Boster Associates v. Dynamic Finance CA2/2

Filed 2/15/23 Boster Associates v. Dynamic Finance CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BOSTER ASSOCIATES B313729
LIMITED,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC488552)
v.
DYNAMIC FINANCE
CORPORATION et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Richard L. Fruin, Jr., Judge. Affirmed.
Frandzel Robins Bloom & Csato, Thomas M. Robins III,
Michael Gerard Fletcher, Brett L. McClure and Bruce D. Poltrock
for Defendants and Appellants.
Mayer Brown, John Nadolenco, Michael F. Kerr, Andrew
Demko and C. Mitchell Hendy for Plaintiff and Respondent.
This consolidated appeal concerns the trial court’s denial of
four special motions to strike filed pursuant to Code of Civil
Procedure section 425.16.1 The motions were filed by appellants
Dynamic Finance Corporation (DFC), Angela Chen Sabella,
Beresford Properties, LLC (Beresford) and Cambridge Financial
of California, LLC (Cambridge) (collectively appellants), who are
defendants in this action brought by respondent Boster
Associates Limited (Boster or respondent) on Boster’s claims of
breach of contract, conversion, and interference with prospective
economic advantage, among others.
Appellants’ special motions to strike involve references in
Boster’s allegations to appellants’ involvement in bankruptcy
proceedings and, in the case of Beresford, involvement in a
Riverside county tax sale. Because these proceedings were
incidental to Boster’s allegations, we find that the trial court
properly denied the special motions to strike.
BACKGROUND2
The initial loan and participation agreement
In early July 2000, DFC made an $18 million real property
investment in Riverside County, California, by lending $18
million to Rancho California Country Club (RCCC). The loan was
secured by parcels of real property in Riverside County, near
Temecula.
1 All further statutory references are to the Code of Civil
Procedure unless otherwise noted. A special motion to strike
under section 425.16 is also referred to as an anti-SLAPP motion.
2 As this matter comes to us at the pleading stage, all
claimed facts set forth herein should be considered unproven
allegations.
2
Approximately two weeks later, on July 19, 2000, DFC and
Boster entered into the participation agreement (PA) pursuant to
which Boster purchased a 99 percent interest in the $18 million
RCCC loan.3 Boster paid $15,416,728.48 for its participation
interest. DFC’s obligation to pay Boster its 99 percent share
included any “proceeds of the collateral.” The PA allowed DFC to
cross-collateralize other assets as security for the repayment plus
interest of the RCCC loan. The PA mandated that “whenever
Lender receives . . . any payment of principal of, interest accrued
on . . . or other fees with respect to, the Loan (whether voluntary,
involuntary, by application of set-off or counterclaim, as proceeds
of the collateral or otherwise), Lender shall . . . pay Participant
3 Boster and DFC were two of many companies owned or
controlled by Chen Din-Hwa (Chen) during his lifetime. Chen’s
two daughters are Vivien Chen (Vivien) and Sabella. (Boster
Associates Ltd. v. Dynamic Finance Corp. (Sept. 11, 2015,
B252609, B254451) [nonpub. opn.].) As the trial court pointed
out in its written decision, the original complaint alleged that in
December 2003 Chen made a gift of certain assets supposedly of
equal value to his daughters, with Sabella owning indirectly DFC
and Vivien owning indirectly Boster. Chen retained ownership
and control of Boster until November 2008, when a conservator
was appointed to administer Chen’s affairs. Sabella is DFC’s
principal. In 1985, Chen appointed Sabella president of DFC.
Beginning near the end of 2003, when Chen designated Sabella to
receive his United States assets, Sabella became the controlling
person of DFC with control of the trust that is the indirect 100
percent owner of DFC. Thus, appellants DFC and Sabella assert
that at the time of the initial loan and PA in this matter, Chen
owned and controlled both Boster and DFC.
3
Share of such payment to Participant . . . .”4 The PA specified:
“Lender will not, without the consent of Participant, agree to . . .
release or subordinate all or any substantial portion of the
collateral for any of the Loan . . . except in accordance with the
terms of the Loan Agreement or the Loan Documents.”
The PA also required DFC to “furnish an accounting to
[Boster] as promptly as practicable following [Boster’s] request
therefor.”
DFC paid Boster approximately $5.9 million in
December 2001 under the PA, but made no further payments
under the PA. Boster’s allegations describe numerous
transactions in which DFC and its alleged coconspirators
participated, involving the parcels of land that secured the RCCC
loan. Boster alleges that these transactions eliminated the
collateral securing the RCCC loan and that, despite receiving
proceeds from these transactions, DFC failed to share such
proceeds with Boster, as required under the PA.
The disputed transactions are set forth in detail below.
North Plaza
In June 2000, as plans for the RCCC investment were
underway, DFC obtained a deed of trust to real property owned
by North Plaza LLC (North Plaza). Boster alleges that North
Plaza is under common management and/or ownership with
RCCC. The North Plaza deed of trust provided a portion of the
security for the RCCC loan from its inception. The North Plaza
deed of trust was recorded in January 2001 in Riverside County.
4 DFC was defined as the “Lender” and Boster was defined
as the “Participant.”
4
In November 2002, DFC recorded a release of the North
Plaza deed of trust. Boster alleges that Sabella and DFC did not
inform Boster of this release, in violation of the PA agreement,
and to which Boster did not agree.
In January 2004, DFC recorded a “correction” of the
release, effectively reinstating the North Plaza deed of trust as
security for the RCCC loan but only as to a smaller portion of the
parcel (parcel 14). Boster asserts that this action negatively
affected its loan priority. Boster also alleges that DFC increased
its separate loans to North Plaza, thereby diluting Boster’s
security in the North Plaza deed. In November 2003, Sabella’s
mother purchased a 99 percent interest in DFC’s senior, separate
loans to North Plaza.5
In January 2004, the North Plaza project went into
involuntary bankruptcy. DFC filed two proofs of claim in the
North Plaza bankruptcy. One proof of claim solely evidenced the
cross-collateralized portion of the RCCC loan secured by the
junior North Plaza deed of trust on parcel 14 (claim 15). At the
same time, DFC filed a separate proof of claim evidencing its
direct, senior lien in the North Plaza bankruptcy for an amount
that had grown to nearly $12.6 million (Claim 16).
In May 2005, pursuant to an order of the bankruptcy court,
DFC received $10.5 million from the sale of the North Plaza
property. The payment constituted a partial payment on DFC’s
senior lien, which did not involve Boster. DFC received no money
5 The proceeds of the purchase were wired to Rostack
Investments, Inc., another company owned by Chen that was
participating in DFC’s direct loan to North Plaza. Sabella’s
mother purchased 100 percent of Rostack’s 99 percent interest in
DFC’s senior North Plaza loan.
5
from the North Plaza bankruptcy estate for its junior lien on the
North Plaza deed of trust for the lien on parcel 14 for the RCCC
loan.
The proceeds from the $10.5 million payment were paid to
Sabella’s mother, with a small portion returned to DFC to reflect
its 1 percent interest in the direct loans to North Plaza.6
Vail Lake entities
When Boster entered into the PA, part of the collateral
securing the RCCC loan included a deed of trust on property
owned by Vail Lake Rancho California (VLRC). Boster alleges
that VLRC is affiliated by common management or ownership
with RCCC.
On June 30, 2000, VLRC executed a deed of trust for the
benefit of DFC on certain real property to provide security for the
RCCC note. Boster alleges that over the following 14 years, DFC,
working in conjunction with Beresford and Cambridge, conducted
a series of transactions without Boster’s consent that ultimately
eliminated the entire security interest.
First, Boster alleges that appellants deprioritized the
VLRC/RCCC security interest by making later loans to various
related entities (collectively the Vail Lake entities). In
September 2002, DFC and Sabella released the deed of trust on
the VLRC property. Boster was not informed of the reconveyance
and was not provided with proceeds of the collateral DFC and
6 Appellants point out that the $10.5 million payment was
made in 2005, at which time 99 percent was promptly directed to
Mrs. Chen. The ultimate settlement with the bankruptcy trustee
was six years later, in April 2011, pursuant to which it was
confirmed that the 2005 payment would not be wholly or partially
revoked by the bankruptcy court.
6
Sabella received from such release. DFC then loaned a total of
$22 million to other Vail Lake entities—namely, Vail Lake USA
(VLUSA) and Vail Lake Village and Resort (VLVR). DFC
allegedly intended for these loans, which were recorded on
July 23, 2002, to be senior to the RCCC Vail Lake loan involving
Boster. DFC and Sabella never informed Boster of these actions,
which were to Boster’s detriment. After recording these senior
liens on property owned by VLUSA and VLVR, on November 27,
2002, DFC recorded deeds of trust securing the RCCC Vail Lake
loan on the VLUSA and VLVR properties. “DFC deliberately
chose to subordinate the deed of trust securing the RCCC Note in
which Boster had a 99% interest to the deed of trust for the $17
million VLUSA Note in which Boster had no interest by recording
the former more than two months after the latter.” Boster
alleges that Sabella made other loans to VLUSA in 2002, which
were recorded with priority over the lien securing the RCCC note.
After recording many liens on the VLUSA and VLVR
properties, which diminished the priority of the lien securing the
RCCC loan, in 2010, DFC, Sabella, and an entity known as
Prudent Financial (Prudent) entered into an agreement with
Cambridge for the purchase and sale of loans (APSL).7 Pursuant
to this transaction, DFC (through Prudent) and Sabella sold their
own loans secured by the Vail Lake properties to Cambridge, who
7 Boster alleges that Prudent’s participation in the APSL
was merely nominal. Boster alleges that Prudent was selling
loans and related security interests that were previously held by
DFC but transferred to Prudent—and when payment was made
for those loans and security interest, the payment went to DFC,
not Prudent. Sabella admits that Prudent was “an affiliate of
DFC to which certain DFC loans had been assigned.”
