Park v. Nazari

Filed 7/25/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHOP WON PARK et al., B320483
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No.
v. 19STCV20545)
KELLY NAZARI et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Stuart M. Rice, Judge. Affirmed.
Law Offices of Yousef Monadjemi and Yousef Monadjemi;
Raskin Gorham Anderson Law and Lucy Mekhael for Defendants
and Appellants.
Spainhour Law Group and Kevin A. Spainhour for
Plaintiffs and Respondents.
*
Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, all but Part II.B of this opinion is certified for publication.
After obtaining a judgment against defendants Kelly
Nazari (Kelly) and Shariar Nazari (Shariar)1 (collectively, the
Nazaris) in a prior case, plaintiffs Chop Won Park (Park) and
Bonnie Nguyen (Nguyen) (collectively, plaintiffs) filed this action
against the Nazaris, their attorney, and others for fraudulent
transfer, quiet title, and declaratory relief. The Nazaris filed a
special motion to strike the entire complaint pursuant to the anti-
SLAPP statute (Code Civ. Proc.,2 § 425.16). In this appeal from
the denial of the Nazaris’ motion, we principally consider
whether the trial court erred in ruling the Nazaris failed to meet
their initial burden of identifying all allegations of protected
activity and the claims for relief supported by them. We also
consider whether the trial court’s earlier order granting the
Nazaris’ attorney’s anti-SLAPP motion compels the same
outcome here.
I. BACKGROUND
A. Prior Litigation
Park, Nguyen, and others formed True World, LLC (True
World) to purchase a truck stop and land from the Nazaris and
others in 2008. When True World failed to make monthly
mortgage payments, the Nazaris foreclosed.
Park and True World sued the Nazaris and others for
(among other things) fraud, negligent misrepresentation, and
1
We adopt the spelling of Shariar’s name used in his
respondent’s brief. Several alternative spellings appear in the
record, including Shahriar, Shshriar, and Shawn.
2
Undesignated statutory references that follow are to the
Code of Civil Procedure.
breach of contract. Nguyen was a party to the litigation as a
defendant to one of several cross claims asserted by Kelly.
Following a jury trial, the trial court entered a judgment in
favor of Park, True World, and Nguyen. In a prior unpublished
opinion, the Court of Appeal reversed an award of pre-judgment
interest, but otherwise affirmed the judgment. The trial court
entered a second amended judgment in 2017 awarding Park
$251,713.99 from the Nazaris and other defendants; True World
$558,626.07 from the Nazaris and other defendants; Park
$100,000 from Shariar; and attorney fees and costs to Park, True
World, and Nguyen.
B. Plaintiffs’ Complaint for Fraudulent Transfer, Quiet
Title, and Declaratory Relief
Plaintiffs initiated this action against the Nazaris and
others in 2019. As we shall discuss in more detail, they challenge
certain transfers relating to the truck stop and the Nazaris’ home
in Chatsworth (assets in which plaintiffs have an interest as
judgment creditors) and they seek a declaration of their right to
access state funds to remedy environmental issues at the truck
stop.
Plaintiffs allege that after the jury returned its verdict in
the prior litigation, but before the trial court entered judgment,
the Nazaris’ attorney in that litigation recorded liens against
both the truck stop and the Chatsworth residence.3 The attorney,
3
Kelly had executed promissory notes for $100,000 (secured
by a deed of trust on the truck stop) and $250,000 (secured by a
deed of trust on the Chatsworth residence) for the law firm’s
services in the prior litigation.
3
David G. Torres-Siegrist (Torres-Siegrist), was then a partner in
the law firm of Carpenter, Rothans & Dumont (the law firm).
After Torres-Siegrist recorded the liens, plaintiffs executed on the
judgment and (once again) took title to the truck stop. Torres-
Siegrist subsequently “transferred or assigned some of the rights
to” the lien against the truck stop to Albert Oganesyan
(Oganesyan), who noticed a trustee sale.
