ROWLAND J. MARTIN Appellant Case No. 04-14-00483-CV

TEXAS COURT OF APPEALS

v.
EDWARD BRAVENEC AND 1216 WEST AVE. INC. Appellees FOR THE FOURTH DISTRICT

BEXAR COUNTY, TEXAS 

### APPELLANT'S SUPPLEMENTAL MOTION FOR REHEARING T&RE9UESa; 

## ANEXPEDITED JUDGMENTAND WRITRELIEF ONTHE PLEADI?feS gj TO ENFORCE THE TEXAS CITIZEN'S PARTICIPATIONAGT^ ro ——T7 <r> -i.-j-r~ TO THE HONORABLE FOURTH COURT OFAPPEALS: m ->-. 3 5?° u^



### Pursuant to Sections 27.003 and 51.014(a)(12) of the Texas Citizen's Participation Ast <•:' -'• '"' CO >[?-. (TCPA) andRule 91 of the Texas Rules ofCivil Procedure (TRCP), Appellant files this "Supplemental Motion ForRehearing To RequestAn ExpeditedJudgmentAnd Writ Relief On The Pleadings To Enforce The Texas Citizen's Participation Act, "to supplement his motion for 

### rehearing filed onFebruary 12,2015 as follows: (a)to requestjudicial notice ofbriefing amendments filed on January 30, 2015 and February 19, 2015; (b) to move for special exceptions from the Appellees' cause of actionto reflect fraud on the trial court on July 9, 2014 and July 17, 2014, and again in this Court on January 30, 2014; and (c) to move the Court for ajudgment and writ reliefon the pleadings as ofFebruary 19, 2015. In support, Appellant requests notice ofthe supplemental record filed by the Clerk on February 19, 2015, and waiver ofany and all procedural restrictions inconsistent with Open Courts Doctrine. Criswellv. Ginsberg & Foreman, 843 S.W.2d 304, 306-07 (Tex.App.—Dallas 1992, no writ) (reversing turnover order).

STATEMENT OF THE FRAUD ON THE COURT ISSUE Familiarity with Appellant's First, Second, Third and Fourth Issues For Interlocutory Review, and twelve points of error in the briefings of record, is assumed, particularlythose noted

### inthe fraud onthecourt advisory amendments filed onFebruary 19, 2014. Insummary, Appellant requested dismissal astheowner of apurchase money lieninterest relating backto a 

### purchase transaction byMoroco Ventures, LLC inOctober of2003, that the purchase money transaction is separateand collateral to subsequent secondlien transactions and first lien 

### assignment executed by attorneys with theLaw Office ofMcKnight andBravenec, andthathis paramount interest arising from the purchase money transaction was neither forfeited nor 

### extinguished by the post-petition foreclosure sale onOctober 3, 2006 during Bankruptcy Case No. 06-15829. Appellant incorporates chain of titleevidence in the Supplemental Record forthe 

### property known as 1216 West Ave. San Antonio Texas, filed onorabout February 19, 2015. The major live issue istheaccrual of aresulting trust onJuly 8, 2014 ofwhich Appellant 

### is acreditor beneficiary. As set forth inAppellant's February 19th Amendment, the testimony offered in opposition to dismissal onJuly 9, 2014 andJuly 17, 2014, byAttorneys Bravenec and Deadman, concealed a conveyance oftitleto the subject property to Torralba Properties, LLC the 

### preceding day, July 8,2014, and fabricated evidence to satisfy theinjury element ofAppellees' claim for temporaryinjunctiverelief. Appellantcontendsthat fact situationdocumented in the currentstate of the record negates all the essential elementsof the Appellees' cause of action. A diligent search for authority reveals no other case in the history ofAnti-SLAPP litigation in theUnited States withrecord evidence offraud on the courtandmultiple violations ofautomatic stay laws all in the samecase. Cf, Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005) appealedin Super. Ct. No. CV780187 (Cal. 2005) (lack of trial court jurisdiction due to appeal in Anti-SLAPP casetriggering automatic stay); Jones v. Beckman, 

### 2007 Cal. App. LEXIS 8326 (Cal. App., 2007) (invalidating movant's unauthorized cross appeal in Anti-SLAPP lis pendens case). The misrepresentations here were material because theresulting trust accruing with the transfer to Torralba negates an essential element of the 

### plaintiffs case fortortious interference invoking thetrialcourt'splenaryjurisdictional, andthus impaired the trial court's capacity to administerjusticeon July 17, 2014. 