7
did not buy the RCCC loan, which was not included in the
transaction. As a result, Sabella and DFC received
approximately $36 million. Boster alleges that through this
transaction, having previously subordinated the RCCC lien in
violation of the PA, DFC and Sabella were able to sell their own
security interests to Cambridge to Boster’s detriment.
In 2012 and 2013, the Vail Lake entities and other related
entities entered into chapter 11 bankruptcy proceedings in the
United States Bankruptcy Court for the Southern District of
California (Vail Lake bankruptcy). Cambridge, Beresford, and a
related entity known as XD Conejo Notes, LLC (XD Conejo) each
filed proofs of claim against VLRC, VLUSA, and VLVR in the
Vail Lake bankruptcy.8
In July 2014, Cambridge, Beresford and XD Conejo entered
into a settlement agreement with the debtors of the Vail Lake
bankruptcy, including VLRC, VLUSA, and VLVR, in which
Cambridge, Beresford and XD Conejo agreed to release their
claims in the Vail Lake bankruptcy in exchange for the debtors’
agreement to sell the underlying real estate parcels to
Cambridge, Beresford and XD Conejo. On the same day,
Cambridge, Beresford and XD Conejo executed an agreement and
escrow instructions with Rancho California Water District
(RCWD) to sell the property to RCWD. Under that agreement,
8 Boster alleges that Ian Robertson and Kenneth Kai Chang
were the managing members of Cambridge, Beresford, and XD
Conejo. Specifically, both Robertson and Chang are principals of
Cambridge. Chang is a managing member of Beresford, and
Robertson was a managing member of XD Conejo. Boster also
alleges that Sabella and Chang have known each other since at
least 2000.
8
Cambridge, Beresford and XD Conejo sold the Vail Lake parcels
to RCWD for $49,770,000. Pursuant to the APSL, DCF and
Sabella received approximately $36 million of the money from the
sale of the property to RCWD. Boster was never informed of the
APSL, the sale of the DFC/Sabella loans to Cambridge, or the
Vail Lake bankruptcy. DFC never shared any of the proceeds it
received with Boster. Boster alleges that DFC and Sabella
orchestrated Cambridge’s purchase of the DFC/Sabella loans as
part of a scheme to release the Vail Lake deeds of trust that
cross-collateralized Boster’s interest and to personally profit from
the sale of the underlying securing properties to RCWD. Boster’s
interest in the Vail Lake properties was entirely extinguished by
this series of events, and Boster received nothing.
Walker Basin
The original RCCC note, executed in 2000 and in which
Boster took a 99 percent interest, was expressly secured by a
deed of trust on the land that RCCC intended to develop with
that loan, known as the Walker Basin deed of trust.
In approximately 2012, the property tax on the real estate
parcels encumbered by the Walker Basin deed of trust became
delinquent. In February 2012, DFC received notice from the
Riverside County Assessor’s Office that the Walker Basin parcels
would be sold at a March 20, 2012 county tax sale. Sabella and
DFC informed Cambridge and Beresford of the tax sale. Neither
DFC nor Sabella informed Boster about the tax sale, or took any
action to protect the collateral.
On March 20, 2012, the Walker Basin parcels were sold in
a Riverside county tax sale. The winning bidder was Beresford,
which purchased the parcels for approximately $3,371,000. The
9
tax sale had the effect of extinguishing the Walker Basin deed of
trust.
In March 2013, DFC submitted a claim to Riverside County
for its excess proceeds on the Walker Basin tax sale. DFC never
informed Boster of its application to Riverside County for excess
proceeds, nor did it share in any proceeds recovered from such
application, or any profits or interest from Beresford’s possession
and potential development of the property. Boster alleges that
Sabella orchestrated Beresford’s purchase of the Walker Basin
parcels as part of a scheme to extinguish Boster’s interest in the
RCCC note and that Sabella oversaw the transaction knowing
that it constituted a breach of DFC’s obligations to Boster under
the PA.
Boster requests for information
Boster sent letters inquiring about the RCCC loan and
collateral in 2009 and 2012. DFC never answered the letters and
never informed Boster of the events described above that
eradicated Boster’s interest in the PA.
PROCEDURAL HISTORY
Pleadings
In July 2012, Boster filed a complaint against DFC for
breach of contract, alleging that DFC breached the PA by failing
to provide an accounting, as required under the PA, and failing to
pay Boster monies owed to Boster under the agreement,
including, without limitation, any consideration received by DFC
for its assignment and release of the North Plaza deed of trust.
DFC answered and filed a cross-complaint against Boster
and Vivien. Vivien brought a successful motion to quash service
of summons (Boster Associates Ltd. v. Dynamic Finance Corp.,
10
supra, B252609, B254451), and Boster brought a successful anti-
SLAPP motion striking the claims against it.
The first amended supplemental complaint (FASC) against
DFC was filed in 2018 and asserted causes of action for breach of
contract, breach of the covenant of good faith and fair dealing,
conversion, and fraudulent concealment. The FASC added
allegations concerning the Vail Lake entities.
Following extensive discovery disputes, Boster received a
production of documents that allowed it to learn for the first time
that the Walker Basin deed of trust had been released. Boster
also asserts that through this document production it learned
more details regarding Cambridge’s and Beresford’s involvement
in the loss of the collateral securing Boster’s loan.
By stipulation, Boster filed the operative second amended
supplemental complaint (SASC) on January 25, 2021. The SASC
added three new defendants: Sabella, Beresford, and Cambridge,
and alleged six new causes of action for interference with
prospective economic advantage, interference with contractual
relations, civil conspiracy, aiding and abetting, and equitable
mortgage against all four defendants.
Anti-SLAPP motions
In response to the SASC, the four appellants separately
filed the four anti-SLAPP motions that are the subject of this
appeal.
Boster filed a motion to strike DFC’s anti-SLAPP motion as
untimely, asserting that DFC’s anti-SLAPP sought to strike
allegations that were present in both the original complaint and
the FASC. Boster did not contend that the portion of DFC’s
motion directed to the newly pled eighth cause of action was
11
untimely, and it addressed DFC’s motion to strike portions of the
eighth cause of action in its opposition.
Appellants’ motions asserted that some of Boster’s
allegations arose from protected activity under the first prong of
section 425.16. The four appellants challenged allegations
surrounding different events. Only DFC and Sabella challenged
allegations surrounding the North Plaza bankruptcy. All four
appellants challenged allegations surrounding the Vail Lake
bankruptcies. Only Beresford challenged the allegations
surrounding the Walker Basin tax sale.
DFC’s anti-SLAPP motion
DFC’s anti-SLAPP motion sought to strike the references in
the SASC to actions surrounding the North Plaza and Vail Lake
entity bankruptcies, as follows:
“MOTION TO STRIKE NO. 1:
Ҧ 5a, p. 2:9-16 (italicized portion only):
“Unbeknownst to Boster, starting in or
around approximately 2002, Defendants
colluded and conspired to release,
extinguish, and subordinate the collateral
securing the RCCC Note—including the
Walker Basin Deed of Trust and other
deeds of trust that DFC cross-
collateralized as security—through a
series of byzantine transactions: a. The
North Plaza Bankruptcy. In 2000,
DFC cross-collateralized a deed of trust
known as the North Plaza Deed of Trust
as security for the RCCC Note, and
partially released it in 2002. When the
underlying debtor entered bankruptcy
proceedings in 2004, DFC filed creditor
12
claims in 2005, ultimately receiving $10.5
million in settlement in 2010.
“MOTION TO STRIKE NO. 2:
Ҧ 32, p. 9:7-8:
“On or about January 27, 2005, DFC filed
Claims in the North Plaza bankruptcy in
a total amount exceeding $30 million.
“MOTION TO STRIKE NO. 3:
Ҧ 33, p. 9:9-12:
“On May 3, 2005, and pursuant to an
order of the bankruptcy court, North
Plaza paid DFC $10,500,000, subject to
subsequent disgorgement by DFC, that
is, DFC might be required by the
bankruptcy court to repay all or part of
the $10,500,000 into North Plaza’s
bankruptcy estate.
“MOTION TO STRIKE NO. 4:
Ҧ 35, p. 9:15-17:
“In 2010, DFC and the Trustee entered
into settlement negotiations regarding
outstanding disputes between DFC and
the Trustee. In October, 2010, DFC and
the Trustee reached a settlement subject
to bankruptcy court approval.
“MOTION TO STRIKE NO. 5:
Ҧ 36, p. 9:18-23, and Exhibit E:
“On December 30, 2010, DFC moved the
bankruptcy court for its approval of the
settlement and submitted in support
thereof a declaration by its counsel
Michael Gerard Fletcher attaching a copy
13
of the final execution version of the
settlement agreement. A copy of
Mr. Fletcher’s declaration, including the
settlement agreement attached thereto,
is attached hereto as Exhibit E. The
settlement agreement between DFC and
the Trustee was approved by the
bankruptcy court and became effective on
April 1, 2011.
“MOTION TO STRIKE NO. 6:
Ҧ 37, p. 9:24-28:
“Under the settlement, DFC was allowed
to retain the $10,500,000 previously
received from North Plaza such that
those funds were no longer subject to
total or partial disgorgement by DFC.
DFC also received a general release of
claims and other consideration for the
settlement. In return, DFC, inter alia,
assigned to the Trustee all of its interest
under the North Plaza Deed of Trust.
DFC did not pay any of this $10.5 million
settlement to Boster.
“MOTION TO STRIKE NO. 7:
Ҧ 38, p. 10:1-5:
“Boster did not consent to DFC’s
assignment of DFC’s interests under the
North Plaza Deed of Trust to the Trustee
nor did DFC seek such consent or even
inform Boster that it was intending to
assign away collateral for the RCCC
Note. This assignment of DFC’s interests
constituted a substantial release of the
collateral for the RCCC Note and violated
14
Section 5(c)(4) of the Participation
Agreement.
