Espinoza Bail Bonds, Inc. v. Chuang CA3

Filed 5/15/23 Espinoza Bail Bonds, Inc. v. Chuang CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

ESPINOZA BAIL BONDS, INC., et al., C095258

Plaintiffs, Cross-defendants and (Super. Ct. No. CV-2021-0958)

Respondents,

v.

RONALD Y. CHUANG et al.,

Defendants, Cross-complainants and

Appellants.

This appeal challenges the trial court’s grant of a special motion to strike pursuant

to Code of Civil Procedure section 425.16, the anti-SLAPP statute,1 directed at a cross-

complaint filed by Linda and Ronald Chuang (the Chuangs), asserting causes of action

1 SLAPP is an acronym for “strategic lawsuit against public participation.”

Undesignated statutory references are to the Code of Civil Procedure.

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for financial elder abuse arising out of a breach of contract action brought by Espinoza

Bail Bonds, Inc. (Espinoza Bail Bonds) as well as certain actions taken by bail agents

when taking the Chuangs’ son, Ted Chuang, into custody. We affirm in part and reverse

in part.

To the extent the anti-SLAPP motion was granted as to the Chuangs’ elder abuse

claims arising out of the protected activity of filing a lawsuit, we affirm. To the extent

the motion was granted as to the Chuangs’ claims arising out of the unprotected activities

of the bail agents, we reverse. We also reverse the trial court’s subsequent order

awarding attorney fees and remand the matter for reconsideration of the fee award.

BACKGROUND

In March 2015, Espinoza Bail Bonds posted a $500,000 bond for Ted.2 The

Chuangs signed indemnity agreements obligating them to, among other things, ensure

Ted appeared in court as required by the trial court; indemnify the surety, Lexington

National Insurance Corporation (Lexington National), against any losses, including

forfeiture of the bond; and pay a fugitive recovery fee in the event of such a forfeiture.

Between March 2015 and April 2017, the Chuangs paid the $35,000 bond premium in

full.

On September 27, 2017, Ted did not appear for a settlement conference. The trial

court ordered Ted to appear on October 5, 2017, at 1:00 p.m. or have a warrant issued for

his arrest. When Ted did not appear for that court date, the trial court issued the

promised warrant and “forfeit[ed] the cash bail.” The next day, Espinoza Bail Bonds and

Lexington National were notified “that bail in the above-entitled case was ordered

forfeited” but “the forfeiture of bail may be set aside” under the procedure set forth in

Penal Code section 1305, et seq.

2 To limit any confusion, we refer to Ted Chuang by his first name.

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On March 8, 2018, bail agents took Ted into custody at the Chuangs’ home,

forcing their way into the home, using pepper spray to deter resistance, injuring Ted and

another family member, and damaging portions of the home. The Chuangs secured Ted’s

subsequent release through a different bail bond company.

In May 2018, Espinoza Bail Bonds sent the Chuangs a bill in the amount of

$5,060, comprised of a fugitive recovery fee ($5,000) and a miscellaneous fee for filing a

motion ($60). The Chuangs disputed that they owed this amount and did not pay the bill.

In August 2019, all pending cases against Ted were dismissed and all bail bonds

exonerated.

The Operative Complaint and Cross-Complaint

In May 2021, Espinoza Bail Bonds sued the Chuangs for breach of contract,

seeking damages in the amount of $5,060. The complaint alleges this amount was owed

as unpaid “premiums on said bond.” The Chuangs answered the complaint, asserting

among other things, that the premiums on the bond had been paid in full.