### OnDecember 8,2014 the Court declined to entertain Appellant's request forimmunities 

### from the trial court's order denying Appellant's plea tojurisdiction onthe grounds thatthe Tex. Civ. Prac. &Rem. Code limits such interlocutory appeals to governmental litigants, and on February 2,2015 stated that"in disposing ofthis appeal, this court will consider only those issues raised in appellant's briefthatrelate to theorders this court has expressly identified asthe subject ofthis appeal." Nonetheless, inview oftheissues offirst impression, Appellant respectfully declines, in the absenceof more detailedguidance, to read the Court's orders to meanthat TCPA Section27.011(a) withholdsjurisdictionto enforceimmunitiesfrom fraud on 

### the court and automatic stay violation transpiring during aperfected interlocutory appeal. Inthe interest of judicial efficiency, therefore, Appellant respectfully requests theCourt to give effect to the text ofTCPA Section 27.011(a) by granting special exceptions to immunitize his appeal 

### from Bravenec andDeadman's misconduct, byreversing thetrialcourt, andby granting temporary injunctive reliefto maintain the status quo pending the conclusion of the interlocutory appeal. As shown by evidenceand arguments presentedbelow, it simply cannot be said here that the Appellees are engaged in a goodfaithargument forextension of existinglaw on Section 27.011(a) which might excuse their apparent misconduct or otherwisejustify leave to amend.

LEGAL AUTHORITY FOR REVIEW OF A FRAUD ON THE COURT ISSUE IN AN ANTI-SLAPP INTERLOCUTORY APPEAL 

### The question of lawoffirst impression for denovo review is whether theTCPA grants authority to adjudicate fact issue about a resulting trust that accrues in connection with a non-movant's fraud on the courtor badfaith conduct incidental to the denial of an interlocutory TCPA motion to dismiss. As a general rule, theprotection provided by remedies for "Strategic Lawsuits Against Public Participation" ("SLAPP") is a substantive immunity from suit,Batzel v. 

### Smith, 333 F.3d 1018,1025 (9th Cir. 2003), cert, denied 541 U.S. 1085 (2004), thepurpose of which in the specific context of the TCPA, is to "encourage andsafeguard the constitutional 

### rights ofpersons to petition, speak freely, associate freely, and otherwise participate in government to themaximum extent permitted by lawand, at the same time protect therights of a person to file meritorious lawsuits fordemonstrable injury. Tex. Civ.Prac. & Rem.Code Ann. § 27.002 (West Supp.2014). Arguably, a fraud on the court andanyissue incidental to it lie wellwithin the scope of the TCPA because the Act is designed to provide defendants in non-meritorious lawsuits the ability to have these suits dismissed early on. House Research Org., BillAnalysis, Tex. H.B. 2973, 82nd Leg, R.S. (2011); Senate Research Ctr., BillAnalysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). If a legal action is "based on, relates to, or is in responseto a party's exerciseof the right of free speech, right to petition, or right ofassociation, that party may file a motionto dismiss the legalaction." Tex.Civ.Prac. & Rem.Code Ann. § 27.003(a) and (b)(West Supp.2014). Ifthe motion is denied, the moving party is authorized to commence an interlocutory appeal which has the effect of staying all trial courtproceedings. Tex.Civ. Prac. &

Rem.Code Ann. 51.014. Regarding appeals, Section 27.008 provides that "[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss

a legal action under Section 27.003 ..." Id. The texts ofSection 27.008 and 27.011 means that 

### thecourts ofappeals have authority to adjudicate a fraud onthe court issue in aninterlocutoryappeal, as shown more specifically by theprovisions in subsection (a)that "[t]hischapter does not abrogate or lessen any other defense, remedy, immunity, or privilege availableunder other 

### constitutional, statutory, case, or common laworrule provisions," andin subsection (b)that "[tjhischapter shall beconstrued liberally to effectuate itspurpose andintent fully." Id. Inthis regard, TRCP 91 provides explicit procedural support forallowing special exceptions in an interlocutory appeal to the Courtto fully ascertain its Anti-SLAPPjurisdiction. Historically, the common lawimmunities from fraud on the courtredressible through a 