“MOTION TO STRIKE NO. 8:
Ҧ 39, p. 10:6-11:
“The consideration DFC received for the
assignment of the North Plaza Deed of
Trust was ‘proceeds of collateral’ within
the meaning of Section 4(a) of the
Participation Agreement. DFC therefore
owed Boster under Section 4(a) of the
Participation Agreement Boster’s
Participant Share (99%) of the
consideration received by DFC for the
assignment of the North Plaza Deed of
Trust. However, DFC did not pay Boster
any part of the consideration DFC
received for its assignment of the North
Plaza Deed of Trust.
“MOTION TO STRIKE NO. 9:
Ҧ 52, p. 14:13-22 (allegation as to the release of
the amended VLUSA TD):
“DFC executed a Substitution of Trustee
and Full Reconveyance of Deed of Trust
dated as of August 4, 2014, the effect of
which was to release the security for the
RCCC Note provided by the VLUSA Deed
of Trust and the Amended VLUSA Deed
of Trust. This Substitution of Trustee and
Full Reconveyance of Deed of Trust was
recorded on August 25, 2014 in the
Riverside County, California official
records as instrument No. 2014-322092.
DFC did not notify Boster about this
release of its security and Boster did not
15
consent thereto. This release of security
was a substantial release of the collateral
for the RCCC Note and violated Section
5(c)(4) of the Participation Agreement.
DFC did not pay Boster any part of the
consideration DFC received for releasing
the VLUSA Deed of Trust and the
Amended VLUSA Deed of Trust.
“MOTION TO STRIKE NO. 10:
“¶ 53, p. 14:23–p. 15:1 (allegation as to the
release of the amended VLUSA TD):
“The consideration DFC received for the
release of the VLUSA Deed of Trust and
the Amended VLUSA Deed of Trust was
‘proceeds of collateral’ within the
meaning of Section 4(a) of the
Participation Agreement. DFC therefore
owed Boster under Section 4(a) of the
Participation Agreement Boster’s
Participant Share (99%) of the
consideration received by DFC for the
release of the VLUSA Deed of Trust and
the Amended VLUSA Deed of Trust.
However, DFC did not pay Boster any
part of the consideration it received for
the release of the VLUSA Deed of Trust
and the Amended VLUSA Deed of Trust.
“MOTION TO STRIKE NO. 11:
Ҧ 55, p. 15:5-9 (allegation as to the release of
the amended VLUSA TD):
“Given her position, Sabella almost
certainly orchestrated these transactions
as part of a scheme to subordinate
Boster’s liens on the VLUSA and
16
Amended VLUSA Deeds of Trust to the
liens securing the DFC/Sabella Loans, in
which Boster had no participation
interest. Sabella oversaw and approved
these transactions knowing, as DFC’s
manager, that they constituted breaches
of DFC’s obligations under the
Participation Agreement with Boster.
“MOTION TO STRIKE NO. 12:
“¶ 64, p. 16[:]25–p. 17:5 (allegation as to the
release of the amended VLVR Deed TD):
“DFC executed a Substitution of Trustee
and Full Reconveyance of Deed of Trust,
dated as of August 4, 2014, the effect of
which was to release the security for the
RCCC Note provided by the VLVR Deed
of Trust and the Amended VLVR Deed of
Trust. This Substitution of Trustee and
Full Reconveyance of Deed of Trust was
recorded on August 25, 2014 in the
Riverside County, California official
records as instrument No. 2014-322093[.]
DFC did not inform Boster about this
release of its security and Boster did not
consent thereto. This release of security
was a substantial release of the collateral
for the RCCC Note and violated Section
5(c)(4) of the Participation Agreement.
DFC did not pay Boster any part of the
consideration it received for releasing the
VLVR Deed of Trust and the Amended
VLVR Deed of Trust.
17
“MOTION TO STRIKE NO. 13:
Ҧ 65, 17:6-15 (allegation as to the release of
the amended VLVR TD):
“The consideration DFC received for the
release of the VLVR Deed of Trust and
the Amended VLVR Deed of Trust was
‘proceeds of collateral’ within the
meaning of Section 4(a) of the
Participation Agreement. DFC therefore
owed Boster under Section 4(a) of the
Participation Agreement Boster’s
Participant Share (99%) of the
consideration received by DFC for the
release of the VLVR Deed of Trust and
the Amended VLVR Deed of Trust.
However, DFC did not pay Boster any
part of the consideration DFC received
for its release of the VLVR Deed of Trust
and the Amended VLVR Deed of Trust.
Boster is informed and believes that DFC
and/or its affiliates later received
substantial compensation for the $5
million VLVR Note and the $17 million
VLUSA Note in the form of amounts
received from Cambridge Financial and
possibly others. Boster did not share in
this compensation.
“MOTION TO STRIKE NO. 14:
Ҧ 66, 17:16-20 (allegation as to the release of
the amended VLVR TD):
“Given her position, Sabella almost
certainly orchestrated these transactions
as part of a scheme to subordinate
Boster’s liens on the VLVR and Amended
18
VLVR Deeds of Trust to the liens
securing the DFC/Sabella Loans, in
which Boster had no participation
interest. Sabella oversaw and approved
these transactions knowing, as DFC’s
manager, that they constituted breaches
of DFC’s obligations under the
Participation Agreement with Boster.
“MOTION TO STRIKE NO. 15:
Ҧ 95, p. 23:20-21 (insofar as the paragraphs
that are subject to Motion Nos. 1-14 are incorporated
into this paragraph):
“95. Boster incorporates by reference the
allegations of paragraphs 1 through 94,
inclusive as set forth in full at this point.
“MOTION TO STRIKE NO. 16:
“A. ¶ 101, e. p. 24:28:
“e. releasing the security for the RCCC
Note provided by the VLUSA Deed of
Trust and the Amended VLUSA Deed of
Trust;
“B. ¶ 101, g. p. 25:4:
“g. releasing the security for the RCCC
Note provided by the VLVR Deed of Trust
and the Amended VLVR Deed of Trust;
“MOTION TO STRIKE NO. 17:
“A. ¶ 102, a. (2). p. 25:16:
“(2) the assignment of the North Plaza
Deed of Trust,
“B. ¶ 102, a. (4). p. 25:17-18:
19
“(4) the release of the VLUSA Deed of
Trust and the Amended VLUSA Deed of
Trust, and
“C. ¶ 102, a. (5). p. 25:18-19:
“(5) the release of the VLVR Deed of
Trust and the Amended VLVR Deed of
Trust.
“D. ¶ 102, b. p. 25:20-21:
“failing to pay to Boster any part of the
$10.5 million consideration received by
DFC for its assignment and release of the
North Plaza Deed of Trust;
“MOTION TO STRIKE NO. 18:
Ҧ 105, p. 26:13-14 (insofar as the paragraphs
subject to Motions Nos. 1-17 are incorporated into
this paragraph):
“Boster incorporates by reference the
allegations of paragraphs 1 through 104,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 19:
Ҧ 108, p. 26:21-22 (insofar as the paragraphs
that are subject to Motion Nos. 1-18 are incorporated
into this paragraph):
“Boster incorporates by reference the
allegations of paragraphs 1 through 107,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 20:
“A. ¶ 111, c. p. 27:13-14:
20
“assigning DFC’s interest under the
North Plaza Deed of Trust to a third
party;
“B. ¶ 111, g. p. 27:21-22:
“releasing the security for the RCCC
provided by . . . the Amended VLUSA
Deed of Trust.
“C. ¶ 111, h. p. 27:24:
“releasing the security for the RCCC
provided by . . . the Amended VLVR Deed
of Trust
“MOTION TO STRIKE NO. 21:
“¶ 113, p. 27-28–p. 28:1 (insofar as the
paragraphs that are subject to Motion Nos. 1-20 are
incorporated into this paragraph):
“Boster incorporates by reference the
allegations of paragraphs 1 through 112,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 22:
Ҧ 146, p. 33:3-4 (insofar as the paragraphs
that are subject to Motion Nos. 1-20 are incorporated
into this paragraph)[:]
“Boster incorporates by reference the
allegations of paragraphs 1 through 145,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 23:
“A. ¶ 149 (introduction), p 32-20-22 [sic]:
“DFC, Sabella, Beresford and Cambridge
each committed wrongful acts pursuant
21
to that agreement and design by causing
and pursuing the release,
extinguishment, and subordination of the
security for the RCCC Note to Boster’s
detriment. Specifically:
“B. ¶ 149, a. p. 33:25:
“By . . . assigning the North Plaza Deed
of Trust to a third party,
“C. ¶ 149, a. p. 33:26:
“By . . . releasing . . . the Amended
VLUSA Deed of Trust,
“D. ¶ 149, a. p. 33:27:
“By . . . releasing . . . the Amended VLVR
Deed of Trust.” (Fn. omitted.)
Sabella’s anti-SLAPP motion
Sabella’s anti-SLAPP motion sought to strike identical
allegations as DCF’s motion, but added a motion to strike No. 24
seeking to strike the allegation in Boster’s ninth cause of action
for aiding and abetting in paragraph 152, which stated, “Boster
incorporates by reference the allegations of paragraphs 1 through
151, inclusive, as though set forth in full at this point.”
Cambridge’s anti-SLAPP motion
Cambridge sought to strike the following allegations, which
somewhat overlapped with the allegations that DFC and Sabella
sought to strike:
“MOTION TO STRIKE NO. 1:
Ҧ 5, p. 2:9-p. 3:3 (italicized portion only)
“5. Unbeknownst to Boster, starting in or
around approximately 2002, Defendants
colluded and conspired to release,
extinguish, and subordinate the collateral
22
securing the RCCC Note—including the
Walker Basin Deed of Trust and other
deeds of trust that DFC cross
collateralized as security—through a
series of byzantine transactions:
“* * *
“c. The Vail Lake Bankruptcy.
