The opinion
Filed 3/16/15 White v. Maksimow CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALAN W. WHITE, D065323
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2013-58576-CU-
FR-NC)
LORENZA MAKSIMOW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Earl H. Maas III, Judge. Reversed with directions.
Law Offices of David C. Beavans and David C. Beavans for Defendant and
Appellant.
William J. Brown III for Plaintiff and Respondent.
Lorenza Maksimow appeals from the trial court's order denying her special motion
to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16)1 in a lawsuit
brought against her by Alan W. White. As we will explain, we conclude that the trial
court erred in denying the special motion to strike, and we therefore reverse and remand
with directions.
I
FACTUAL AND PROCEDURAL BACKGROUND
White is a licensed public insurance adjuster, who does business as the sole
proprietor of Alan White & Associates (AWA). In 2010, White hired Maksimow to work
for him as an interim public insurance adjuster while she attempted to become fully
licensed. White provided Maksimow with leads to obtain clients for AWA and paid her a
percentage of the fees paid by the clients to AWA.
Maksimow worked for White until December 2011, when she was terminated.
Maksimow believed that White did not pay her all the money she was owed, and she had
her attorney send a letter to White in July 2012 detailing the amounts purportedly owed.
White responded in August 2012 with an accounting that disputed Maksimow's claims.
Still contending that White owed her money, Maksimow filed a complaint with
the California Labor Commissioner, Department of Industrial Relations, Division of
1 Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure. SLAPP is an acronym for strategic lawsuit against public participation.
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1
(Briggs).)
2
Labor Standards Enforcement (DLSE) in November 2012.2 The complaint, which was
signed by Maksimow, identified "Alan White & Associates, Inc," (hereinafter, "AWA,
Inc.") as the defendant rather than White's sole proprietorship AWA. AWA, Inc. was
incorporated in 1993 but has been defunct for at least 10 years and was never used by
White to conduct business as a public insurance adjuster. White was listed as the agent
for service of process for AWA, Inc., but since the corporation had been defunct for
several years, the latest address given for the corporate agent for service of process was
White's address in Encinitas, where White has not resided since 2000 and where he no
longer receives mail. It is undisputed that Maksimow worked for AWA, not for AWA,
Inc.
The complaint and all other notices for the DLSE proceedings were served on the
out-of-date Encinitas address associated with AWA, Inc., and White accordingly never
received notice of the DLSE proceedings. Documents that the DLSE served on AWA,
Inc.'s address in Encinitas were returned as undeliverable.
Evidence in the record shows that Maksimow knew that the Encinitas address was
not where White did business, as she worked for him out of his Cardiff-by-the-Sea office
in 2010 and 2011, and she and her attorney corresponded with White more recently in
Escondido, where he had moved his office in June 2012. A factual dispute exists as to
why AWA, Inc. was named as the defendant in the DLSE proceeding and why service of
2 The DLSE's decision states that Maksimow filed an initial report or claim with the
Labor Commissioner on June 19, 2012. That claim does not appear in the record before
us.
3
process was addressed to an out-of-date address for White in Encinitas. Maksimow's
declaration states, "The DLSE handled serving Alan White and Associates — I had
nothing to do with that. They also chose to file the case against 'Alan White &
Associates, Inc.[,]' rather than the proper 'Alan White & Associates' a non-corporate
entity. I do not know why they chose to do that, but it may have been a mistake on
DLSE's part." Maksimow further stated, "Everything I submitted to the DLSE was true,
or true according to the best of my knowledge."3 White's declaration, in contrast,
maintains that Maksimow "deliberately mislead the [DLSE] that she worked for the
corporation as an employee, and supplied the years out-of-date [Encinitas] address."4
After attempting service on the corporate agent of AWA, Inc. at the Encinitas
address, the DLSE held a hearing on Maksimow's complaint. White did not appear at the
hearing.5 The DLSE issued a decision in favor of Maksimow on January 16, 2013,
3 Also relevant to whether Maksimow intended to proceed against AWA, Inc. is a
letter Maksimow wrote to the DLSE after the superior court judgment was entered, in
which she questions why the defendant identified in the judgment was AWA, Inc. rather
than AWA, as she worked for AWA, not AWA, Inc. In the letter, Maksimow also
acknowledges that she will have difficulty executing on the judgment because it is
against AWA, Inc. rather than AWA, and she asks for the DLSE's assistance in amending
the judgment to name AWA rather than AWA, Inc.