### motion for special exceptions are available to aproponent who shows "anunconscionable plan or scheme which is designed to improperly influence the court in its decision.'" Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978). Onlythe mostegregious misconduct suchas fabrication ofevidence by attorneys will constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322U.S. 238, (1944); 7 J. Moore, FEDERAL PRACTICE, p 60.33
at 510-11. As the Supreme Court in Hazel-Atlas prior to the 1946 revision ofRule 60: Federal courts

... long ago established the generalrule that they would not alter or set aside theirjudgments after the expirationof the term at which the judgments were finally entered. This salutary general rule springs from the belief that in most instances society is best servedby putting an end to litigationafter a case has been tried and judgment entered.... From the beginning there has existedalong side the term rule a rule ofequity to the effect that under certain circumstances, one ofwhich is after-discovered fraud, reliefwill be granted against the judgments regardless ofthe term oftheir entry. Id, at p. 244. (citations omitted). The specific elements offraud on the court have been held to consistofconduct: (1) on the part of an officer of the court; (2) that is directed to the "judicial machinery" itself; (3) that is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; (4) that is a positive averment or is concealment when one is undera duty
to disclose; and (5) that deceives the court. Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993).Appellant'sdiligent searchfor doctrinal guidance on the processing of fraud on the court issues in the specific contextof the Anti-SLAPP lawspointsto only one other case in the entire 

### nation where such anissue hasbeen judicially noticed, the California Supreme Court decision in Wilson v. Parker, Covert &Chidester, 123 CR2d 19(Sept. 2002) (case attahced). Wilson 

### involved amalicious prosecution controversy following reversal ofatrial court's order denying thedefendants' Anti-SLAPP motion. The issue was whether thetrial court's ruling established thattheplaintiffs originally hadprobable cause to bring their original suit, andif so whether the probable cause factorbarredthe defendants' malicious prosecution claim. The California 

### Supreme Court reasoned that thetrial court's denial oftheAnti-SLAPP motion implied thatthe original claim had atleast some merit, and thatabsent proofthatthetrial court ruling was obtained by fraud, a claim formalicious prosecution would not liethough theruling waslater reversed on appeal. As shownin HomeyTel v. Moser, 2004 WL 829006 (Cal. App, 2004), the remedies 

### provided byCalifornia's law ofmalicious prosecution serve a structural purpose that is directly analogous to the purpose ofAnti-SLAPP laws in general: Malicious prosecution is actionable because it harms the individual againstwhomthe claim is made, andbecause itthreatens the efficient administration of justice. Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset... Furthermore, holding an attorneyliable for damages that result fromprosecuting a civil claim after he or she learns that the claim has no merit encourages voluntary dismissals ofmeritless claims at the earliest stagepossible, assists the efficientadministration of justice, and reduces harmto individuals targeted by meritless claims. Moreover, by advising a client to dismiss a meritless case, the attorney willhelp ... limitthe client's exposure to liability for malicious prosecution. Id. at p. 7, citing Bertero v. National General Corp. (1974) 13 C.3d 43, 118 C.R. 184, 529 P.2d 608, 5 Summary (9th), Torts, §435.). Since the structural objectives ofmalicious prosecution law



### are virtually synonymous with those that TCPA Section 27.003 serves bydesignating certainevents in litigation for interlocutory review, it follows from a liberal construction ofthe Act that the known legislative intent cannot be fully accomplished fraud on the court is excluded from the grant of statutoryauthorityto entertaininterlocutory appeals. 

