such authority. Such a rule does not appear in the statute and under these
circumstances “would defeat the anti-SLAPP statute’s central purpose of preventing
‘ “ ‘SLAPPs by ending them early and without great cost to the SLAPP target.’ ” ’ ”
(Barry v. State Bar of California (2017) 2 Cal.5th 318, 328.)10 We decide that the lack of
service of the petition on Paetkau did not defeat application of the anti-SLAPP statute.
10
Appellant argues he did not serve Paetkau to spare him from the burden of
litigation. He does not explain the legal relevance of his self-described subjective intent,
20
We turn to the merits of the trial court’s order granting Paetkau’s anti-SLAPP
motion.
3. Application of Anti-SLAPP Statute
Gettel asserts that Paetkau failed to meet his burden of showing his conduct was
protected under section 425.16, subdivision (e), because the “case falls in category
described by [section 425.16, subdivision (e)(4)] and does not involve any matter of
general interest.” Relatedly, he argues “[t]here is no conceivable way that the selection
of a particular Superior Court by [the Saiches] could be deemed to be in ‘furtherance’ of
communication regarding a ‘public issue or an issue of public interest.’ ”
Based on our independent review of the record, we have little difficulty
concluding that Paetkau satisfied his initial burden in step one. The record demonstrates
Paetkau satisfied his threshold burden of showing the activity underlying the petition was
protected under section 425.16(e)(1). The crux of Gettel’s claim was that Paetkau
conspired with his clients to file a lawsuit in the wrong venue. For the reasons we have
previously explained, the filing of a lawsuit is protected conduct (see Section II.B.2.,
ante). (See also Rusheen, supra, 37 Cal.4th at p. 1056 [protected conduct “includes
qualifying acts committed by attorneys in representing clients in litigation”].)
Furthermore, the demand letter sent by Paetkau very shortly before initiation of
the Santa Clara County lawsuit that Gettel claims was a “sham device” to create venue in
Santa Clara County Superior Court is likewise protected conduct. (See Malin v. Singer
(2013) 217 Cal.App.4th 1283, 1294 [holding “under the general rule articulated in
Briggs, [attorney]’s demand letter is a protected speech or petitioning activity under the
anti-SLAPP statute”].)
Paetkau was not required—as Gettel appears to suggest—to additionally show his
acts were in furtherance of a public issue. As stated in Briggs, “inferring a separate
and the California Supreme Court has characterized a plaintiff’s subjective intent as
irrelevant to the anti-SLAPP analysis. (See Navellier, supra, 29 Cal.4th at p. 88.)
21
‘public issue’ requirement in subdivision (e)(1) and (2) of section 425.16 would result in
the anomalous result that much direct petition activity—viz., petition activity connected
to litigation that trial courts determine is not focused on an inherently ‘public’ issue—
while absolutely privileged under the litigation privilege codified by Civil Code section
47, subdivision (b) and under the federal and state Constitutions, would not be entitled to
the procedural protections of the anti-SLAPP law, even though section 425.16 expressly
states the Legislature’s intent thereby ‘broadly’ to protect the right of petition (§ 425.16,
subd. (a)).” (Briggs, supra, 19 Cal.4th at p. 1121.)
Furthermore, Gettel does not dispute and our independent review confirms that the
Civil Code section 1714.10 proceeding against Paetkau arises from Paetkau’s protected
petitioning conduct. Here, the petitioning activity forms the core of Gettel’s claim that
Paetkau conspired with his clients the Saiches to commit abuse of process. (See Wilson,
supra, 7 Cal.5th at p. 890.) Therefore, Paetkau satisfied his burden under step one of the
anti-SLAPP analysis.
Turning to step two, Gettel appears to concede in his opening brief that his claim
against Paetkau lacks merit, and the trial court correctly decided that he had failed to
meet his burden to establish a probability of success. Specifically, Gettel states the Santa
Cruz County Superior Court “correctly concludes Gettel did not establish he was likely to
prevail in the Santa Cruz action that [the Saiches] (and derivatively Paetkau) had filed the
Santa Clara Action in the wrong venue.” (Some capitalization omitted.) We accept that
concession, particularly in light of our conclusion (see Section II.B.3, ante) that the abuse
of process claim at the heart of Gettel’s conspiracy claim was barred by the absolute
litigation privilege.