4 We note that Maksimow filed evidentiary objections to the evidence submitted by
White in support of his anti-SLAPP motion. The trial court did not rule on the
objections. In the context of an anti-SLAPP motion, "[w]hen the trial court does not rule
on an evidentiary objection, we deem the objection to have been overruled." (Zucchet v.
Galardi (2014) 229 Cal.App.4th 1466, 1480, fn. 7 (Zucchet).)
5 The DLSE decision notes, "The Defendant's agent was served at the address of
record listed with the California Secretary of State but the Defendant failed to appear at
the hearing and did not file an answer to the complaint."
4
concluding that Maksimow was entitled to recover a total of $70,008.66 from AWA, Inc.,
including interest and penalties.
Thereafter, DLSE filed a request for entry of judgment in the San Diego Superior
Court in favor of Maksimow. Consistent with the prior proceedings before the DLSE, the
complaint identified AWA, Inc. as the defendant. The clerk of the court issued a notice
of entry of judgment on March 4, 2013, for a total judgment amount of $71,046.98
(inclusive of post-hearing interest and a court filing fee), and it served the notice of entry
of judgment on AWA, Inc. at the out-of-date Encinitas address.
Maksimow obtained a writ of execution from the superior court on July 3, 2013, in
the amount of the judgment plus interest.6 On the writ of execution, the judgment debtor
is identified as AWA, Inc., with the address of AWA's former Cardiff-by-the-Sea office.
On July 17, 2013, White was notified by his bank, U.S. Bancorp, that the writ of
execution had been served on it in an attempt to levy against AWA's account. White
explains that he contacted DLSE and found out that the decision giving rise to the writ of
execution was against AWA, Inc., not against him or his sole proprietorship, and he
informed U.S. Bancorp of that fact. According to White, U.S. Bancorp stated that it
nevertheless planned to release the funds in AWA's bank account to the sheriff.
White filed this lawsuit on July 22, 2013, against Maksimow and U.S. Bancorp.
The complaint alleges causes of action for (1) extrinsic fraud (against Maksimow), based
6 The writ of execution appearing in the appellate record is poorly photocopied and
the amount set forth therein is not legible. According to both White's declaration and
complaint, the writ of execution was in the sum of $73,045.96.
5
on which White sought to vacate the judgment that Maksimow obtained against AWA,
Inc.; (2) an injunction (against both defendants) enjoining U.S. Bancorp from releasing
the funds to the sheriff and Maksimow from attempting to enforce her judgment;7
(3) abuse of process (against Maksimow); (4) fraud (against Maksimow); and
(5) declaratory relief (against U.S. Bancorp). White alleges that Maksimow committed
fraud and abuse of process by deliberately misrepresenting to the DLSE and to the
superior court that she worked for AWA, Inc. rather than AWA as a sole proprietorship,
and by supplying an out-of-date address for service of process on White, which led to a
fraudulently procured judgment and an improper levy on AWA's bank account.
Shortly after the lawsuit was filed, the trial court directed that the parties appear
before Judge Lisa Schall, who had issued the writ of execution. Judge Schall vacated the
writ of execution on July 29, 2013, after determining that White had not been properly
served with notice of entry of judgment, even though Maksimow knew White's correct
address.
7 "Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of
action must exist before injunctive relief may be granted." (Shell Oil Co. v. Richter
(1942) 52 Cal.App.2d 164, 168.) "To qualify for a permanent injunction, the plaintiff
must prove (1) the elements of a cause of action involving the wrongful act sought to be
enjoined . . . ; and (2) the grounds for equitable relief." ( San Diego Unified Port Dist. v.
Gallagher (1998) 62 Cal.App.4th 501, 503.) The language of the operative complaint
makes clear that the cause of action for "injunction" against Maksimow is based on the
same ground as the cause of action for extrinsic fraud. Specifically, White alleges that
Maksimow should be enjoined from seeking to enforce a judgment obtained through
extrinsic fraud. For the purposes of our analysis we will therefore treat the "injunction"
cause of action against Maksimow as identical to the claim for extrinsic fraud, and our
discussion of the extrinsic fraud cause of action is intended to cover the cause of action
for "injunction" as well.
