Topolewski v. AECOM Energy & Construction CA2/4

Filed 5/2/23 Topolewski v. AECOM Energy & Construction CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GARY G. TOPOLEWSKI, B318107

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No.

v. 21STCV30981)

AECOM ENERGY &

CONSTRUCTION, INC.

Defendant and

Respondent.

APPEAL from a Judgment of the Superior Court of

California. Terry A. Green, Judge. Affirmed.

Jeffer, Mangels, Butler & Mitchell, Stanley M. Gibson,

Susan Allison, and Dan P. Sedor for Plaintiff and Appellant.

Sklar Kirsh, Justin M. Goldstein, and Rachael W. Hiatt for

Defendant and Respondent.

INTRODUCTION

Gary G. Topolewski appeals an order granting defendant

AECOM Energy & Construction, Inc.’s special motion to strike

under Code of Civil Procedure section 425.16,1 commonly known

as an anti-SLAPP motion. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In July 2017, AECOM sued Topolewski, who owned a

clothing business known as Metal Jeans, Inc., for trademark

infringement under both state and federal law in the United

States District Court for the Central District of California

(federal action). AECOM alleged in the federal action that

Topolewski and others wrongfully used trademarks associated

with AECOM’s predecessor, Morrison Knudsen Corporation.

AECOM obtained summary judgment in November 2018

against Topolewski in the federal action in the amount of

approximately $1.8 billion plus interest, with attorneys’ fees of

approximately $900,000. Thereafter, in September 2019, AECOM

recorded an abstract of judgment with the Los Angeles County

Recorder reflecting the damages and attorneys’ fees awards.

AECOM filed a separate state court action in November

2019 to set aside an allegedly fraudulent conveyance of real

property by Topolewski to a third party (fraudulent conveyance

action). AECOM asserted a judgment lien on all of Topolewski’s

real property interests in Los Angeles County.

The United States Court of Appeals for the Ninth Circuit

reversed and vacated the judgment in the federal action in March

1 All further statutory references are to the Code of Civil

Procedure unless otherwise noted.

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2021, finding insufficient evidence supported the damages award.

Based upon the Ninth Circuit’s ruling, in May 2021, Topolewski

asked AECOM to withdraw its abstract of judgment. AECOM

refused, and in June 2021, recorded an amended abstract of

judgment asserting the nearly $900,000 in attorneys’ fees but

omitting the $1.8 billion damages judgment. AECOM thereafter

continued to refuse to withdraw the original or amended

abstracts.

In June 2021, the judge in the fraudulent conveyance

action found that AECOM’s judgment in the federal action was

not final because the amount of damages had been vacated.

Further, the court found that AECOM could not obtain judgment

in its state case “while the sole basis for its claim remains

disputed in the [federal] action. . . . But the absence of an

underlying judgment does not prevent A[ECOM] from initiating

and prosecuting the present suit short of judgment . . . .”

On August 20, 2022, Topolewski filed this action for abuse

of process based upon AECOM’s refusal to withdraw the

abstracts of judgment. AECOM responded to the complaint with

its anti-SLAPP motion on October 19, 2022.

As is well known, “[t]he anti-SLAPP statute requires a two-

step process: ‘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. . . . If the court determines

that relief is sought based on allegations arising from activity

protected by the statute, the second step is reached. There, the

burden shifts to the plaintiff to demonstrate that each challenged

claim based on protected activity is legally sufficient and

factually substantiated. The court, without resolving evidentiary

conflicts, must determine whether the plaintiff’s showing, if

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accepted by the trier of fact, would be sufficient to sustain a

favorable judgment. If not, the claim is stricken.’ (Baral v.

Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) In making these

determinations the court considers ‘the pleadings, and supporting

and opposing affidavits stating the facts upon which the liability

or defense is based.’ (§ 425.16, subd. (b)(2).)” (Briganti v. Chow

(2019) 42 Cal.App.5th 504, 508 (Briganti)).