In July 2021, the Chuangs filed a cross-complaint against Espinoza Bail Bonds

and Jose Espinoza (collectively, cross-defendants), alleging two causes of action for

financial elder abuse in violation of Welfare and Institutions Code section 15610.30. The

causes of action were identical, except that the first alleged Ronald Chuang as the victim

and the second alleged Linda Chuang as the victim. The Chuangs alleged they were each

over 65 years of age at the time of the alleged events. They also alleged that cross-

defendants “took over or appropriated” their house “ ‘for a wrongful use or with intent to

defraud, or both,’ ” on March 8, 2018, when bail agents entered, and “also destroyed,”

the house in order to take Ted into custody “to exonerate a bond that had already been

exonerated as a matter of law.” The Chuangs also alleged that cross-defendants

continued in their “attempts to defraud the elder[s] of personal property (money) after the

events of March 8, 2018” by attempting to collect “the unowed debt” noted above and

“the filing of the instant complaint.” They further alleged that cross-defendants knew or

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should have known that their conduct at the house, their debt collection attempts, and the

filing of the lawsuit “was likely to be harmful to the elder[s].” Among other things, the

Chuangs sought injunctive relief enjoining cross-defendants from engaging in

harassment, compensatory and punitive damages, costs of suit, and attorney fees.

The Anti-SLAPP Motion

In August 2021, cross-defendants filed an anti-SLAPP motion directed at the

cross-complaint. Cross-defendants argued the cross-complaint arose from protected

activity because the gravamen of the financial elder abuse causes of action was that

Espinoza Bail Bonds filed a lawsuit against the Chuangs to collect a fee for returning Ted

to custody. Cross-defendants also argued the litigation privilege protected the bail

agents’ activities in the house while taking Ted into custody and that such agents have

historically been afforded qualified immunity. With respect to whether the Chuangs had

a probability of proving the elements of financial elder abuse, cross-defendants argued

the Chuangs could not prove that cross-defendants appropriated their real property at all,

or that any asserted appropriation of the house was for a wrongful use or fraudulent

purpose, as opposed to the lawful purpose of returning Ted to custody. In support of the

latter argument, cross-defendants pointed out the indemnity agreements signed by the

Chuangs expressly allowed bail agents to enter their house for purposes of fugitive

recovery. Cross-defendants further argued the Chuangs could not prove damages.

In opposition to the anti-SLAPP motion, the Chuangs argued: (1) the indemnity

agreements they signed were invalid because Espinoza Bail Bonds did not exist as a valid

legal entity at the time; (2) the $500,000 bond was unlawfully “stacked” with other

bonds, rendering the bond “void from the outset”; (3) the trial court acted in excess of its

jurisdiction when it declared Ted’s bail forfeited on October 5, 2017, and therefore, the

“$500,000 bond was exonerated as a matter of law before the events of March 8, 2018”;

(4) the anti-SLAPP statute “does not protect frivolous legal actions,” such as the

underlying breach of contract lawsuit; (5) the anti-SLAPP statute does not protect

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criminal activity, such as the actions of the bail agents on March 8, 2018; (6) the

litigation privilege also does not apply; (7) the bail agents cannot enjoy immunity for

their “totally lawless acts”; and (8) the Chuangs will prevail on their financial elder abuse

causes of action because (a) they were both over the age of 65 years on March 8, 2018,

(b) the bail agents “ ‘appropriated’ (and destroyed) [the Chuang’s] real property ‘for

wrongful use’ (to exonerate a bond which was already exonerated as a matter of law prior

to March 8, 2018),” and (c) Jose Espinoza knew the bond was both void and exonerated

when he nevertheless “decided to ‘recover’ [Ted] and charge [the Chuangs] $5,000 for

said ‘recovery,’ ” ultimately resulting in the “frivolous lawsuit . . . claiming that [the

Chuang’s] premium amount was unpaid, when there is no unpaid premium.”

In reply, cross-defendants addressed each of the foregoing arguments. We need

not recount the points made in reply in any detail. It suffices to note that cross-

defendants argued “[t]his is a classic Strategic Lawsuit Against Public Participation”

because the Chuangs “filed the [cross-complaint] for the sole purpose of intimidating

[Espinoza Bail Bonds] from pursuing their fee claim against them.” Cross-defendants

further argued the Chuangs had not demonstrated a probability of prevailing on the merits

of their causes of action.