6
Maksimow then filed a special motion to strike under the anti-SLAPP law in this
action on August 26, 2013, and White opposed it. The trial court (Judge Earl H.
Maas III) denied the special motion to strike. It explained that Maksimow had met her
burden under the first prong of the anti-SLAPP analysis because she established that
White's claims against her arose from acts in furtherance of first amendment or
petitioning activity protected by the anti-SLAPP statute, but that the special motion to
strike failed on the second prong because White had met his burden to show a probability
of success on his claims. Maksimow appeals from the denial of the special motion to
strike.
II
DISCUSSION
A. Legal Standards Governing Anti-SLAPP Motions
The anti-SLAPP statute 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 connection with a public
issue shall be subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on the
claim." (§ 425.16, subd. (b)(1).)
"The analysis of an anti-SLAPP motion thus involves two steps. 'First, the court
decides whether the defendant has made a threshold showing that the challenged cause of
action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) If the court finds
such a showing has been made, it then must consider whether the plaintiff has
7
demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action
that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected
speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being
stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
819-820 (Oasis West).) " 'If the defendant does not demonstrate [the] initial prong, the
court should deny the anti-SLAPP motion and need not address the second step.' "
(Zucchet, supra, 229 Cal.App.4th at p. 1476.)
Section 425.16, subdivision (e) describes the type of activity protected by the anti-
SLAPP statute. An " 'act in furtherance of a person's right of petition or free speech . . .
in connection with a public issue' includes: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest." (§ 425.16, subd. (e).)8
8 When the first two subparts of section 425.16, subdivision (e) are at issue (i.e.,
speech or petitioning before a legislative, executive, judicial or other official proceeding;
or statements made in connection with an issue under review or consideration by an
official body), the moving party is not required to independently demonstrate that the
8
"Review of an order granting or denying a motion to strike under section 425.16 is
de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits
. . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we
neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept
as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's
evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
law.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
B. White's Claims Arise from Protected Activity
The first issue in the anti-SLAPP analysis is whether, as the trial court determined,
White's claims arise from protected activity.
As we have explained, one form of protected activity under the anti-SLAPP statute
is "any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law." (§ 425.16, subd.
(e)(1).) As Maksimow points out, and White does not contest, all of the claims in White's
complaint are based on the proceedings that Maksimow instituted before the DLSE and
the superior court. Specifically, White's claims are based on Maksimow's purportedly
misleading statements in the DLSE proceeding and in the superior court about her
employment by AWA, Inc. and about White's current address.
Statements made in a proceeding before the DLSE fall under the anti-SLAPP
statute as petitioning activity because a DLSE proceeding is the proceeding of a
matter is a " 'public issue' " within the statute's meaning. (Briggs, supra, 19 Cal.4th at
p. 1113.)
9
governmental administrative body (Briggs, supra, 19 Cal.4th at p. 1115 [" ' "[t]he
constitutional right to petition . . . includes . . . seeking administrative action" ' "]), and
statements made during a superior court proceeding also fall under the anti-SLAPP
statute because a superior court case is a judicial proceeding. (Ibid. [participating in
litigation in court is protected petitioning activity].)
Although not taking issue with the proposition that Maksimow's participation in
the DLSE and superior court proceedings were in furtherance of Maksimow's right to
petition as described in the anti-SLAPP statute, White contends that Maksimow's
participation in those proceedings are not protected by the anti-SLAPP statute because
they were not a valid exercise of Maksimow's constitutional rights in that they were
illegal. Specifically, White contends that by pursuing a wage claim and a writ of
execution against AWA, Inc. when she knew the proceedings were brought against the
wrong entity, Maksimow engaged in illegal fraudulent activity.
In enacting the anti-SLAPP statute, the Legislature stated that its purpose was to
address "lawsuits brought primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition." (§ 425.16, subd. (a), italics added.) Our Supreme
Court has accordingly held that when it is uncontested or otherwise conclusively
established that a person acted illegally in exercising his or her First Amendment rights,
that activity is not a valid exercise of rights, and is accordingly not protected under the
anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley).)