### The TCPA's procedures for expedited appeals encapsulate theethos ofTexas lawforjus cogens standards of judicial conduct, toward plaintiffsand defendants alike, where enumerated 

### freedoms are at stake pertaining to theexercise theright to free speech, to petition, and to participate in government to themaximum extent permitted bylaw. Particularly noteworthy among these standards is the rulethat judgment andorders are voidab initio, notmerely 

### voidable, when rendered bya coram nonjudice tribunal, such as atrial court thatattempts to exercisejurisdiction afterthe activation of an automatic stay. Larry York v. State, 373 S.W. 3d 32 (2012). The statelawrules against void judgments is binding on the intermediate statecourts, 

### andsupercedes federal court choice of lawexcept when decisions of theU.S. Supreme Court are inplay. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (percuriam). Compelling prudential support for the prompt adjudication offraud on the court issues in

anAnti-SLAPP interlocutory appeal is found inAmalfitano vRosenberg, 428 F. Supp. 2d 196 (S.D.N.Y., 2006), appealed in 533 F.3d 117,125 (2d Cir., 2008), certified tostate court in 12 NY3d 8 (N.Y. App., 2009). There, a summaryjudgment secured by fraud in a prior case compelled the federal courts to certify to the state court a question about whether reliance was a mandatory elementof attorneydeceit underNew York's anti-deceitstatute codifyingthe ancient common law remedies under the Statute of Westminster.Amalfitano provides a strong justification fordistinguishing special exceptions eligible for discretionary review under Section 27.011(b), from privateparty pleas to jurisdictionthat are categorically barredfrom reviewunder 

### Section 51.014(a). Itgoes without saying that constitutional and prudential standing and plenaryjurisdiction are indisputably essential elementsof anyjusticiable cause of action. Thus, a treatment of the Act that givesprecedence to the general purposes of Section51.014(a) over the 

### special rules ofconstruction mandated inTCPA Section 27.011(a) defeats the Act's purpose. Theprocedures in TRCP91 for special exceptions are the customary vehiclefor challenging fatal deficiencies in an adverse parties' pleadings, andmaybe usedto assertthat the 

### adverse party has notpleaded a valid cause ofaction atall, Mowbray v. Avery, 76 S.W.3d 663, 677 (Tex. App.—Corpus Christi 2002, pet. denied), in which case theotherwise available right to amend is forfeited. Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 335 (Tex. App.—Fort Worth2005,pet. denied). The grantor denial of special exceptions is reviewed for abuse ofdiscretion. Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000,

nopet.)). A special exception is generally adequate if itpoints out withspecificity howthe plaintiffs allegations are faulty, so as to differentiate the exception from a general demurrer. The 

### allegation thataparty has failed to plead a cognizable tortsupports a special exception. See TEX. R. CIV. P. 90; see also Castano v. San Felipe Ag. Mfg. & IrrigationCo., 147 S.W.3d444, 453 (Tex. App.—San Antonio 2004, no pet.). The TCPA's sanctions provisions also support the conclusion that a fraud on the court issue isjusticiable on interlocutory appeal. Once a determination is made in a dismissal proceeding about the identityofthe culpableparty, "[fjhe TCPA treatmentof [sanctions] is equivalent to that permitted for vexatious litigation tactics in Fed. R. Civ. P. 11 and 37,as well as 28 U.S.C. § 1927." Williams v. Cordillera Communications, Inc., Case No. 2:13-CV-124 (S.D. Tex., November24,2014), at p. 2; cf, Goad v ZuehlAirport FlyingCommunity Owners Association, Inc., CaseNo. 04-11-00293-CV (Tex. App. - SanAntonio, May23,2012) (rejecting vexatious litigant treatment). Fraud on the court is a well-known vexatious tactic thatr is covered by Rule 11, Section 1927 and statelawpublic policy principles: "For the lawto
countenance ... abrupt and shameless shift[s] ofpositions would giveprominence (and 

### substance) tothe image thatlawyers will take any position, depending upon where the money lies, and that litigation is a mere game and nota search for truth ..." Zuniga, Id. at p. 318 cited in Britton v. Seale, 81 F.3d 602 (5th Cir.1996).

ARGUMENT AND AUTHORITIES A. TRCP 91 Supports Five Special Exceptions To Appellees' Cause Of Action Due To Bravenec/Deadman's Fraud On The Court And Bad Faith Conduct. Pursuant to TRCP 91, Appellant moves the Court to grantspecial exceptions forfraud on 

### the court inCase No. 2014-CI-07644 leading to formation ofaresulting trust ofthe subject property on July 8, 2014 of whichAppellant is the paramount beneficiary. TEX. R. CIV. P. 91.1 

### "Only wiping the slate clean will restore the [Appellant] to theposition hewould have occupied had due processbeen accorded to him in the first place."Security State Bank & Trust v. Bexar County, etal, Case No. 04-11-00928-CV (Tex. App. - SanAntonio 2012), at p. 10; seealso, Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin-1963) (quiettitle case involving client requestto cancel deed used for in-kindpayment), and Barranza Family Limited Partnership v. Levitas, Case No. 13-07-00470-CV (Tex.App. 13th Dist. - Corpus Christi, 2009) (right of interested party principle to an accounting).