In 2010, Sabella and DFC, through a
DFC sister company named Prudent
Finance, LLC (‘Prudent’), sold the
DFC/Sabella Loans to Cambridge. When
the corporations that held title to the real
estate parcels securing those loans—
which also secured Boster’s interest by
virtue of DFC’s cross-collateralization—
went into bankruptcy in 2012, Cambridge
filed and eventually settled its creditor
claims against the corporations. Under
the 2014 settlement agreement,
Cambridge was able to purchase certain
real estate parcels previously owned by
debtors, and quickly sold those parcels to
a local water district for $49.6 million.
“MOTION TO STRIKE NO. 2:
Ҧ 46, p. 13:4-6:
“46. Boster is informed and believes that
DFC, Sabella and/or their affiliates later
received substantial compensation from
Cambridge and possibly others for the
sale to those entities of the DFC/Sabella
Loans. Boster did not share in any of this
compensation.
“MOTION TO STRIKE NO. 3:
Ҧ 54, p. 15:2-4:
23
“54. Boster is informed and believes that
DFC and/or its affiliates later received
substantial compensation for the $17
million VLUSA Note, in the form of
amounts received from Cambridge
Financial and possibly others. Boster did
not share in this compensation.
“MOTION TO STRIKE NO. 4:
Ҧ 65, p. 17:12-15:
“74. Boster is informed and believes that
DFC and/or its affiliates later received
substantial compensation for the $5
million VLVR Note, in the form of
amounts received from Cambridge
Financial and possibly others. Boster did
not share in this compensation.
“MOTION TO STRIKE NO. 5:
Ҧ 74, p. 19:26-28 (italicized portion only):
“74. Cambridge, Beresford, and related
entity XD Conejo Notes, LLC (‘XD
Conejo’), a California limited liability
company, each filed Proofs of Claim
against VLRC, VLUSA, and VLVR in the
Vail Lake Bankruptcy.
“MOTION TO STRIKE NO. 6:
Ҧ 76, 20:7-12 and Exhibit G (italicized portion
only):
“76. On July 8, 2014, Cambridge,
Beresford, and XD Conejo entered into a
settlement agreement with the debtors of
the Vail Lake Bankruptcy, including
VLRC, VLUSA and VLVR, wherein
Cambridge, Beresford, and XD Conejo
24
agreed to release their claims in the Vail
Lake Bankruptcy. In exchange, the
debtors agreed to sell, through a
bankruptcy sale, the underlying real
estate parcels securing the DFC/Sabella
Loans (the ‘Vail Lake Parcels’) to
Cambridge, Beresford, and XD Conejo.
The settlement agreement is attached
hereto as Exhibit G.
“MOTION TO STRIKE NO. 7:
Ҧ 77, p. 20:13-17 (italicized portion only):
“77. On the same day, July 8, 2014,
Cambridge, Beresford, and XD Conejo
executed an Agreement and Escrow
Instructions with the Rancho California
Water District (‘RCWD’), a California
local independent special district. Under
that agreement, Cambridge, Beresford,
and XD Conejo sold the Vail Lake Parcels
and related claims in the Vail Lake
Bankruptcy to RCWD 17 for
$49,770,000.00 USD.
“MOTION TO STRIKE NO. 8:
Ҧ 78, p. 20:18-24:
“78. Pursuant to the APSL [i.e., the
Agreement for Purchase and Sale of
Loans alleged at ¶¶ 67-72 SASC Exh. F],
Cambridge made two payments to
DFC/Sabella as follows: DFC received
$28.88 million on August 26, 2014—as
noted above it was DFC not Prudent who
received the payment for the interests
purportedly transferred by DFC to
Prudent; Sabella received $7.4704 million
25
on October 26, 2014. This totaled to
$36.3504 million.
“MOTION TO STRIKE NO. 9:
Ҧ 95, p. 23:20-21 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-8 and to the extent same is
incorporated by reference in subsequent paragraphs):
“95. Boster incorporates by reference the
allegations of paragraphs 1 through 94,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 10:
Ҧ 105, p. 26:13-14 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-8 and to the extent same is
incorporated by reference in subsequent paragraphs):
“105. Boster incorporates by reference the
allegations of paragraphs 1 through 104,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 11:
Ҧ 108, p. 26:21-22 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-8 and to the extent same is
incorporated by reference in subsequent paragraphs):
“108. Boster incorporates by reference the
allegations of paragraphs 1 through 107,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 12:
Ҧ 113, p. 27:28-p. 28:1 (to the extent same
incorporates by reference the paragraphs subject to
26
Motion Nos. 1-8 and to the extent same is
incorporated by reference in subsequent paragraphs):
“113. Boster incorporates by reference the
allegations of paragraphs 1 through 112,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 13:
Ҧ 120, p. 29:10-11 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-8 and to the extent same is
incorporated by reference in subsequent paragraphs):
“120. Boster incorporates by reference the
allegations of paragraphs 1 through 119,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 14:
Ҧ 124, p. 29:26-p. 30:1 (italicized portion only):
“124. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement [i.e., presumably the APSL],
pursuing creditor claims against VLUSA,
VLRC, and VLVR in the Vail Lake
Bankruptcy, settling those claims in the
Vail Lake Bankruptcy, and selling the
underlying Vail Lake Parcels to RCWD,
Cambridge intentionally acted to disrupt
Boster’s economic relationship with DFC.
“MOTION TO STRIKE NO. 15:
Ҧ 129, p. 30:19-20 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-14 and to the extent same is
incorporated by reference in subsequent paragraphs):
27
“129. Boster incorporates by reference the
allegations of paragraphs 1 through 128,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 16:
Ҧ 133, p. 31:6-9 (italicized portion only):
“133. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement, pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy, and
selling the underlying Vail Lake Parcels
to RCWD, Cambridge negligently acted to
disrupt Boster’s economic relationship
with DFC.
“MOTION TO STRIKE NO. 17:
Ҧ 137, p. 31:23-24 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-23 and to the extent same is
incorporated by reference in subsequent paragraphs):
“137. Boster incorporates by reference the
allegations of paragraphs 1 through 136,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 18:
Ҧ 141, p. 32:8-12 (italicized portion only):
“141. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement, pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy, and
28
selling the underlying Vail Lake Parcels
to RCWD, Cambridge intentionally acted
with a design to induce DFC’s breach of
the Participation Agreement and the
disruption of DFC’s and Boster’s
contractual relationship.
“MOTION TO STRIKE NO. 19:
Ҧ 146, p. 33:3-4 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-29 and to the extent same is
incorporated by reference in subsequent paragraphs):
“146. Boster incorporates by reference the
allegations of paragraphs 1 through 145,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 20:
Ҧ 147, p. 33:5-14 (insofar as same references
Cambridge and the matters stricken under Motion
Nos. 1-19):
“147. As a group, DFC, Beresford, and
Cambridge agreed to a common plan
and/or design devised by Sabella to
deprive Boster of its rights under the
Participation Agreement. Specifically,
DFC, Sabella, Beresford and Cambridge
colluded and conspired to recover
proceeds of the collateral securing
Boster’s interest in the Participation
Agreement without notifying Boster,
obtaining its consent, or sharing the
eventual payments it received—totaling
at least in the tens of millions of dollars—
with Boster. In short, DFC, Sabella,
Beresford and Cambridge conspired and
29
colluded to pursue a major real estate
development project in the Vail
Lake/Walker Basin area in Temecula,
California that was substantially and
significantly funded by Boster’s 99%
participation in the RCCC Note, all the
while preventing Boster from receiving
any of the returns on its investment to
which it was entitled under the
Participation Agreement.
“MOTION TO STRIKE NO. 21:
Ҧ 148, p 33:15-19 [sic] (insofar as same
references Cambridge and the matters stricken under
Motions Nos. 1-19):
“148. Thus, DFC, Sabella, Beresford and
Cambridge agreed to a common plan
and/or design to intentionally and/or
negligently interfere with Boster’s
prospective economic advantage,
intentionally interfere with Boster and
DFC’s contractual relations, and/or to
fraudulently conceal DFC’s release,
extinguishment, or subordination of the
security for the RCCC Note.
“MOTION TO STRIKE NO. 22:
Ҧ 149c, p. 33:20-22 and p. 34:11-17 (italicized
portion only):
“149c. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement, pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy, and
selling the underlying Vail Lake Parcels
30
to RCWD, Cambridge intentionally
and/or negligently interfered with
Boster’s prospective economic advantage
and intentionally interfered with Boster
and DFC’s contractual relations, and
therefore committed wrongful acts
pursuant to the agreement and design
described above.
“MOTION TO STRIKE NO. 23:
Ҧ 152, p. 35:6-7 (to the extent same
incorporates by reference the paragraphs subject to
Motion Nos. 1-22 and to the extent same is
incorporated by reference in subsequent paragraphs):
“152. Boster incorporates by reference the
allegations of paragraphs 1 through 151,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 24:
Ҧ 156, p. 35:21-24 (insofar as same is based on
allegations subject to Motions Nos. 1-22):
“156. As alleged herein, Cambridge
intentionally and/or negligently
interfered with Boster’s prospective
economic advantage and intentionally
interfered with Boster and DFC’s
contractual relations. Beresford and
Sabella each knew of these wrongful and
tortious acts by Cambridge, and
substantially assisted and/or encouraged
them.
31
“MOTION TO STRIKE NO. 25:
“A. ¶ 157a, p. 35:25-p. 36:3 (italicized portion
only and insofar as same is based on allegations
subject to Motions Nos. 1-24):
“a. Sabella orchestrated, and aided and
abetted: (1) DFC’s breach of the covenant
of good faith and fair dealing, (2) DFC’s
conversion, (3) DFC’s fraudulent
concealment, (4) Beresford and
Cambridge’s intentional interference with
prospective economic advantage, (5)
Beresford and Cambridge’s negligent
interference with prospective economic
advantage, and (6) Beresford and
Cambridge’s intentional interference with
contractual relations.