Plaintiffs allege the promissory notes on which the liens
were predicated were fraudulent because the Nazaris did not owe
Torres-Siegrist or the law firm any attorney fees. They allege the
law firm represented the Nazaris on a contingency basis,
anticipating a percentage of any award on the Nazaris’ cross
claims in the prior litigation. Plaintiffs further allege Oganesyan
did not pay reasonable value for the truck stop lien and was
“acting as a strawman on behalf of the Nazari[s] . . . .” More
specifically, plaintiffs allege the foreclosure sale of the truck stop
was “a ruse orchestrated by the Nazari[s] . . . to regain title to the
[truck stop] by and through Oganesyan.”
Plaintiffs’ complaint seeks to set aside the transfers or, at a
minimum, obtain a determination that their title to the truck
stop and liens against the Chatsworth residence are superior to
the liens obtained by Torres-Siegrist and the law firm. In
addition to their allegations regarding the liens, plaintiffs allege
Shariar interfered with efforts to address soil contamination at
the truck stop and obtain funding from the State Water
Resources Control Board Underground Storage Tank Cleanup
Fund (the Fund). In a cause of action against the Nazaris, the
State Water Resources Control Board, and the local water board,
plaintiffs seek, among other things, a declaration that the right to
4
Fund assistance runs with the land and belongs to them as
owners in fee simple.
C. Torres-Siegrist’s Anti-SLAPP Motion
We first discuss Torres-Siegrist’s anti-SLAPP motion
because the Nazaris contend it has implications for their own
anti-SLAPP motion.
The trial court granted Torres-Siegrist’s motion in
November 2019. The court determined the claims against
Torres-Siegrist arose from protected activity because they were
“based on the payment [he] received from his clients in exchange
for legal services performed in another action. Broadly
construed, the anti-SLAPP statute encompasses this activity
because such payment is made in connection with a judicial
proceeding.” The trial court additionally concluded plaintiffs had
not satisfied their burden of demonstrating a probability of
success on the merits because the evidence indicated the disputed
transfers were not fraudulent, the fraudulent transfer claims
were barred by the litigation privilege in any case, and the
judgment in the prior action “did not affect title to, or possession
of the properties at issue . . . .”
Plaintiffs moved for reconsideration of this order and the
trial court denied the motion. Plaintiffs then noticed an appeal
from the trial court’s order, but this court dismissed that appeal
as untimely.4
4
The Nazaris’ request that we take judicial notice of the
order of dismissal is granted. (Evid. Code, §§ 452, subd. (a), 459,
subd. (a).)
5
D. The Nazaris’ Anti-SLAPP Motion
The Nazaris filed their anti-SLAPP motion a few weeks
after the trial court granted Torres-Siegrist’s anti-SLAPP motion.
Like Torres-Siegrist, they noticed their motion “for an order
striking each of [p]laintiff’s [c]omplaint [sic].” They argued “all of
[p]laintiffs’ claims arise from protected activity” because
“litigation funding decisions and any communications made in
connection with those decisions constitute statements or writings
‘made in connection with an issue under consideration or review
by a . . . judicial body’” for purposes of section 425.16, subdivision
(e)(2). Citing allegations in the complaint concerning Torres-
Siegrist and the law firm’s role in the prior litigation, the Nazaris
argued “the gravamen of the suit challenges a litigation funding
decision and the communications made in connection with that
decision.” With respect to the merits, the Nazaris raised many of
the same arguments the trial court discussed in its order
granting Torres-Siegrist’s motion and contended that order was
“entitled to collateral estoppel effect.”
At the hearing on the Nazaris’ anti-SLAPP motion, the
Nazaris’ attorney suggested the trial court could strike some of
plaintiffs’ claims even if it did not strike the complaint in its
entirety. The trial court observed the Nazaris “didn’t ask for
that” and, when the Nazaris’ attorney suggested they “[did not]
have to ask for that,” the trial court responded, “I’m supposed to
guess what you want? You made a motion that asks specifically
that the entire complaint be dismissed. . . . [¶] . . . [¶] [Y]ou
asked me to throw out the whole case. That’s what you asked me
for. . . . You moved to strike the entire complaint. It is only at
this moment that you’re now asking, ‘oh, no, no, if you’re not
6
going to throw out the complaint, throw out certain causes of
action.’ You did not seek that relief.”