Specifically, Flatley held that "where a defendant brings a motion to strike under section
425.16 based on a claim that the plaintiff's action arises from activity by the defendant in
10
furtherance of the defendant's exercise of protected speech or petition rights, but either
the defendant concedes, or the evidence conclusively establishes, that the assertedly
protected speech or petition activity was illegal as a matter of law, the defendant is
precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley, at
p. 320, italics added.) "The rationale is that the defendant cannot make a threshold
showing that the illegal conduct falls within the purview of the statute and promotes
section 425.16's purpose to 'prevent and deter "lawsuits [referred to as SLAPP's] brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." (§ 425.16, subd. (a).)' " (Id. at p. 316, italics
added.)
Our Supreme Court has emphasized that the exception for illegal activity is very
narrow and applies only in undisputed cases of illegality. "If . . . a factual dispute exists
about the legitimacy of the defendant's conduct, it cannot be resolved within the first step
but must be raised by the plaintiff in connection with the plaintiff's burden to show a
probability of prevailing on the merits." (Flatley, supra, 39 Cal.4th at p. 316.) "[T]he
showing required to establish conduct illegal as a matter of law — either through
defendant's concession or by uncontroverted and conclusive evidence — is not the same
showing as the plaintiff's second prong showing of probability of prevailing." (Id. at
p. 320, italics added.) Applying Flatley, subsequent courts have reiterated that it is only
in "rare cases in which there is uncontroverted and uncontested evidence that establishes
the crime as a matter of law." (Cross v. Cooper (2011) 197 Cal.App.4th 357, 386, italics
added (Cross); see also Zucchet, supra, 229 Cal.App.4th at p. 1480 ["this is not the rare
11
case in which the illegality of [the] activities is uncontested or conclusively
established"].)
"The rare cases in which the exception for illegal conduct has been applied include
(1) a case in which the plaintiff obtained a finding of factual innocence, which
conclusively established that the defendant made a false police report, and the defendant
did not contest that fact (Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703); and
(2) a case in which the defendant conceded that its acts of vandalism in support of animal
rights issues were unlawful (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296). In contrast, courts deny
anti-SLAPP motions when it is not conclusively established or conceded that unlawful
protected activity occurred. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712
[defendant did not concede that she engaged in any unlawful activities and there was no
uncontroverted evidence that she did so]; Cross, supra, 197 Cal.App.4th at p. 386
[defendant did not concede criminal conduct and the uncontroverted evidence did not
establish a crime as a matter of law].)" (Zucchet, supra, 229 Cal.App.4th at pp. 1478-
1479.)
It is not the defendant's burden to disprove the truth of the allegations of any
illegal conduct appearing in the complaint. (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 740 [A defendant in a malicious prosecution action alleging abusive
activity is not required to first establish that his actions are constitutionally protected as a
matter of law, as " '[i]f this were the case then the [secondary] inquiry as to whether the
plaintiff has established a probability of success would be superfluous.' "]; DuPont Merck
12
Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [the truth of the
plaintiff's allegations that the defendant made false statements should be considered
during the second prong analysis in an anti-SLAPP motion, and to do otherwise would be
"placing the cart before the horse"].)
In this case, the illegality of Maksimow's conduct is neither uncontroverted nor
conclusively established as a matter of law. Maksimow argued in the trial court and
continues to argue on appeal that she did not commit misconduct. Accordingly,
Maksimow plainly has not conceded the illegality of her conduct. Further, the evidence
also does not conclusively establish that Maksimow acted illegally. Maksimow contends
that the DLSE was the entity that made the mistake of identifying AWA, Inc. as the
defendant and serving documents at AWA, Inc.'s corporate address in Encinitas. Further,
Maksimow's attorney argued in the trial court that there is no proof that Maksimow did
anything wrong in attempting to levy on a writ of execution with White's bank, even
though she knew that her judgment was against AWA, Inc. rather than AWA, as she
could merely have been attempting to find out if AWA, Inc. — the entity against whom
she had obtained a judgment — had any active accounts at the bank. Indeed, the trial
court's comments during the argument on Maksimow's demurrer emphasize that the
crucial facts were very much in dispute as to whether Maksimow committed intentional
misconduct in attempting to execute against White's bank account. As the trial court
stated, "[Y]ou're getting into saying it's the bank's fault that they went after it; not her
fault. I don't know that. That's an issue that needs to be discovered and worked out. . . .