“B. ¶ 157b, p. 36:4-8 (italicized portion only and
insofar as same is based on allegations subject to
Motions Nos. 1-24):
“b. Beresford aided and abetted: (1)
DFC’s breach of the covenant of good
faith and fair dealing, (2) DFC’s
conversion, (3) DFC’s fraudulent
concealment, (4) Sabella and Cambridge’s
intentional interference with prospective
economic advantage, (5) Sabella and
Cambridge’s negligent interference with
prospective economic advantage, and (6)
Sabella and Cambridge’s intentional
interference with contractual relations.
“C. ¶ 157c, p. 36:9-13 (insofar as same is based
on allegations subject to Motions Nos. 1-24):
“c. Cambridge aided and abetted: (1)
DFC’s breach of the covenant of good
32
faith and fair dealing, (2) DFC’s
conversion, (3) DFC’s fraudulent
concealment, (4) Beresford and Sabella’s
intentional interference with prospective
economic advantage, (5) Beresford and
Sabella’s negligent interference with
prospective economic advantage, and (6)
Beresford and Sabella’s intentional
interference with contractual relations.”
Beresford’s anti-SLAPP motion
Beresford challenged similar allegations relating to
Beresford’s participation in the Vail Lake bankruptcy, and added
challenges to the allegations surrounding Beresford’s
participation in the Walker Basin tax sale.9
9 Beresford asserts that in suing Beresford regarding events
surrounding the Vail Lake bankruptcies, Boster has sued the
wrong entity. Beresford claims that a different entity, nonparty
Beresford Development, LLC, was the entity involved in the
purchase of the Vail Lake liens and the sale to RCWD. In its
motion to strike, Beresford argued that it had standing to bring
the motion, even though it was not the “Beresford” party that
participated in the Vail Lake bankruptcies. Under the second
prong of the anti-SLAPP test, Beresford argued that it was not
the entity that committed the allegedly wrongful act of
participating in the bankruptcy. In response, Boster asserts that
it will propound discovery regarding the Beresford entities, and,
if the facts warrant it, will in due course request that the
pleadings be corrected according to proof. Boster notes that the
SASC asserts that the entities involved with the Vail Lake
properties were “developer and defendant Beresford Properties,
LLC . . . and its affiliate Beresford Development, LLC, both
California Corporations.” Boster asserts that this possible
33
The following are the allegations Beresford sought to strike
that did not overlap with Cambridge’s:10
“MOTION TO STRIKE NO. 5:
Ҧ 83, p. 21:19-24:
“83. Upon information and belief, the
property tax owned on the real estate
parcels encumbered by the Walker Basin
Deed of Trust (the ‘Walker Basin
Parcels’) became delinquent in
approximately 2012. In or around
February 2012, DFC received notice from
the Riverside County Assessor’s Office
that the Walker Basin Parcels would be
sold at a March 20, 2012 county tax sale
due to their tax delinquent status.
Individuals acting on behalf of Sabella
and DFC informed Beresford and
Cambridge of the upcoming tax sale.
“MOTION TO STRIKE NO. 6:
Ҧ 85, 21:27-p. 28:2:
“85. On March 20, 2012, the Walker
Basin Parcels were sold at the County of
Riverside, Office of the Treasurer-Tax
Collector’s Sale of Tax Defaulted
Property. The winning bidder on the
Walker Basin Parcels was Beresford—
which, upon information and belief,
pleading error does not justify granting an anti-SLAPP motion.
We agree and decline to discuss this point further.
10 Beresford concedes that there were typographical errors in
its motion where it sought to strike italicized portions of a
paragraph where there were no italics.
34
purchased the Walker Basin Parcels for
approximately $3,371,000 USD.
“MOTION TO STRIKE NO. 7:
Ҧ 86, p. 22:3-67 (italicized portion only) [sic]:
“86. A May 8, 2000 appraisal of the same
Walker Basin Parcels prepared for DFC
valued the Walker Basin Parcels at
$19,600,000 USD. Thus, the purchase
price Beresford was able to obtain for the
Walker Basin Parcels at the March 20,
2012 tax sale represented a significant
discount on the value of the property.
“MOTION TO STRIKE NO. 8:
Ҧ 87, p. 22:7-8:
“87. The tax sale had the effect of
extinguishing the Walker Basin Deed of
Trust—i.e., Boster’s lien on the Walker
Basin Parcels.
“MOTION TO STRIKE NO. 9:
Ҧ 89, p. 22:12-16 (italicized portion only) [sic]:
“89. Upon information and belief,
Cambridge and Beresford knew at least
as early as 2015 that the 2012 tax sale
had the effect of extinguishing the
Walker Basin Deed of Trust. Further,
Boster believes and therefore alleges that
Cambridge and Beresford knew at the
time of the tax sale that the sale would
extinguish the Walker Basin Deed of
Trust and with it, Boster’s lien on the
Walker Basin Parcels.
35
“MOTION TO STRIKE NO. 10:
Ҧ 90, p. 22: 17-23 (italicized portion only) [sic]:
“90. Upon information and belief,
Beresford is still the current owner of the
Walker Basin Parcels. In or around 2016,
Beresford submitted a project proposal to
the Riverside County Planning
Department General Plan Advisory
Committee to develop the Walker Basin
Parcels, requesting, among other things,
that the area be redesigned from ‘Open
Space’ to ‘Community Development,’ and
that the land use designation for at least
some of the Walker Basin Parcels be
changed from ‘Recreation’ to ‘Commercial
[]Retail.’ Upon information and belief,
Beresford continues to pursue this
development project on the Walker Basin
Parcels. [¶] . . . [¶]
“MOTION TO STRIKE NO.16:
Ҧ 125, p. 30:2-6:
“125. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford intentionally acted to
disrupt Boster’s economic relationship
with DFC.
“MOTION TO STRIKE NO.17:
Ҧ 125, p. 30:2-6:
36
“125. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford intentionally acted to
disrupt Boster’s economic relationship
with DFC. [Sic.] [¶] . . . [¶]
“MOTION TO STRIKE NO. 19:
Ҧ 127, P. 30:9-12 (italicized portion only) [sic]:
“127. As a proximate result of Sabella,
Cambridge and Beresford’s actions
described above, Boster suffered damages
in an amount subject to proof at trial,
insofar as the security for its interest in
the Participation Agreement was
released, extinguished or subordinated,
and it never received payment stemming
from these proceeds of collateral.
[¶] . . . [¶]
“MOTION TO STRIKE NO. 21:
Ҧ 134, p 31:10-13 [sic]:
“134. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford negligently acted to
disrupt Boster’s economic relationship
with DFC.
37
“MOTION TO STRIKE NO. 22:
Ҧ 134. p 31:10-13 [sic]:
“134. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford negligently acted to
disrupt Boster’s economic relationship
with DFC. [¶] . . . [¶]
“MOTION TO STRIKE NO. 24:
Ҧ 142, P. 32:13-17 [sic]:
“142. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford intentionally acted
with a design to induce DFC’s breach of
the Participation Agreement and the
disruption of DFC’s and Boster’s
contractual relationship.
“MOTION TO STRIKE NO. 25:
Ҧ 142, P. 32:13-17 [sic]:
“142. By pursuing creditor claims against
VLUSA, VLRC, and VLVR in the Vail
Lake Bankruptcy, settling those claims in
the Vail Lake Bankruptcy, selling the
underlying Vail Lake Parcels to RCWD,
38
and purchasing the Walker Basin Parcels
at the March 20, 2012 Riverside County
tax sale, Beresford intentionally acted
with a design to induce DFC’s breach of
the Participation Agreement and the
disruption of DFC’s and Boster’s
contractual relationship. [¶] . . . [¶]
“MOTION TO STRIKE NO. 29:
Ҧ 149, p 33:20-p. 34:24 [sic]:
“149. DFC, Sabella, Beresford and
Cambridge each committed wrongful acts
pursuant to that agreement and design
by causing and pursuing the release,
extinguishment, and subordination of the
security for the RCCC Note to Boster’s
detriment. Specifically:
“a. By allowing the Walker Basin
Deed of Trust to be extinguished and
released in a March 2012 tax sale,
partially releasing and subordinating the
North Plaza Deed of Trust, assigning the
North Plaza Deed of Trust to a third
party, releasing the VLRC Deed of Trust,
releasing the VLUSA Deed of Trust and
the Amended VLUSA Deed of Trust, and
releasing the VLVR Deed of Trust and
the Amended VLVR Deed of Trust—all
without once notifying Boster or
obtaining its consent—DFC breached the
Participation Agreement, breached the
covenant of good faith and fair dealing,
converted Boster’s interest in the
Participation Agreement, and
fraudulently concealed these actions and
their effects from Boster. Therefore, DFC
39
committed wrongful acts pursuant to the
agreement and design described above.
“b. By orchestrating each of the
other Defendants’ roles in the APSL
transaction and the Walker Basin Tax
Sale, and by using the security for the
RCCC Note provided by the VLUSA Deed
of Trust, VLRC Deed of Trust, and VLVR
Deed of Trust to provide security for the
Sabella Loans in which Boster had no
participation, Sabella intentionally
and/or negligently interfered with
Boster’s prospective economic advantage
and intentionally interfered with Boster
and DFC’s contractual relations, and
therefore committed wrongful acts
pursuant to the agreement and design
described above.
“c. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement, pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy, and
selling the underlying Vail Lake Parcels
to RCWD, Cambridge intentionally
and/or negligently interfered with
Boster’s prospective economic advantage
and intentionally interfered with Boster
and DFC’s contractual relations, and
therefore committed wrongful acts
pursuant to the agreement and design
described above.
“d. By pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
40
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy,
selling the underlying Vail Lake Parcels
to RCWD, and purchasing the Walker
Basin Parcels at the March 20, 2012
Riverside County tax sale, Beresford
intentionally and/or negligently
interfered with Boster’s prospective
economic advantage and intentionally
interfered with Boster and DFC’s
contractual relations, and therefore
committed wrongful acts pursuant to the
agreement and design described above.