AECOM, as the moving defendant, argued to the trial court

its judgment enforcement activity was protected under section

425.16 and Topolewski could not establish a probability of success

on his abuse of process claim because the litigation privilege of

Civil Code section 47 provided a complete and absolute defense to

Topolewski’s claims.

Topolewski’s opposition asserted, essentially, that AECOM

had not satisfied the requirements of the first step because his

claim was based upon AECOM’s refusal to remove the abstracts

of judgment after the judgment in the federal action was

reversed, not the initial filing of the abstracts. Further, according

to Topolewski, he had established that AECOM acted with an

improper purpose in maintaining the abstracts, thus establishing

he had a reasonable probability of prevailing on his abuse of

process claim.

At the hearing, the trial court found that the material facts

were undisputed for the purposes of the motion. As for the first

step, the court found Topolewski conceded the recordation of the

abstracts was protected but asserted that AECOM’s refusal to

withdraw them was the basis of his claim. The court found the

refusal to withdraw the abstracts was protected activity. As for

the second step, the court found that AECOM’s decision to leave

the abstracts in place was privileged under Civil Code section 47,

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subdivision (b). The court relied on O’Keefe v. Kompa (2000) 84

Cal.App.4th 130, 134, and Rusheen v. Cohen (2006) 37 Cal.4th

1048, 1059-1060, which both held that recording and maintaining

abstracts of judgment were protected and privileged. Lastly, the

court observed that Topolewski’s remedy for release of the lien

created by the amended abstract was to return to the federal

court to seek redress.

The trial court granted AECOM’s motion and dismissed

Topolewski’s complaint with prejudice.

AECOM moved for its attorneys’ fees and costs incurred in

connection with the motion. The trial court awarded $41,055.75

in attorneys’ fees, less than AECOM requested.2

DISCUSSION

On appeal, Topolewski maintains his contention that

AECOM’s refusal to withdraw the abstracts (rather than the act

of recording them) was not protected activity within the scope of

section 425.16; further, he asserts the litigation privilege applies

only to communicative acts, not AECOM’s passive inaction in

failing to remove the abstracts. We disagree with Topolewski and

agree with the trial court that Topolewski’s remedy is to return to

the federal district court to seek an appropriate order, such as an

order releasing the lien created by the abstracts or requiring

AECOM to record an appropriate document to the same effect.

(Cf. § 697.410 subd. (c) [outlining similar relief available in state

court actions].) Of course, we take no position on how the federal

court should rule on any such motion.

2 Although AECOM separately cross-appealed this award

and that action was consolidated with this action, AECOM has

dismissed its cross-appeal.

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I. The Trial Court Correctly Found AECOM’s

Recordation of and Refusal to Withdraw the Abstracts of

Judgment Constituted Protected Activity.

A. Code of Civil Procedure Section 425.16.

A SLAPP suit is a meritless lawsuit brought primarily to

inhibit or punish the exercise of the constitutional right of

petition or free speech. (§ 425.16, subd. (a); Equilon Enterprises v.

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59-60.) The purpose

of the anti-SLAPP statute is to weed out early in litigation

meritless claims arising from protected activity. (Central Valley

Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 216.) To

that end, the Legislature has declared that the statute “‘shall be

construed broadly.’” (Ibid; § 425.16, subd. (a).)

As noted above, the trial court’s analysis of an anti-SLAPP

motion is two-fold. (Wilson v. Cable News Network, Inc. (2019) 7

Cal.5th 871, 884 (Wilson).) First, the trial court determines

whether the moving party (typically, the defendant) has made a

threshold showing that the challenged claims arose from a

protected activity. (Briganti, supra, 42 Cal.App.5th at p. 508;

§ 425.16, subd. (b)(1).) If the movant makes this threshold

showing, the burden shifts to the opposing party to demonstrate

a probability of prevailing on the claims. (Briganti, supra, 42

Cal.App.5th at p. 508; § 425.16, subd. (b)(1).)