[I]t does lead me to believe there's at least the possibility that she knew exactly what she
13
was doing when she went after Mr. White's holdings as opposed to going after the
corporation that she had, in fact, sued. Could be the bank's fault. I give you that. I don't
know that. . . . I'm not in a position where I can judge whether she knew what she was
doing or not." Those comments underscore that it has not been conclusively established
that Maksimow engaged in any illegal conduct.
In sum, because White's claims arise from Maksimow's petitioning activity, and
this is not the rare case in which the illegality of those activities is uncontested or
conclusively established, Maksimow has satisfied her burden on the first prong of the
anti-SLAPP analysis to show that White's claims arise from activity protected by the anti-
SLAPP statute.
C. White's Probability of Prevailing on His Claims
Having determined that Maksimow satisfied her burden under the first prong of
the anti-SLAPP analysis, we next consider whether White has met his burden under the
second prong.
"To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion
must " 'state[] and substantiate[] a legally sufficient claim.' " [Citation.] Put another
way, the plaintiff "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." ' " (Oasis West, supra, 51 Cal.4th at
p. 820.) In short, a plaintiff must " 'demonstrate[] a probability of prevailing on the
claim.' " (Ibid.) If a plaintiff meets this burden, the action is allowed to go forward
despite the fact that it arises from protected activity. (Ibid.)
14
1. The Litigation Privilege Bars the Causes of Action for Fraud and Abuse of
Process
We first consider Maksimow's contention that White cannot demonstrate a
probability of prevailing because all of his causes of action against her are barred by the
litigation privilege set forth in Civil Code section 47, subdivision (b). As we will explain,
we agree that the litigation privilege applies to White's causes of action for abuse of
process and fraud.
The litigation privilege " 'is "relevant to the second step in the anti-SLAPP
analysis in that it may present a substantive defense plaintiff must overcome to
demonstrate a probability of prevailing." ' " (Kenne v. Stennis (2014) 230 Cal.App.4th
953, 963.) Civil Code section 47, subdivision (b) states in relevant part: "A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any (1) legislative proceeding,
(2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in
the initiation or course of any other proceeding authorized by law and reviewable
pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of
Civil Procedure . . . ." As our Supreme Court has explained, "The litigation privilege . . .
provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is
privileged. This privilege is absolute in nature, applying 'to all publications, irrespective
of their maliciousness.' . . . 'The usual formulation is that the privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
[has] some connection or logical relation to the action.' " (Action Apartment Assn., Inc. v.
15
City of Santa Monica (2007) 41 Cal.4th 1232, 1241, citations omitted (Action
Apartment).)
" 'The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford
litigants and witnesses [citation] the utmost freedom of access to the courts without fear
of being harassed subsequently by derivative tort actions.' " (Flatley, supra, 39 Cal.4th at
p. 321.) "[T]he privilege is 'an "absolute" privilege, and it bars all tort causes of action
except a claim of malicious prosecution.' [Citation.] The litigation privilege has been
applied in 'numerous cases' involving 'fraudulent communication or perjured testimony.' "
(Id., at p. 322.) Specifically, "the litigation privilege has since 'been held to immunize
defendants from tort liability based on theories of abuse of process [citations], intentional
infliction of emotional distress [citations], intentional inducement of breach of contract
[citations], intentional interference with prospective economic advantage [citation],
negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation]
and fraud [citations].' " (Action Apartment, supra, 41 Cal.4th at p. 1242.)
Here, as we have explained, each of White's causes of action against Maksimow is
based on the allegation that Maksimow made deliberately misleading statements during
the DLSE proceedings and the superior court proceedings for the purpose of obtaining a
judgment against White and thereafter levying upon on a writ of execution. Specifically,
White alleges that Maksimow deliberately made misstatements to the DLSE and the
superior court by indicating that she worked for AWA, Inc. and by supplying an out-of-
date address for service of process on White, which enabled her to obtain a judgment and
wrongfully pursue the writ of execution. All of these statements are made "in furtherance
16
of the objects of the litigation" as required for the litigation privilege to apply. (Silberg v.
Anderson (1990) 50 Cal.3d 205, 219.)
Both the DLSE proceedings and the superior court action are the type of
proceedings to which the litigation privilege applies. The statements that Maksimow
made during the DLSE proceeding are covered by the litigation privilege as statements
made as part of an "official proceeding authorized by law" within the meaning of Civil
Code section 47, subdivision (b) because they were made in a quasi-judicial proceeding.