“MOTION TO STRIKE NO. 30:
Ҧ 149, p 33:20-p. 34:24 [sic]:
“149. DFC, Sabella, Beresford and
Cambridge each committed wrongful acts
pursuant to that agreement and design
by causing and pursuing the release,
extinguishment, and subordination of the
security for the RCCC Note to Boster's
detriment. Specifically:
“a. By allowing the Walker Basin
Deed of Trust to be extinguished and
released in a March 2012 tax sale,
partially releasing and subordinating the
North Plaza Deed of Trust, assigning the
North Plaza Deed of Trust to a third
party, releasing the VLRC Deed of Trust,
releasing the VLUSA Deed of Trust and
the Amended VLUSA Deed of Trust, and
releasing the VLVR Deed of Trust and
the Amended VLVR Deed of Trust—all
without once notifying Boster or
obtaining its consent—DFC breached the
41
Participation Agreement, breached the
covenant of good faith and fair dealing,
converted Boster’s interest in the
Participation Agreement, and
fraudulently concealed these actions and
their effects from Boster. Therefore, DFC
committed wrongful acts pursuant to the
agreement and design described above.
“b. By orchestrating each of the
other Defendants' roles in the APSL
transaction and the Walker Basin Tax
Sale, and by using the security for the
RCCC Note provided by the VLUSA Deed
of Trust, VLRC Deed of Trust, and VLVR
Deed of Trust to provide security for the
Sabella Loans in which Boster had no
participation, Sabella intentionally
and/or negligently interfered with
Boster’s prospective economic advantage
and intentionally interfered with Boster
and DFC’s contractual relations, and
therefore committed wrongful acts
pursuant to the agreement and design
described above.
“c. By purchasing the DFC/Sabella
Loans pursuant to the Cambridge
Agreement, pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy, and
selling the underlying Vail Lake Parcels
to RCWD, Cambridge intentionally
and/or negligently interfered with
Boster’s prospective economic advantage
and intentionally interfered with Boster
and DFC’s contractual relations, and
42
therefore committed wrongful acts
pursuant to the agreement and design
described above.
“d. By pursuing creditor claims
against VLUSA, VLRC, and VLVR in the
Vail Lake Bankruptcy, settling those
claims in the Vail Lake Bankruptcy,
selling the underlying Vail Lake Parcels
to RCWD, and purchasing the Walker
Basin Parcels at the March 20, 2012
Riverside County tax sale, Beresford
intentionally and/or negligently
interfered with Boster’s prospective
economic advantage and intentionally
interfered with Boster and DFC’s
contractual relations, and therefore
committed wrongful acts pursuant to the
agreement and design described above.
[Sic.] [¶] . . . [¶]
“MOTION TO STRIKE NO. 32:
Ҧ 155, p. 35:17-20 (to the extent based on
actions by Beresford in the Vail Lake Bankruptcy):
“• 155. As alleged herein, Beresford
intentionally and/or negligently interfered with
Boster’s prospective economic advantage and
intentionally interfered with Boster and DFC’s
contractual relations. Sabella and Cambridge each
knew of these wrongful and tortious acts by
Beresford, and substantially assisted and/or
encouraged them.
“MOTION TO STRIKE NO. 33:
Ҧ 155, p. 35:17-20 (to the extent based on
actions by Beresford in the Vail Lake Bankruptcy):
43
“•155. As alleged herein, Beresford
intentionally and/or negligently interfered with
Boster’s prospective economic advantage and
intentionally interfered with Boster and DFC’s
contractual relations. Sabella and Cambridge each
knew of these wrongful and tortious acts by
Beresford, and substantially assisted and/or
encouraged them. [Sic.] [¶] . . . [¶]
“MOTION TO STRIKE NO. 36:
Ҧ 160, p. 36:21-22:
“160. Boster incorporates by reference the
allegations of paragraphs 1 through 159,
inclusive, as though set forth in full at
this point.
“MOTION TO STRIKE NO. 37:
Ҧ 163, p. 37:1-5:
“163. Thus, the RCCC Note, in
conjunction with the Participation
Agreement, indicate an intention on the
part of Boster, DFC, and RCCC to make
the underlying Walker Basin Parcels
security for RCCC’s debt under the RCCC
Note and security for DFC’s obligations
under the Participation Agreement,
creating an equitable lien upon the
Walker Basin Parcels in Boster’s favor.
“MOTION TO STRIKE NO. 38:
Ҧ 164, p. 37:6-15:
“164. In contravention of that intent,
DFC, Sabella, Beresford and the
principals of Cambridge agreed and
conspired to allow the Walker Basin
Parcels to be sold at the March 20, 2012
44
Riverside County tax sale due to their
delinquent tax status so that Beresford
could purchase the Parcels at a
significant discount relative to their
market value. Despite having actual
knowledge of Boster’s interest in the
Walker Basin Parcels immediately prior
to the tax sale, DFC never told Boster
about the sale and in fact, knowingly
allowed Boster’s legal lien on the Parcels
to be extinguished at the tax sale. Nor
did DFC ever inform Boster about the tax
sale after it had occurred—despite DFC’s
attempts to collect the excess proceeds of
the sale from Riverside County after
Boster sent its second demand letter
regarding the Participation
Agreement and after the original
complaint in this action was filed.
“MOTION TO STRIKE NO. 39:
Ҧ 165, p. -37:16-22 [sic]:
“165. In the years since Boster’s legal lien
on the Walker Basin Parcels was
extinguished at the tax sale, Beresford
has continued its efforts to build a major
residential development at the site,
applying for and receiving from the
County of Riverside approval to develop
multiple single-family lots on the
approximately 70 acres of land that
comprise the Walker Basin Parcels.
Beresford, and upon information and
belief, its business partners DFC,
Sabella, and Cambridge, stand to
substantially profit from the development
45
of the Walker Basin Parcels upon
completion of the project.”
Boster opposed the motions.
Trial court decision
The trial court heard argument on the motions over the
span of four days. All four motions were denied in their entirety.
As to DFC’s anti-SLAPP motion, the trial court denied it as
untimely. The court found that the allegations that DFC sought
to strike were contained in previous iterations of the complaint,
and counsel chose not to file an anti-SLAPP motion.
The court further found that appellants’ motions were
procedurally flawed. While the court agreed that Baral v. Schnitt
(2016) 1 Cal.5th 376 (Baral) allows a party to move to strike
parts of a count, it found that the Baral court also held that
seeking to strike piecemeal allegations is only appropriate if such
allegations “amount to a ‘cause of action’ in the sense that it is
alleged to justify a remedy.” (Id. at p. 395.) The trial court found
that the description in Baral did not fit the allegations
defendants sought to strike in their motions. The court found
that the motions set forth an improper “‘line item veto’” that was
confusing and ambiguous.
The court found that the motions also failed substantively
under the first prong of the anti-SLAPP analysis.11 Appellants
argued that they met the first prong of the anti-SLAPP analysis
because respondent’s allegations referred to matters that were
before the bankruptcy court. However, the court found that
respondent persuasively countered that argument by asserting
11 The court applied a similar analysis as to each of the four
motions to strike.
46
that the bankruptcies “were merely ‘steps’ or ‘devices’” through
which appellants “sought to accomplish an improper purpose.”
Further, respondent was not complaining about appellants’ right
to petition or engage in free speech, but the outcome of those
proceedings. For example, “that DFC allocated a multimillion
dollar payout in a particular way (North Plaza) and released
Boster’s security without Boster’s knowledge (Vail Lake).”
Because appellants’ motions failed on the first prong of the
anti-SLAPP analysis, the court found it need not reach the
second prong. However, as to DFC’s and Sabella’s motions, the
court noted that if it were to reach the second prong of the
analysis, it would find that respondent set forth a prima facie
case sufficient to survive the second prong analysis.
Appeals and consolidation
On June 30, 2021, appellants filed four separate notices of
appeal. On March 14, 2002, this court ordered the appeals
consolidated.
DISCUSSION
I. Applicable law and standard of review
A. General law
Section 425.16 was enacted “to provide for the early
dismissal of unmeritorious claims filed to interfere with the valid
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.” (Club Members for an
Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.)
Subdivision (b)(1) of section 425.16 provides: “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
47
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.”
Determining whether section 425.16 bars a given cause of
action requires a two-step analysis. (Navellier v. Sletten (2002)
29 Cal.4th 82, 88 (Navellier).) First, the court must decide
whether the party moving to strike a cause of action has made a
threshold showing that the cause of action “aris[es] from any
act . . . in furtherance of the [moving party’s] right of petition or
free speech.” (§ 425.16, subd. (b)(1); see Navellier, supra, at
p. 88.) “‘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.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
In determining whether the moving party has met its
burden of establishing that the challenged allegations arise from
protected activity, the court should “consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Park v.
Trustees of California State University (2017) 2 Cal.5th 1057,
1061 (Park).) A claim may be stricken under section 425.16 “‘only
if the speech or petitioning activity itself is the wrong complained
of, and not just evidence of liability or a step leading to some
different act for which liability is asserted.’” (Bonni v. St. Joseph
Health System (2021) 11 Cal.5th 995, 1014 (Bonni).) “‘Allegations
of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.’” (Id. at p. 1012, quoting Baral, supra, 1
48
Cal.5th at p. 394.) “‘If the core injury-producing conduct upon
which the plaintiff’s claim is premised does not rest on protected
speech or petitioning activity, collateral or incidental allusions to
protected activity will not trigger application of the anti-SLAPP
statute.’” (Area 51 Productions, Inc. v. City of Alameda (2018) 20
Cal.App.5th 581, 594 (Area 51).) Thus, “[i]t is insufficient for
protected activity to be ‘a step leading to some different act for
which liability is asserted’ . . . .” (Wong v. Wong (2019) 43
Cal.App.5th 358, 365 (Wong).)
Generally, claims arising from actions that were taken as
part of, or related to, a bankruptcy proceeding may be stricken
under the anti-SLAPP statute. (Crossroads Investors, L.P. v.
Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 765-
766 (Crossroads).) In Crossroads, the parties agreed that the
plaintiffs’ claims arose from the defendant’s acts of failing to
provide timely and accurate accounting requested through the
bankruptcy proceeding; refusals to accept the plaintiff’s tenders
of the amount required to cure the default, where the tenders
were also made in connection with an issue under consideration
by the bankruptcy court; and statements made as part of an
effort to settle the bankruptcy action. (Id. at pp. 777-785.) Thus,
where actions taken as a part of a bankruptcy proceeding supply
the elements of a plaintiff’s claim, the claim arises from protected
activity and is subject to being stricken under the anti-SLAPP
provision. (Id. at p. 781; see Cheveldave v. Tri Palms Unified
Owners Assn. (2018) 27 Cal.App.5th 1202, 1208-1214 [complaint
was based on protected activity where the act complained of was
the act of entering into a settlement agreement].)
If the court finds that a defendant has made the requisite
threshold showing that the claim is based on protected activity,
49
the burden then shifts to the plaintiff to demonstrate a
“probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1); see Navellier, supra, 29 Cal.4th at p. 88.)
In order to demonstrate a probability of prevailing, a party
opposing a special motion to strike under section 425.16 “‘“must
demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is
credited.”’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 741.)
A trial court’s order denying a motion under section 425.16
is reviewed de novo. (Park, supra, 2 Cal.5th at p. 1067.)
B. Law regarding mixed allegations
It is the moving party’s burden to establish that the
challenged allegations or claims arise from protected activity in
which the defendant has engaged. (Bonni, supra, 11 Cal.5th at
p. 1009.) Where a complaint alleges both protected and
unprotected conduct, the moving defendant must “identify the
acts alleged in the complaint that it asserts are protected and
what claims for relief are predicated on them.” (Id. at p. 1010.)
The court should then “examine whether those acts are protected
and supply the basis for any claims.” (Ibid.)
Where allegations surrounding court proceedings are
alleged as part of a larger plan to deprive a plaintiff of assets,
they are not properly stricken under the anti-SLAPP statute.
(Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 869-870 (Gaynor).)
In Gaynor, the plaintiffs, who were beneficiaries of a trust,
alleged breach of fiduciary duty against a de facto trustee,
claiming that the defendant took actions that would wrongfully
benefit the senior beneficiaries of the trust to the detriment of
50
junior beneficiaries. (Id. at p. 879.) The plaintiffs alleged some
wrongful acts that were clearly not protected under section
425.16, such as “unfair and self-serving income-distribution
decisions, . . . improper transfer of . . . property . . . , [and]
plan[ning] to alter the Trust provisions in a manner that would
benefit only the senior beneficiaries.” (Gaynor, at p. 879.)
However, the defendant sought to strike paragraphs of the
petition alleging that the trustees wasted assets on probate
litigation. (Ibid.) The Gaynor court denied the defendant’s
special motion to strike, finding that “the allegation that Trust
assets were improperly used on the probate litigation was not a
separate legal claim, but merely reflected the manner in which
the Cotrustees and [defendant] implemented their alleged
wrongful plan to alter the trustee succession rules to favor their
own interests.” (Ibid.)
Thus, appellants’ burden is to show that Boster’s
allegations concerning the bankruptcies (and tax sale) form the
elements of the claims against them. (Crossroads, supra, 13
Cal.App.5th at p. 781.) Where such allegations merely form part
of a larger plan to deprive the plaintiff of assets, they are not
subject to being stricken under section 425.16. (Gaynor, supra,
19 Cal.App.5th at pp. 879-880.)
We note, as Boster points out, that appellants make no
effort to show that Boster’s allegations form the elements of the
causes of action alleged against them. Appellants have not set
forth the elements of the individual causes of action, nor
attempted to explain how the allegations concerning the
bankruptcies form the essential elements of these claims. For
this reason alone, appellants have failed to meet their burden
under the first prong of section 425.16. However, as set forth
51
below, we find that Boster’s claims do not arise from appellants’
actions in the bankruptcy proceedings, but instead, those
allegations merely provide context for the greater scheme alleged.
In the greater scheme alleged, Boster contends that appellants
engaged in transactions both prior to and following the
bankruptcies and tax sale, which were designed to evade Boster’s
claims as a creditor of DFC with a financial interest in the
underlying properties.
II. Scope of review
DFC does not challenge the trial court’s decision that DFC
could not specially move to strike allegations from the causes of
action that were previously pled against DFC. Generally, an
anti-SLAPP motion must be brought within 60 days of service of
the complaint. (§ 425.16, subd. (f).) Because Boster asserted
most of its claims against DFC in previous iterations of the
complaint, DFC’s special motion to strike is untimely as to those
claims. However, DFC argues that its motion timely attacked the
claims incorporated into the newly pled eighth cause of action for
civil conspiracy. A defendant may “attack newly pled legal
claims, whether or not based on existing allegations of protected
activity.” (Starview Property, LLC v. Lee (2019) 41 Cal.App.5th
203, 212.) While Boster does not contest that DFC’s motion to
strike is timely as to the eighth cause of action, Boster argues
that DFC cannot specially move to strike the allegations from the
previously pleaded causes of action. Boster contends that we
should consider DFC’s arguments only as they pertain to the new
factual allegations underpinning the eighth cause of action.
DFC points out that the eighth cause of action for civil
conspiracy—a new cause of action alleged against all four
appellants—contains a catch-all allegation stating, “Boster
52
incorporates by reference the allegations of paragraphs 1 through
145, inclusive, as though set forth in full at this point.” Thus,
DFC argues, the previously pled allegations were pled anew with
this new cause of action added in the most recent iteration of the
complaint. DFC argues that its motion was timely as to this
cause of action, thus all of the allegations previously pled, and
incorporated into this new cause of action, must be considered.
We find that we need not address the trial court’s decision
regarding timeliness as to DFC concerning the eighth cause of
action because appellants’ motions fail at the first prong of the
anti-SLAPP analysis.
We therefore address all the contested allegations. We
organize the analysis, as appellants have done, by the triggering
event.12
12 Appellants point out that the trial court also held that their
motions were procedurally improper, as they challenged only
“bits and pieces of various allegations” in the SASC. The court
expressed confusion as to what exactly the appellants were
seeking to strike, noting that the motions were “nonsensical and
impossible to rule upon.” Appellants argue that the trial court
erred in denying the four motions on procedural grounds. While
Baral, supra, 1 Cal.5th at page 395 permits a defendant to strike
allegations of protected conduct within a certain cause of action,
those allegations of protected activity must be “asserted as
grounds for relief.” As set forth below in detail, the portions of
the SASC that appellants sought to strike did not form the basis
for any claim for relief, nor have appellants argued that they did.
Therefore the court’s dismissal of the motions as improper “line-
item veto[s]” was not in error in the context of this case.
However, we decline address the procedural issue further, and
instead affirm the trial court based on appellants’ failure to show
53
III. The bankruptcies
A. North Plaza allegations
The North Plaza allegations concern DFC and Sabella. The
SASC alleges that, years before the North Plaza involuntary
bankruptcy, DFC recorded a partial release of the North Plaza
deed of trust which negated Boster’s security interest, without
informing Boster or sharing any proceeds of collateral obtained
from the release. Subsequently, DFC recorded a correction of the
partial release of the North Plaza deed of trust with respect to
only a portion of this property—again without Boster’s knowledge
or consent. In addition, before the bankruptcy proceedings
began, DFC and Sabella increased their direct loans to North
Plaza that formed the basis for their claim 16 in the bankruptcy
proceedings and took priority over Boster’s interest.
Thus, Boster’s claims against DFC and Sabella regarding
the North Plaza deed of trust arise from appellants’ actions to
subordinate and deprioritize Boster’s interest in the underlying
property—in essence, their actions to avoid repaying Boster’s
investment. After DFC and Sabella allegedly began this scheme
to ensure that Boster did not recoup on its investment, North
Plaza was forced into involuntary bankruptcy. DFC filed claims
and received $10.5 million pursuant to a settlement with the
bankruptcy trustee. In return, DFC assigned to the trustee all of
its interest under the North Plaza deed of trust. DFC did not pay
any of the $10.5 million settlement to Boster.
Pursuant to these allegations, DFC’s participation in the
North Plaza bankruptcy itself is not the wrong complained of.
that the alleged protected activity at issue gave rise to any of
Boster’s claims for relief. (Ibid.)
54
Boster does not fault DFC for filing claims in the bankruptcy, nor
for settling with the bankruptcy trustee. Instead, Boster’s claims
against DFC for breach of contract, breach of the covenant of
good faith and fair dealing, conversion, fraudulent concealment,
civil conspiracy, and equitable mortgage are based on appellants’
acts of allegedly derogating Boster’s interest in the collateral at
issue, not informing Boster of the deprioritization of its collateral,
and not paying Boster any portion of the proceeds appellants
ultimately received. Thus, the allegations concerning the North
Plaza bankruptcy are not properly stricken under section 425.16.
(Bonni, supra, 11 Cal.5th at p. 1014 [allegations may be stricken
“‘only if the speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted’”].)
Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th
1388 is instructive. In Optional Capital, the plaintiff (Optional)
alleged a conspiracy among the defendants to take control of
Optional and use their fiduciary positions to loot the company
and manipulate its stock. (Id. at p. 1393.) Various legal
proceedings commenced, and forfeiture proceedings led to the
Swiss government freezing Optional’s funds held in a Credit
Suisse Bank in Geneva, Switzerland. (Id. at p. 1394.) The
defendants filed an anti-SLAPP motion arguing that Optional’s
complaint for conversion and fraudulent conveyance arose from
the settlement of litigation that resulted in the release of the
funds from Credit Suisse Bank, and the settlement was protected
activity within the meaning of section 425.16. (Optional Capital,
at p. 1396.) The trial court agreed, but the Optional Capital
court reversed, finding that Optional’s claims did not arise from
protected activity. (Id. at pp. 1398-1399.) The court explained:
55
“Here, Optional’s complaint seeks to recover monies looted from it
and wrongfully obtained by [defendants] from the Credit Suisse
account. The only connection between the settlement in the . . .
superior court litigation and Optional’s claims here is that the
settlement was used as a device to permit [defendants] to
persuade the Swiss government to release the funds, thereby
depriving Optional of funds to satisfy its judgment.” (Id. at
pp. 1400-1401.)