Hearing on the Motion

A hearing on the anti-SLAPP motion was held in September 2021. While the

Chuangs were primarily self-represented in the trial court, and are also representing

themselves on appeal, counsel appeared at the hearing on their behalf for the limited

purpose of arguing against the motion. Counsel argued the financial elder abuse causes

of action were “mixed” in the sense of including “both protected and unprotected

activity.” Counsel argued the “bulk of the causes of action” were based on unprotected

activity occurring when the bail agents took Ted into custody at the Chuangs’ home,

“barging into [their] home, tear gassing them, throwing them around, . . . having them

watch their son being beaten and tased.” Counsel argued the trial court should “scratch

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the protected activity” (i.e., the filing of the debt collection lawsuit, as a basis for the

causes of action), “and then leave the rest to survive.” Counsel further argued that the

allegations regarding the filing of the lawsuit were “incidental or collateral” allegations,

and therefore, the anti-SLAPP statute did not apply at all.

In response, cross-defendants disputed the assertion that the filing of the lawsuit

was collateral to the financial elder abuse causes of action, pointing out “there are 14

separate allegations against [cross-defendants] for filing a lawsuit,” and arguing: “There

is no question that the purpose of this cross-complaint is retaliation. That is strictly

forbidden under the anti-SLAPP statute.” Cross-defendants also argued the Chuangs had

not shown “how [they] could possibly prevail” on their causes of action.

The Trial Court’s Ruling

After taking the matter under submission, the trial court issued a written ruling

granting the anti-SLAPP motion. The court explained that the financial elder abuse

causes of action “seek relief based on protected and unprotected activities,” which the

court concluded required it to move to the second stage of the analysis and determine

whether the Chuangs possessed a probability of prevailing on these causes of action. The

court concluded they did not, explaining the Chuangs had “failed to demonstrate how

entering their residence, breaking down their door, and otherwise damaging their house

deprived them of their property right to the residence.”

The Chuangs timely appealed. After delays for preparation of the record as well

as multiple continuances in the briefing schedule at appellants’ request, the case was fully

briefed on January 25, 2023, and assigned to the panel as presently constituted on March

1, 2023.

DISCUSSION

Section 425.16 provides in relevant part: “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

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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 anti-SLAPP statute . . . treats

complaints identically with cross-complaints” (City of Cotati v. Cashman (2002) 29

Cal.4th 69, 77), providing “ ‘plaintiff’ includes ‘cross-complainant’ and . . . ‘defendant’

includes ‘cross-defendant’ . . . .” (§ 425.16, subd. (h)).

“The purpose of anti-SLAPP motions is to weed out lawsuits designed to stifle

free speech or lawful expressive conduct.” (Yeager v. Holt (2018) 23 Cal.App.5th 450,

456.) Our Supreme Court has clarified the two-step process for litigating such a motion:

“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 v. St. Joseph Health

System (2021) 11 Cal.5th 995, 1009 (Bonni).)

This is a first-step case. Only those claims “arising from any act . . . in furtherance

of the . . . right of petition or free speech under the United States Constitution or the

California Constitution in connection with a public issue” are “subject to a special motion

to strike” under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) Thus, the first step of

the analysis requires us to determine whether the Chuangs’ claims arise from protected

activity. “At this first step, courts are to ‘consider the elements of the challenged claim

and what actions by the defendant supply those elements and consequently form the basis

for liability.’ [Citation.] The defendant’s burden is to identify what acts each challenged

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claim rests on and to show how those acts are protected under a statutorily defined

category of protected activity.” (Bonni, supra, 11 Cal.5th at p. 1009.)3

As relevant here, section 425.16, subdivision (e) provides: “As used in this

section, ‘act in furtherance of a person’s right of petition or free speech under the United

States or California Constitution 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; . . . (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.”

The cross-complaint asserts two causes of action for financial elder abuse.