(See Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 667 [statements made in initiating
and pursuing a State Bar administrative proceeding were protected by the litigation
privilege]; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 362 ["statements
that are made in quasi-judicial proceedings . . . are privileged to the same extent as
statements made in the course of a judicial proceeding" and "many cases have held that
the official proceeding privilege applies to a communication intended to prompt an
administrative agency charged with enforcing the law to investigate or remedy a
wrongdoing"].) Superior court proceedings are clearly covered as a "judicial proceeding."
(Civ. Code, § 47, subd. (b).) Moreover, to the extent that White's claims are more
specifically based on the allegedly fraudulent statements that Maksimow made in the
superior court to obtain a judgment and a writ of execution, our Supreme Court has
established that even the act of carrying out a writ of execution is within the protection of
the litigation privilege when — as here — it is alleged that the judgment and writ of
execution were fraudulently obtained and the gravamen of the action is fraudulent
communicative conduct in obtaining the writ of execution. (Rusheen v. Cohen (2006) 37
17
Cal.4th 1048, 1065 (Rusheen) [discussing application of litigation privilege to act of
carrying out a writ of execution].)
White argues that his claims against Maksimow are not subject to the litigation
privilege because they are based on noncommunicative conduct rather than
communicative acts by Maksimow. The argument lacks merit. The litigation privilege
applies to "publications and communications" constituting "communicative" acts, and the
" '[p]leadings and process in a case are generally viewed as privileged communications.' "
(Rusheen, supra, 37 Cal.4th at p. 1058.) "[T]he key in determining whether the privilege
applies is whether the injury allegedly resulted from an act that was communicative in its
essential nature." (Ibid.) Further, "if the gravamen of the action is based on a
communicative act, 'the litigation privilege extends to noncommunicative acts that are
necessarily related to the communicative conduct.' " (Falcon v. Long Beach Genetics,
Inc. (2014) 224 Cal.App.4th 1263, 1272-1273.) White's complaint is very clear about the
gravamen of its claims. White alleges that Maksimow "deliberately misled" the DLSE
and the superior court "that she worked for the corporation as an employee," and she
"supplied the years out of date [Encinitas] address." Put simply, White's claims against
Maksimow are based on allegedly false representations she made to the DLSE and the
superior court in official filings. The claims, therefore, are based on communicative acts
rather than noncommunicative conduct.9
9 White also argues that his claims are based on Maksimow's purported act of
"altering a document" in the course of obtaining the writ of execution. Civil Code section
47, subdivision (b)(2) specifically identifies the "intentional destruction or alteration of
18
2. White Lacks Standing to Pursue a Cause of Action Seeking to Vacate
the Judgment Against AWA, Inc. Based on Extrinsic Fraud
We have not included White's cause of action seeking to vacate the judgment
based on extrinsic fraud in our discussion of the claims covered by the litigation
privilege, because an exception to the litigation privilege arises when a plaintiff seeks
injunctive relief to vacate a judgment based on the theory that the judgment was obtained
through extrinsic fraud. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26
(Home Ins. Co.)10 The exception at issue is narrow and applies only to causes of action
seeking injunctive relief to set aside a judgment, not to causes of action seeking tort
damages based on extrinsic fraud in obtaining a judgment. (Navarro v. IHOP Properties,
Inc. (2005) 134 Cal.App.4th 834, 844.) White's first cause of action specifically falls
under this narrow exception to the litigation privilege because the relief it seeks is limited
physical evidence undertaken for the purpose of depriving a party to litigation of the use
of that evidence" as conduct not covered by the litigation privilege. Although White is
not clear about the factual basis for his argument that Maksimow "alter[ed]" a document,
and he has not pointed to any evidence that Maksimow did so, we note that White's
counsel made a similar argument during the hearing on the special motion to strike in the
trial court, referring to a form that Maksimow filled out to obtain a writ of execution on
which she identified the defendant in the caption as "Alan White and Associates" instead
of "Alan White & Associates, Inc." If this is the evidence that White intends to rely on to
establish that Maksimow "altered" a document, the evidence fails, as it proves nothing
more than that Maksimow filled out a new form in a certain way, not that she altered a
preexisting document. Further, we note that even though Maksimow identified the
defendant as AWA in the caption, she identified AWA, Inc. on the form as the judgment
debtor.