If the defendant fails to meet its burden on the first step,

the trial court should deny the motion; it need not proceed to the

next step to evaluate the merits. (Sheley v. Harrop (2017) 9

Cal.App.5th 1147, 1162.) “A cause of action is subject to dismissal

under the statute only if both steps of the anti-SLAPP analysis

are met.” (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293;

Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,

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278-279.) The “focus is not the form of the plaintiff’s cause of

action but, rather, the defendant’s activity that gives rise to his or

her asserted liability—and whether that activity constitutes

protected speech or petitioning.” (Navellier v. Sletten (2002) 29

Cal.4th 82, 92, original italics.)

“In deciding whether the ‘arising from’ requirement is met,

a court considers ‘the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense is

based.’ (§ 425.16, subd. (b).)” (City of Cotati v. Cashman (2002) 29

Cal.4th 69, 79; Wittenberg v. Bornstein (2020) 50 Cal.App.5th

303, 315.) The trial court must look beyond plaintiff’s

characterization of defendant’s conduct to determine, based on

competent evidence, whether the plaintiff’s claims arise from

protected speech or conduct. (See Stewart v. Rolling Stone LLC

(2010) 181 Cal.App.4th 664, 679 [the court does “not evaluate the

first prong of the anti-SLAPP test solely through the lens of a

plaintiff’s cause of action”].)

We review the trial court’s ruling granting the anti-SLAPP

motion de novo. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th

781, 788.) Thus, we employ the same two-step procedure as did

the trial court in determining if AECOM’s anti-SLAPP motion

was properly granted. (Weeden v. Hoffman (2021) 70 Cal.App.5th

269, 282.)

B. Analysis.

1. First Step.

To satisfy its burden on the first step of the anti-SLAPP

analysis, AECOM was required to make a prima facie showing

that Topolewski’s claims against it “arose from” an act performed

in furtherance of its rights of petition or free speech. (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th

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1057, 1063 [a claim is the “activity allegedly giving rise to

liability”].) AECOM was not required to prove its conduct is

constitutionally protected as a matter of law. (Flatley v. Mauro

(2006) 39 Cal.4th 299, 319.) The question is only whether

AECOM made a prima facie showing that the activity underlying

the claims alleged against it is statutorily protected. (Wilson,

supra, 7 Cal.5th at p. 888.) In determining whether the claims

arise from protected activity, we do not consider the legitimacy of

plaintiff’s claims. (Coretronic Corp. v. Cozen O’Connor (2011) 192

Cal.App.4th 1381, 1388 [“Arguments about the merits of the

claims are irrelevant to the first step of the anti-SLAPP

analysis”].)

The categories of “protected activity” under section 425.16

relevant here encompass “any written or oral statement or

writing made before a . . . judicial proceeding, or any other official

proceeding authorized by law,” and “any written or oral

statement or writing made in connection with an issue under

consideration or review by a . . . judicial body, or any other official

proceeding authorized by law.” (§ 425.16, subd. (e)(1) & (2).)

Thus, a defendant’s act of obtaining an abstract of judgment and

recording it as a real property lien falls within section 425.16,

subdivision (e). (O’Neil-Rosales v. Citibank (South Dakota) N.A.

(2017) 11 Cal.App.5th Supp. 1, 6; Weeden v. Hoffman, supra, 70

Cal.App.5th at p. 285, fn. 3.)

As noted above, however, Topolewski argues that it is not

AECOM’s act of recording the abstracts, but its refusal to

withdraw them that forms the basis of his action. He contends

AECOM’s refusal is not within the scope of section 425.16. We

decline to narrow the statute in that way. Topolewski concedes

that filing the abstracts is protected activity. Although he

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contends AECOM should have withdrawn the abstracts after its

judgment against him was reversed and the case was remanded

to the district court, he does not adequately articulate why

leaving them in place is not also protected speech or petitioning

activity. Both filing and not withdrawing the abstracts are

protected speech within the scope of the anti-SLAPP statute. The

abstracts serve as notice of AECOM’s claim, whether the claim is

valid or not. And the abstracts clearly constitute a “written or

oral statement or writing made in connection with an issue under

consideration or review by a . . . judicial body” as provided for in

the statute. (§ 425.16, subd. (e)(2).)