“[F]inancial abuse of an elder occurs when any person or entity takes, secretes,

appropriates, or retains real or personal property of an elder adult to a wrongful use or

with an intent to defraud, or both.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,

174.) The factual bases for these causes of action are the following: (1) the filing of the

breach of contract lawsuit; (2) other debt collection activities, such as the making of

threatening phone calls; and (3) the conduct of the bail agents when taking Ted into

custody at the Chuangs’ house.

The Chuangs concede the first factual basis amounts to protected activity, and we

agree. “ ‘The filing of lawsuits is an aspect of the First Amendment right of petition’

[citation], and thus is a protected activity under the anti-SLAPP statute.” (Sheley v.

Harrop (2017) 9 Cal.App.5th 1147, 1165.)

3 Although Bonni was decided prior to the filing of any appellate briefing in this case,

neither party’s briefing cites it and, tellingly, respondents/cross-defendants make no

attempt to distinguish the analysis and holding in Bonni from the instant case in their

briefing.

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The Chuangs argue, however, that the third factual basis--the conduct of the bail

agents--is unprotected by the anti-SLAPP statute, and the claim based on this alleged

conduct should have survived the anti-SLAPP motion.4 Cross-defendants disagree,

arguing only that “nothing in the [financial elder abuse causes of action] is unprotected

because every word is based on their claim to interfere [in] a lawsuit filed by [Espinoza

Bail Bonds] to collect a fee.” We agree with the Chuangs.

Where, as here, an anti-SLAPP motion has been filed to strike an entire cause of

action, a court must “examine the underlying acts individually” rather than seeking to

ascertain “the ‘gravamen’ or ‘principal thrust’ of the cause of action.” (Bonni, supra, 11

Cal.5th at pp. 1009-1010.) “Analysis of an anti-SLAPP motion is not confined to

evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from

protected activity or has merit. Instead, courts should analyze each claim for relief—each

act or set of acts supplying a basis for relief, of which there may be several in a single

pleaded cause of action—to determine whether the acts are protected and, if so, whether

the claim they give rise to has the requisite degree of merit to survive the motion.”

(Bonni, at p. 1010, citing Baral v. Schnitt (2016) 1 Cal.5th 376, 393-395.) And where, as

here, protected and unprotected acts are alleged as bases for the cause of action, the

claims arising from unprotected activity are “disregarded” (Baral, at p. 396), and the

second step of the analysis is reached only with respect to “each claim that does arise

from protected activity.” (Bonni, at p. 1009.)

4 The Chuangs’ appellate briefing does not argue the second factual basis is either

unprotected activity, and therefore not subject to the anti-SLAPP statute, or if protected

activity, they could nevertheless prevail on a claim of financial elder abuse based on debt

collection letters and phone calls. Any argument in this regard is therefore forfeited;

thus, we discuss it no further. (Badie v. Bank of America (1998) 67 Cal.App.4th 779,

784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with

reasoned argument and citations to authority, we treat the point as [forfeited]”].)

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Here, while cross-defendants state in conclusory fashion that “nothing in the

[financial elder abuse causes of action] is unprotected,” they do not make a specific

argument on appeal in support of a conclusion that the bail agents were engaging in

protected activity when they took Ted into custody and damaged the Chuangs’ house.

Moreover, the trial court specifically concluded these activities are unprotected. We

agree with the trial court’s assessment.

In Anderson v. Geist (2015) 236 Cal.App.4th 79, the Fourth District Court of

Appeal held execution of an arrest warrant by law enforcement officers was not protected

activity under section 425.16, subdivision (e)(4). While execution of such a warrant “is

of course ‘an act in furtherance of a criminal prosecution,’ ” as the defendants argued in

that case, the appellate court concluded “extending protections of the anti-SLAPP statute

to such activity” would not serve the goals of the anti-SLAPP statute because “the

execution of a warrant is not an exercise of rights by the peace officer; it is the

performance of a mandatory duty, at the direction of the court.” (Id. at pp. 86-87.)