The foregoing exchange reflects the gist of the trial court’s
written order denying the motion. The trial court emphasized
that, “[t]hroughout their papers, [the Nazaris] maintained that
the entire complaint arose from protected activity and requested
that the Court strike the complaint in its entirety.” (Boldface
omitted.) The Nazaris did not, however, demonstrate the
complaint, “in its entirety, ‘arises from’ their protected
activity . . . .” In addition to allegations concerning the transfers
to Torres-Siegrist, the complaint seeks relief based on the
Nazaris’ use of Oganesyan to regain ownership of the truck stop,
on the Nazaris’ claimed interest in the truck stop and the
Chatsworth residence, and on Shariar’s interference with efforts
to remedy environmental issues at the truck stop. The trial court
concluded none of this is protected activity, and collateral
estoppel does not apply because the allegations against the
Nazaris are “in no way limited” to those concerning Torres-
Siegrist.
The trial court declined the Nazaris’ belated request to
strike a more limited set of allegations and explained that
although “a court may grant a motion to strike individual
allegations of protected activity within a complaint or cause of
action,” no authority requires such an analysis “where the
movant has taken the position that the entire complaint arises
from protected activity and requests that the entire complaint be
stricken.” The trial court emphasized the Nazaris’ burden to
identify all allegations of protected activity and the claims for
relief supported by them. The court determined it had no
7
“freestanding obligation . . . to cure defects in an overbroad
motion.”
II. DISCUSSION
The trial court’s approach to the anti-SLAPP motion was
correct. As our Supreme Court has repeatedly emphasized, the
moving party bears the burden “to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009 (Bonni), citing Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson); accord Baral v. Schnitt (2016)
1 Cal.5th 376, 396 (Baral).) Because the Nazaris moved to strike
only the entire complaint, and did not identify in their motion
individual claims or allegations that should be stricken even if
the entire complaint were not, the trial court was permitted to
deny the anti-SLAPP motion once it concluded—correctly—that
the complaint presented at least one claim that did not arise from
anti-SLAPP protected conduct.
The Nazaris resist this only by suggesting the trial court
was compelled to grant their motion because it previously
granted Torres-Siegrist’s anti-SLAPP motion. Because the
claims against Torres-Siegrist differ from those asserted against
the Nazaris, however, the earlier ruling did not resolve identical
issues as required for collateral estoppel to apply.
8
A. The Trial Court Permissibly Chose to Deny the Anti-
SLAPP Motion Because the Entire Complaint Does
Not Arise from Protected Activity
The anti-SLAPP statute “authorizes a special motion to
strike a claim ‘arising from any act of [the moving party] in
furtherance of [the party’s] right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue.’ (§ 425.16, subd. (b)(1).)” (Wilson,
supra, 7 Cal.5th at 884.) “The anti-SLAPP statute does not
insulate defendants from any liability for claims arising from the
protected rights of petition or speech. It only provides a
procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Baral, supra, 1 Cal.5th at 384.)
“Litigation of an anti-SLAPP motion involves a two-step
process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e]
from” protected activity in which the defendant has engaged.’
[Citation.] Second, for each claim that does arise from protected
activity, the plaintiff must show the claim has ‘at least “minimal
merit.”’ [Citation.] If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni, supra, 11 Cal.5th at 1009.)
In Baral, our Supreme Court explained that “an anti-
SLAPP motion, like a conventional motion to strike, may be used
to attack parts of a count as pleaded.” (Baral, supra, 1 Cal.5th at
393.) But certain obligations fall on an anti-SLAPP movant
because this sort of surgical attack on a pleading is permitted. As
Baral explains, “At the first step, the moving defendant bears the
burden of identifying all allegations of protected activity, and the
claims for relief supported by them.” (Id. at 396.) This is crucial
because complaints frequently include claims arising from
9
protected activity alongside claims arising from unprotected
activity, as well as “so-called ‘mixed cause[s] of action’ that
combine[ ] allegations of activity protected by the statute with
allegations of unprotected activity[.]” (Id. at 381.)