Similarly, here, Boster seeks to recover money owed to it
through the PA, which, Boster claims, was wrongfully converted
through the various transactions alleged. The North Plaza
bankruptcy was a collateral event that occurred during the
defendants’ scheme, which allowed DFC and Sabella to receive
money on subsequent loans they made in derogation of Boster’s
interest. However, DFC’s acts of filing claims in the bankruptcy
and settling with the bankruptcy trustee, do not form the basis of
any of Boster’s claims. Instead, DFC and Sabella’s allegedly
wrongful acts, including making senior loans, receiving money
without compensating Boster under the PA, and failing to inform
Boster of the events that derogated its interest—all of which were
allegedly in breach of the PA—form the basis of Boster’s claims.
O&C Creditors Group, LLC v. Stephens & Stephens XII,
LLC (2019) 42 Cal.App.5th 546 (O&C Creditors) is
distinguishable. O&C Creditors involved a settlement between
certain lawyers and their insurance company in an insurance
coverage dispute. The written settlement agreement “expressly
determined the allocation of the settlement proceeds.” (Id. at
p. 555.) The trial court granted an anti-SLAPP motion in
subsequent litigation that targeted two causes of action: “a claim
for breach of trust against [the insurance company for] failing to
56
advise the bankruptcy court of the . . . settlement and ‘secretly
disbursing’ the proceeds of the settlement” and a claim for
interference with prospective business relations based on the
same conduct. (Id. at p. 559.) Under these circumstances, the
O&C Creditors court found that the challenged claims “‘rely on’
and arise from the allegedly wrongful acts of settling the case . . .
and thereafter effectuating that settlement . . . in accordance
with the protected agreement.” (Id. at p. 573.) The O&C
Creditors court thus agreed that “the challenged [claims] are
founded upon and would not exist in absence of the protected
settlement activity; the [claims] thus ‘“arise from”’ and are
‘“based on”’ the settlement agreement, making them subject to
the provisions of the anti-SLAPP statute.” (Id. at p. 567.)13
Here, in contrast, Boster’s claims would exist in the
absence of appellants’ actions in the bankruptcy proceedings.
Boster’s allegations regarding appellants’ alleged wrongful
13 We reject appellants’ argument that Boster’s prong 1
arguments that the actions of appellants in the bankruptcies
were wrongful is, in fact, a prong 2 argument going to the merits
of Boster’s causes of action. In support of this argument,
appellants cite O&C Creditors, supra, 42 Cal.App.5th at page
574, which stated that “O&C Creditors’ argument—that cross-
defendants agreed to an improper settlement—goes to the merits
and, thus, is ‘“an issue which [it] must raise and support in the
context of the discharge of [its] burden to provide a prima facie
showing of the merits of [its] case.”’” As set forth above, unlike in
O&C Creditors, Boster’s claims are not based on protected
activity. Boster is not suing appellants for their act of settling
with the bankruptcy trustee. Instead, Boster alleges appellants’
actions in the bankruptcy proceedings were part of a larger
scheme to deprive Boster of security interests. Thus, we do not
reach prong 2 of the test.
57
actions begin years prior to the bankruptcy, when appellants
released the collateral for Boster’s loan, reinstated it years later
as to only a small parcel of the property, and increased their
separate loans in derogation of Boster’s interest. The actions
appellants took in North Plaza’s involuntary bankruptcy are not,
alone, the basis for Boster’s claims. They were merely steps that
appellants took to carry out the larger scheme to deprive Boster
of money to which it was allegedly entitled.
“‘[C]ollateral or incidental allusions to protected activity
will not trigger application of the anti-SLAPP statute.’” (Area 51,
supra, 20 Cal.App.5th at p. 594.) Appellants’ alleged activity in
the bankruptcy proceedings were merely “‘step[s] leading to some
different act for which liability is asserted.’” (Wong, supra, 43
Cal.App.5th at p. 365.) As such, the anti-SLAPP motions brought
concerning allegations surrounding the North Plaza bankruptcy
were properly denied under the first prong of the anti-SLAPP
analysis.
B. Vail Lake allegations
Appellants also assert that Boster asserted claims that
were “inextricably tied” to DFC’s actions in the Vail Lake
bankruptcy. Again, appellants do not make any effort to assert
which specific elements of which specific causes of action these
bankruptcy-related actions formed. Instead, they argue generally
that the August 2014 reconveyances of the VLUSA and VLVR
liens were “part and parcel of DFC’s acquiescence in the
treatment of these liens as part of the claims process that led the
August 8, 2014, bankruptcy court order . . . approving the sale of
the Vail Lake properties secured by the DFC/Sabella loans, free
and clear of all liens, including the Boster-claimed VLUSA and
VLVR Junior Liens.” Appellants generally allege that all actions
58
supposedly causing injury to Boster occurred in the bankruptcy
proceeding.
The allegations do not support appellants’ vague assertion
that the causes of action at issue arise from acts that took place
in the context of the Vail Lake bankruptcy proceeding. As with
the North Plaza bankruptcy, the Vail Lake bankruptcy was
merely incidental to Boster’s overall claims regarding appellants’
scheme to undermine Boster’s security interest in certain
property. The SASC alleges that appellants accomplished this
through a series of transactions, recordings, releases, and re-
recordings—all without Boster’s knowledge or consent—that
ultimately eliminated the security interest entirely. DFC and
Sabella sold their own loans to Cambridge, which allowed DFC
and Sabella to receive compensation for their loans prior to the
Vail Lake bankruptcy. DFC and Sabella did not include the loan
in which Boster had an interest and did not inform Boster that
DFC was receiving compensation for its other Vail Lake-related
loans. The loan sale placed Cambridge in a position to ultimately
own the Vail Lake properties free and clear of Boster’s interest.
This alleged series of transactions began well before the 2012 and
2013 Vail Lake bankruptcies.
On the same day that they entered a settlement agreement
with the Vail Lake bankruptcy debtors to receive the underlying
real estate parcels in exchange for a release of their claims,
Cambridge and Beresford entered an agreement to sell the land
to RCWD. The timing of the sale, following immediately after
their acquisition of the land, suggests that it was deliberately
planned as part of the alleged larger scheme to eliminate Boster’s
interest to the benefit of appellants. Following the sale,
59
Cambridge channeled the proceeds to DFC and Sabella. Boster
received nothing.
The allegations surrounding appellants’ actions in the Vail
Lake bankruptcy do not form the basis of Boster’s claims against
appellants. None of appellants’ actions in the bankruptcy
proceedings “supply the elements” of any cause of action. (Bonni,
supra, 11 Cal.5th at p. 1012.) Instead, the bankruptcy
proceedings are “incidental background” that “merely provide
context, without supporting a claim for recovery.” (Ibid.) Thus,
they are not properly stricken under the anti-SLAPP statute.
(Ibid.)
IV. The tax sale
Beresford seeks to strike the allegations concerning the
Walker Basin tax sale. Beresford asserts that it has found no
published case addressing whether a citizen’s participation in a
county’s public sale of tax-defaulted real property is a protected
activity under section 425.16. However, Beresford argues that
participation in a tax sale should be considered protected activity.
Beresford argues that bidding on a tax sale property is an act of
free speech within the protection of the statute.
We find that we need not decide whether a tax sale
constitutes protected activity because, even if it does, the
allegations concerning Beresford’s participation in the tax sale in
this matter do not supply the elements of any of Boster’s causes
of action. Boster is not seeking to hold Beresford liable for its act
of bidding at the tax sale. Instead, Beresford is alleged to have
engaged in a course of conduct predating the tax sale that
affected Boster’s interest in the Walker Basin property.
The RCCC note—in which Boster took a 99 percent interest
under the PA—was expressly secured, in part, by the Walker
60
Basin deed of trust. Although DFC received notice that the taxes
were delinquent on the Walker Basin property and that the
property would be sold at an upcoming county tax sale, DFC did
not inform Boster nor make any effort to prevent the tax sale
from occurring. Instead, DFC and Sabella informed Beresford
and Cambridge of the upcoming tax sale, and Beresford
purchased the property at a significant discount. It was not
Beresford’s purchase of the property at the tax sale that formed
the basis of Boster’s relevant causes of action, but the fact that
through the acts of DFC, Sabella, and Beresford, Boster’s lien on
the Walker Basin property was extinguished. Further, no
recovery of funds stemming from the Walker Basin deed of trust,
the tax sale, or DFC’s claim for excess proceeds, were ever shared
with Boster. Through these collective actions, Boster alleges that
DFC and Sabella orchestrated a scheme to deprive Boster of its
interest in the RCCC note, with knowledge that such actions
constituted a breach of DFC’s obligations under the PA.
As with the bankruptcies, Beresford’s participation in the
tax sale does not form the basis of Boster’s claims against
Beresford. Instead, Beresford is alleged to have engaged in a
course of conduct predating the tax sale that affected Boster’s
interest not only in the Walker Basin parcels but also in the Vail
Lake properties. Together with DFC and Sabella, Beresford is
alleged to have engaged in a comprehensive scheme to deprive
Boster of its security interests in the various properties, including
Walker Basin. Beresford is alleged to have known, before it bid,
that the sale would result in the extinguishment of Boster’s
security interest in the Walker Basin property. According to the
allegations, the decade-long scheme would have progressed even
if the tax sale had not occurred.
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Appellants have failed to demonstrate error in the trial
court’s determination that none of the causes of action raised in
the four anti-SLAPP motions arise from protected activity.
Because appellants have failed to meet their burden under the
first prong of the anti-SLAPP analysis, we decline to address the
second prong.
DISPOSITION
The orders denying the special motions to strike are
affirmed. Respondent is awarded its costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
62