Moreover, section 425.16, subdivision (e)(4) requires the conduct to be “in connection

with a public issue or an issue of public interest.” This requirement was also not met

where the arrest warrant that was executed was “a routine misdemeanor warrant in a case

that apparently attracted precisely zero public interest or discussion.” (Id. at p. 87.) The

situation here is similar.

While Ted was arrested by bond agents seeking to protect their surety, rather than

law enforcement officers performing their mandatory duties, we conclude the result is the

same. Taking Ted into custody was not an exercise of constitutionally protected rights,

but rather a business decision by cross-defendants authorized by the trial court’s issuance

of the warrant and the terms of the bail and indemnity agreements. Nor was returning

Ted to custody following his failure to appear remotely connected to a public issue or an

issue of public interest.

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In sum, having correctly concluded the claim based on the bail agents’ conduct at

the Chuangs’ house was unprotected, under Bonni the trial court was required to end the

anti-SLAPP analysis with respect to that claim.

We need not address the second step of the anti-SLAPP analysis because that step

is reached only with respect to “each claim that does arise from protected activity.”

(Bonni, supra, 11 Cal.5th at p. 1009.) The Chuangs concede the claim based on the filing

of the lawsuit arises from protected activity, and they do not assert on appeal that there is

a probability they may prevail on this claim. Thus, as the Chuangs acknowledge, the

anti-SLAPP motion should have been granted, “but only in part.” The result is a partial

affirmance and partial reversal of the order granting the anti-SLAPP motion.5

One item remains: attorney fees. After the trial court granted the anti-SLAPP

motion, cross-defendants moved for attorney fees and costs pursuant to section 425.16,

subdivision (c). The trial court awarded $30,555.00 in attorney fees and $466.85 in costs.

On appeal, the Chuangs argue this amount should be reduced because the anti-SLAPP

motion should not have been granted in its entirety, but only in part. We conclude the fee

award must be reversed and the matter remanded for reconsideration.

“ ‘An award of attorney fees to a partially prevailing defendant under section

425.16, subdivision (c) . . . involves competing public policies: (1) the public policy to

discourage meritless SLAPP claims by compelling a SLAPP plaintiff to bear a

defendant’s litigation costs incurred to eliminate the claim from the lawsuit; and (2) the

public policy to provide a plaintiff who has facially valid claims to exercise his or her

constitutional petition rights by filing a complaint and litigating those claims in court.

5 Whether the claim based on the bail agents’ conduct should proceed to trial is not a

matter for us to decide in this appeal. We do note that cross-defendants have filed a

demurrer to the cross-complaint. In ruling on the demurrer, the trial court will be able to

determine whether the remaining claim sufficiently states a cause of action for financial

elder abuse.

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[Citations.] In balancing these policies, . . . the court should first determine the lodestar

amount for the hours expended on the successful claims, and, if the work on the

successful and unsuccessful causes of action was overlapping, the court should then

consider the defendant’s relative success on the motion in achieving his or her objective,

and reduce the amount if appropriate.” (Malin v. Singer (2013) 217 Cal.App.4th 1283,

1305.)

Here, the trial court did not consider whether to reduce the fee award based on

cross-defendants’ partial success because, as is obvious, it granted the anti-SLAPP

motion in its entirety. We express no opinion with respect to whether the fee award

should be reduced. That is a matter for the trial court on remand.

DISPOSITION

The order granting cross-defendants’ anti-SLAPP motion is affirmed in part and

reversed in part. To the extent the anti-SLAPP motion was granted as to the Chuangs’

elder abuse claims arising out of the protected activity of filing a lawsuit, it is affirmed.

To the extent it was granted as to their claims arising out of the unprotected activities of

the bail agents, it is reversed. The trial court’s subsequent order awarding attorney fees

and costs is also reversed and the matter is remanded for reconsideration. The parties are

to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/

Duarte, Acting P. J.

We concur:

/s/

Boulware Eurie, J.

/s/

Mesiwala, J.

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