Following Baral, “most Courts of Appeal have taken a
claim-by-claim approach to the anti-SLAPP analysis, rather than
attempting to evaluate a cause of action as a whole.” (Bonni,
supra, 11 Cal.5th at 1010.) In Bonni, our Supreme Court
considered the minority view that courts need not follow this
approach—and may instead analyze whether the “gravamen” of a
pleaded cause of action concerns protected activity—“when a
defendant has moved to strike an entire cause of action rather
than individual claims within a pleaded count.” (Id. at 1011.)
The Court rejected this view, holding that Baral’s claim-by-claim
analysis is required “even though [the defendants] sought to
strike [an] entire cause of action, rather than merely parts of it.”
(Ibid.) Adopting the minority view would “risk saddling courts
with an obligation to settle intractable, almost metaphysical
problems about the ‘essence’ of a cause of action that
encompasses multiple claims” and “yield overinclusive and
underinclusive results.” (Ibid.)
Bonni did not hold, however, that every invocation of the
anti-SLAPP statute, however broad, requires plaintiffs or courts
to perform the claim-by-claim analysis prescribed in Baral. To
the contrary, Bonni recognizes a “nonmovant should not be put to
the burden of parsing the cause of action in the moving party’s
stead” and explains that “well-established anti-SLAPP law”
provides a solution when an anti-SLAPP movant seeks to impose
burdens on the nonmovant or the trial court by filing an
overbroad or nonspecific motion: “attention to the allocation of
10
the applicable burden of proof.” (Bonni, supra, 11 Cal.5th at
1011.) “If a cause of action contains multiple claims and a
moving party fails to identify how the speech or conduct
underlying some of those claims is protected activity, it will not
carry its first-step burden as to those claims.” (Ibid.)
Extending these principles to a motion targeting an entire
complaint is only a matter of degree. Where a defendant moves
to strike the entire complaint and fails to identify, with reasoned
argument, specific claims for relief that are asserted to arise from
protected activity, the defendant does not carry his or her first-
step burden so long as the complaint presents at least one claim
that does not arise from protected activity. Here, the Nazaris not
only failed to identify specific claims for relief arising from
protected activity, they expressly asked the court to perform the
type of gravamen analysis disapproved in Bonni. At no point did
the Nazaris “identify the activity each challenged claim rests on
and demonstrate that that activity is protected by the anti-
SLAPP statute.” (Wilson, supra, 7 Cal.5th at 884.) And there are
obviously claims in the complaint that do not arise from anti-
SLAPP protected activity, e.g., the claim that the Nazaris are
interfering with their ability to obtain funding from the Fund.
The Nazaris’ accordingly did not carry their first-step anti-
SLAPP burden. As the trial court suggested at the hearing on
the Nazaris’ motion, the problem for the Nazaris was their failure
to link specific claims for relief to protected activity. The trial
court’s question—“I’m supposed to guess what you want?”—was,
in substance, a rejection of the Nazaris’ suggestion that the court
11
“should . . . be put to the burden of parsing the [complaint] in
[their] stead.”5 (Bonni, supra, 11 Cal.5th at 1011.)
Our Supreme Court’s guidance from Baral to Bonni
explains that while courts may strike less than the entirety of a
complaint or pleaded cause of action, the trial court is not
required to take on the burden of identifying the allegations
susceptible to a special motion to strike. If a defendant wants the
trial court to take a surgical approach, whether in the alternative
or not, the defendant must propose where to make the incisions.
5
In Balla v. Hall (2021) 59 Cal.App.5th 652 (Balla), the
Court of Appeal held that the trial court “erred by concluding it
had to deny . . . anti-SLAPP motions [noticed as motions to strike
complaints “in [their] entirety”] if any portion of the complaints
were actionable.” (Id. at 666, 671.) The court reasoned “Baral
makes clear that not only can an anti-SLAPP motion attack
portions of causes of action, but also that whether it does so turns
on how the issues are framed—not simply the text of the notice of
motion.” (Id. at 672.)
Insofar as Balla holds a trial court may parse the claims in
a complaint even when an anti-SLAPP movant does not
discharge his or her burden to, as Baral says, “identify[ ] all
allegations of protected activity, and the claims for relief
supported by them” (Baral, supra, 1 Cal.5th at 396), we agree.