10 As we have explained, our discussion of the cause of action for extrinsic fraud also
covers the substantively identical cause of action for "injunction."
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to the injunctive relief of vacating a judgment that Maksimow allegedly obtained through
extrinsic fraud.11
However, even though the litigation privilege does not bar the cause of action
seeking to vacate the judgment based on extrinsic fraud, White has failed to demonstrate
a probability of prevailing on that claim for a different reason.12 Specifically, White
lacks standing to seek to vacate the judgment. The record is clear that the judgment
obtained by Maksimow was against AWA, Inc., not against White's sole proprietorship
AWA or against White personally. A party who is "legally 'aggrieved' by a judgment"
may seek to vacate it. (Plaza Hollister Ltd. Partnership v. County of San Benito (1999)
72 Cal.App.4th 1, 13.) " 'One is considered "aggrieved" whose rights or interests are
injuriously affected by the judgment. [Citations.] [The] interest " 'must be immediate,
pecuniary, and substantial and not nominal or a remote consequence of
the judgment.' " ' " (Ibid.)
11 " 'Fraud is extrinsic where the defrauded party was deprived of the opportunity to
present his or her claim or defense to the court, that is, where he or she was kept in
ignorance or in some other manner, other than from his or her own conduct, fraudulently
prevented from fully participating in the proceeding.' " (Home Ins. Co., supra, 96
Cal.App.4th at pp. 26-27.) "Where a judgment has been obtained through extrinsic fraud
it may be set aside, though long since final, by independent suit in equity." (Lazzarone v.
Bank of America (1986) 181 Cal.App.3d 581, 595, italics omitted.)
12 As it was not adequately covered in the parties' initial appellate briefing, we asked
the parties to provide us with supplemental briefing on the issue of whether White had
demonstrated a probability of prevailing on the merits on his claim seeking to vacate the
judgment against AWA, Inc. based on extrinsic fraud.
20
White cannot establish that he is legally aggrieved by the judgment for the
purposes of seeking to vacate it, as the judgment was entered against AWA, Inc., not
against him. Although White alleges that he was damaged by U.S. Bancorp's purportedly
improper action of preparing to release his personal funds even though the judgment was
against AWA, Inc.,13 that harm was no more than a remote and improbable consequence
of the judgment against AWA, Inc. Maksimow's judgment against AWA, Inc. does not
give her the legal right to obtain White's personal funds. Therefore, if U.S. Bancorp was
planning to release White's personal funds as a result of a writ of execution against
AWA, Inc.'s funds, the resulting injury to White would have been the direct consequence
of allegedly improper conduct by U.S. Bancorp. The injury would have only a remote tie
to the fact that Maksimow received a judgment against AWA, Inc. White accordingly
has not been aggrieved by the fact that Maksimow obtained a judgment against AWA,
Inc., and he lacks standing to bring a claim to vacate that judgment based on extrinsic
fraud.14
In sum, as we have concluded that the litigation privilege applies to White's tort
claims against Maksimow, and White cannot demonstrate a probability of prevailing on
13 Specifically White argues that "[h]e was the targeted victim of [Maksimow's]
extrinsic fraud. U S Bank was going to give his money to the San Diego Sheriff's
Department per the writ of execution."
14 Although his argument is not clear, White may be claiming that he is aggrieved
because Maksimow purportedly obtained a writ of execution directed against him
personally by means of extrinsic fraud. That argument fails because it misstates the facts.
Documents in the record show that Maksimow's application for a writ of execution was
directed against AWA, Inc. as the judgment debtor, not against White personally.
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his attempt to vacate the judgment against AWA, Inc. based on extrinsic fraud, White has
failed to satisfy his burden under the second prong of the anti-SLAPP analysis. Because
Maksimow has met her burden under the first prong of the anti-SLAPP statute to
establish that White's claims arise from protected activity, and White has not met his
burden to make a prima facie case that he has a meritorious claim against Maksimow, we
conclude on our de novo review that the trial court erred in denying the special motion to
strike under the anti-SLAPP statute.
DISPOSITION
The order denying the special motion to strike is reversed, and this matter is
remanded with directions for the trial court to enter an order granting the special motion
to strike.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
22