2. Second Step.

For the second step of the anti-SLAPP analysis, we do not

weigh evidence or resolve conflicting factual claims. (Baral,

supra, 1 Cal.5th at p. 384.) Instead, we limit our inquiry to

whether the plaintiff has stated a legally sufficient claim and

made a prima facie factual showing sufficient to sustain a

favorable judgment if the plaintiff’s evidence is credited. (Id. at

pp. 384-385.) A court accepts the plaintiff’s evidence as true and

evaluates a defendant’s showing only to determine if it defeats

the plaintiff’s claim as a matter of law. (Id. at p. 385.)

“To succeed in an action for abuse of process, a litigant

must establish that the defendant (1) contemplated an ulterior

motive in using the process, and (2) committed a willful act in the

use of the process not proper in the regular conduct of the

proceedings.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057.)

At this stage, a plaintiff must show that any asserted

defenses are inapplicable as a matter of law or make a prima

facie showing of facts that, if accepted, would negate such

defenses. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.) The

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litigation “privilege applies to any communication (1) made in

judicial or quasi-judicial proceedings; (2) by litigants or other

participants authorized by law; (3) to achieve the objects of the

litigation; and (4) that have some connection or logical relation to

the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Thus,

communications with some relation to judicial proceedings are

absolutely immune from tort liability. (Rubin v. Green (1993) 4

Cal.4th 1187, 1193.)

AECOM’s judgment enforcement efforts are clearly

privileged under Civil Code section 47, subdivision (b). The action

giving rise to Topolewski’s suit, whether filing the abstracts of

judgment, or leaving them on file, was an extension of the judicial

process in the federal action. (See, e.g., O’Keefe v. Kompa, supra,

84 Cal.App.4th at p. 134 [filing of abstract of judgment in

furtherance of collection efforts privileged].)

As noted above, Topolewski argues that his claim is focused

upon AECOM’s refusal to remove the abstracts, which he

contends is a noncommunicative act that is not protected by the

litigation privilege. We disagree. Both the filing of the abstract

and leaving them on file are communicative acts: they provide

notice of AECOM’s claim to prospective purchasers of real

property owned by the purported judgment debtor. And as noted

above, they are protected by the litigation privilege.

In conclusion, we point out that Topolewski is not without a

remedy for what he contends are improper abstracts of judgment.

A federal court judgment, “once rendered, is final for purposes of

res judicata until reversed on appeal or modified or set aside in

the court of rendition.” (See, e.g., Martin v. Martin (1970) 2 Cal.3d

752, 761, italics added.) As a result, the federal court, not this

court, has jurisdiction over the trademark litigation and is the

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court with the power to effect modification of the abstracts. (See,

e.g., ibid.)

II. ATTORNEYS’ FEES.

The prevailing defendant on an anti-SLAPP motion

“shall be entitled to recover [his or her] attorney’ s fees and

costs.” (§ 425.16, subd. (c)(1).) “[A]ny SLAPP defendant who

brings a successful motion to strike is entitled to mandatory

attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Topolewski argues that if we reverse the trial court’s order, the

attorneys’ fees award must also be reversed.

However, Topolewski makes no argument that the fee

award was in an unwarranted amount. As a result, as we affirm

the trial court’s order, we affirm the award of AECOM’s

attorneys’ fees.

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DISPOSITION

The order of the superior court is affirmed. AECOM is to

recover its costs on appeal.

CURREY, Acting P.J.

We concur:

COLLINS, J.

ZUKIN, J.*

* Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to Article VI, section 6, of the California

Constitution.

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