Insofar as Balla holds a trial court must do so, we hold to the
contrary. When a trial court is presented with an anti-SLAPP
motion that seeks to strike only the entire complaint and does not
identify specific claims or allegations that should be stricken even
if the entire complaint is not, the court can properly deny the
motion so long as the court concludes the movant is not entitled
to the relief sought, i.e., so long as the court concludes the
complaint presents at least one claim that does not arise from
anti-SLAPP protected activity.
12
This is done by identifying, in the initial motion, each numbered
paragraph or sentence in the complaint that comprises a
challenged claim and explaining “the claim’s elements, the
actions alleged to establish those elements, and wh[y] those
actions are protected.” (Bonni, supra, 11 Cal.5th at 1015.)
[Part II.B, below, is deleted from publication. See post at
p. 15 for where publication is to resume.]
B. Issue Preclusion Principles Do Not Compel a Different
Result
Issue preclusion, also known as collateral estoppel,
“prohibits the relitigation of issues argued and decided in a
previous case . . . .” (DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 824.) The doctrine applies “(1) after final
adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one
who was a party in the first suit or one in privity with that party.
[Citations.]” (Id. at 825.) “Whether collateral estoppel applies in
a particular case is a question of law which we review de novo.
[Citation.]” (Duarte v. State Teachers’ Retirement System (2014)
232 Cal.App.4th 370, 389, fn. 11.)
We assume without deciding that a prior order in the same
litigation may have preclusive effect. (Direct Shopping Network,
LLC v. James (2012) 206 Cal.App.4th 1551, 1554 [holding that an
appellate ruling on a co-defendant’s anti-SLAPP motion barred
the plaintiff “from relitigating the issue of its probability of
prevailing on the merits”]; Hoang v. Tran (2021) 60 Cal.App.5th
513, 530; but see People v. Yokely (2010) 183 Cal.App.4th 1264,
1273 [“[T]he California Supreme Court and courts of appeal have
13
expressed doubt that the doctrine of collateral estoppel applies in
further proceedings in the same litigation,” but the issue “has not
been resolved definitively”]; United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 165, fn. 6.) We
further assume for the sake of argument that plaintiffs’ appeal of
the order granting Torres-Siegrist’s motion did not prevent the
trial court’s ruling from having preclusive effect even though we
had not yet dismissed the appeal when the trial court ruled on
the Nazaris’ motion.6 (Riverside County Transportation Com. v.
Southern California Gas Co. (2020) 54 Cal.App.5th 823, 838 [“a
judgment is not final for purposes of res judicata or collateral
estoppel if an appeal is pending or could still be taken”].)
Even with these assumptions, there is still a fatal flaw in
the Nazaris’ issue preclusion argument: their anti-SLAPP motion
did not raise the same issue as Torres-Siegrist’s motion. At the
first step of the anti-SLAPP analysis, both Torres-Siegrist and
the Nazaris’ motions were framed such that the issue was
whether all claims against the moving party or parties arose
from protected activity. Because the allegations and claims for
relief against Torres-Siegrist and the Nazaris differed, the
substance of this question differed from one motion to the next.
To cite only the most obvious example, Torres-Siegrist is not
named in—and apparently had nothing to do with—the cause of
6
At oral argument, the Nazaris cited Consumer Advocacy
Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 683-
684 for the proposition that an issue does not have to be decided
on appeal for collateral estoppel to apply. Even if the cited
authority actually discussed this point, it has no bearing on the
point regarding finality.
14
action relating to plaintiffs’ entitlement to Fund assistance in
addressing environmental issues at the truck stop. The trial
court’s ruling that all claims against Torres-Siegrist arose from
protected activity did not resolve whether this claim against the
Nazaris arises from protected activity. Put another way, the
earlier ruling did not resolve the dispositive issue of whether all
claims against the Nazaris arise from protected activity.
[The remainder of the opinion is to be published.]
DISPOSITION
The order denying the Nazaris’ anti-SLAPP motion is
affirmed. Plaintiffs shall recover their costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
15