4. Abatement Claim
Gettel contends that the trial court “prematurely” ruled on the anti-SLAPP motion
based on what he describes as the “abatement doctrine.” We understand Gettel’s
contention, similar to the abatement claim he raises in the related appeal (see Section
22
II.B.4, ante) to be that the trial court should not have ruled on the anti-SLAPP motion
because the issue of proper venue was still pending in the Santa Clara County lawsuit.
Paetkau responds that (1) Gettel forfeited his claim by failing to move to stay or abate the
proceeding in the Santa Cruz County Superior Court proceeding, and (2) the claim is
meritless.
In arguing he did not forfeit the abatement issue, Gettel appears to acknowledge he
did not make a motion to stay or abate the proceeding in Santa Cruz County Superior
Court, but that he did “raise a particular concern” to that court. We assume without
deciding that Gettel adequately preserved this issue for appeal by raising the claim in the
trial court.11 However, we conclude that Gettel nevertheless has forfeited his claim on
appeal by failing to support it with citations to any authority. (See Lee v. Kim, supra, 41
Cal.App.5th at p. 721.)
As in his appeal of the trial court’s order granting the Saiches’ anti-SLAPP
motion, Gettel fails to cite to any legal authority that supports reversal of the order on the
grounds that the Santa Cruz County Superior Court should have abated the proceeding.
His opening brief includes a lengthy section addressing abatement generally but fails to
cite any law that explains the standards for abatement or any law that supports his
argument. As Gettel has forfeited the contention of abatement by failing to cite any
11
On February 11, 2021, appellant filed an unopposed request for judicial notice
of several documents, including the memorandum of points and authorities he filed in the
Santa Cruz County Superior Court in his case against the Saiches (18CV02356). He
asserts that the memorandum was incorporated in his case against Paetkau because he
“expressly incorporated” the document, and therefore he did not forfeit his argument that
the trial court should have stayed the matter or that the matter was subject to abatement.
Since we assume here that he asserted this argument in the trial court, we deny the
request with respect to that memorandum (see Doe, supra, 42 Cal.4th at p. 544, fn. 4),
which in any event is already part of the record in the other appeal. Additionally,
appellant requested we take judicial notice of court filings and orders made in the Santa
Clara County lawsuit. We conclude these documents are irrelevant to our determination
and therefore deny the request in its entirety. (Ibid.)
23
authority and because we have rejected Gettel’s other arguments in support of reversal,
we affirm the trial court’s September 17, 2019 order granting Paetkau’s anti-SLAPP
motion.
D. Attorney Fees
Gettel notes that the September 17, 2019 orders granted attorney fees to
respondents for prevailing on their respective anti-SLAPP motions but does not assert
any independent legal error as to those rulings. Gettel’s sole basis for challenging the
award of attorney fees to Paetkau and the Saiches under section 425.16, subdivision (c),
is that the trial court erred in granting their anti-SLAPP motions. “Under section 425.16,
subdivision (c), ‘any SLAPP defendant who brings a successful motion to strike is
entitled to mandatory attorney fees.’ ” (S. B. Beach Properties v. Berti (2006) 39 Cal.4th
374, 379; Barry, supra, 2 Cal.5th at p. 327.) Because we affirm the trial court’s orders
granting the anti-SLAPP motions, we also affirm its findings that Paetkau and the Saiches
were entitled to attorney fees pursuant to section 425.16, subdivision (c)(1).12
III. DISPOSITION
The September 17, 2019 orders granting respondents’ anti-SLAPP motions and
awarding them attorney fees are affirmed. Respondents are entitled to recover their
attorney fees and costs on appeal pursuant to section 425.16, subdivision (c), in amounts
to be determined by the trial court.
12
We do not express an opinion as to the appropriate amount of those attorney
fees and costs, which were not specified in the September 17, 2019 orders and are not at
issue here.
24
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047552, Gettel v. Paetkau
H047553, Gettel v. Saich et al.