1. Fraud On The Court Appellant asserts for his first Rule 91 special exception that the Bravenec and Deadman engaged in an actionable fraud on the court on after July 9, 2014 and July 17, 2014. In an ordinary case, the recording ofa notice of a lis pendens simply means that the interest ofthe 

### 1 Ifthe Court determines that the procedure in Rule 91 does not furnish an adequate remedy atlaw, thenAppellant respectfully requests to reopen the original proceeding in CaseNo. 04-14-00841-CV, to revive grievances from theclosed proceeding inCase No. 04-14-00670-CV, andto incorporate thetwo in a reopened original proceeding for extraordinaryrelief. Zuniga, Id.grantor passes to the grantee subject to a determination by the court, Cherokee Water, Co. v Advance Oil & Gas, Co., 843 S.W. 2d 132, 135 (Tex. App.

- Texarkana 1992, writden'd), and 

### when reviewing issues about special exceptions, thecourts ofappeals accept as true allthe material factual allegations andstatements reasonably inferred from the allegations setforth in the pleadings. Here, Bravenec concealed a transfer to Torralba which he was under a direct or 

### indirect duty to disclose. Appellees' standing to request apermanent injunction is vitiated in its entirety bytheirfraud on thecourt or badfaith conduct arising from theevidentiary contradiction between Bravenec's sworn deed record showing thathe conveyed theproperty on July8, 2014, and Deadman's concealmentofthe conveyance from the trial court in his dual role as witness and attorney on July 17, 2014. In short, Bravenenc and Deadman committed fraud on the court 

### byignoring thegoverning rules oflaw on lispendens speech, and bygiving testimony to fabricate the appearance of an injury that is nonexistent according to Cherokee Water, Id. 2. Estoppel By Deed Barring Appellee From Denying A Resulting Trust. Appellant assertsfor his second special exception thatAppellees are estopped form denying the validity of deedrecords establishing the accrual of a resulting trust in connection withthe unnoticed transferto Torralba. A sale affected by fraud or mistake ofproperty underthe supervision ofa reviewing court is subject to being construed as a resulting trust and set aside by the reviewingcourt. Security, Id. In Security, the Court voided a tax sale that was executed by mistake without noticeto a recordlienholder, andremanded the case for furtherproceedings on the lienholder's quiet title claim. Id. at p. 10. Here, Appellees' transfer to Torralba was incidental to a fraud on the court in violationof dueprocess. The resultingtrust that arose from these acts negates the Appellees' standing as the real parties in interest oftheir cause ofaction. Id. 3. Bad Faith Conduct Arising From The Dual Role Of Appellees'Attorney As Attorney And Witness.

10Appellant asserts for his third special exception that Deadman acted in a dual role as an attorney andwitness in giving testimony, inresponse to a direct question from thepresiding 

### judgeposed in open court in the28rth Judicial District Court, which falsely identified One For 

### Autism asthe prospective purchaser. Deadman made apositive averment onJuly 9, 2014 by stating hispersonal beliefthatOne forAutism was theprospective purchaser when the Court 

### inquired about the purchaser's identity. Deadman's statement showed reckless disregard for the truth and a failure to conductreasonable pre-filing inquiries in connection with the First Amended Petition filed on July 8, 2014 in that Torralba was the record owner as ofthat date. 

### Therefore, Rule 91 is applicable to challenge Deadman's dual role inthealleged scheme. 4. Lack OfFederal Question Jurisdiction And Equitable TollingUnder 28 U.S.C. 1367. Appellant asserts for his fourth special exception that Appellees' resjudicata and statute oflimitations arguments are invalid, as is their premise that the Fifth Circuitexercisedfederal questionjurisdiction in anyfinaljudgment or orderto giveresjudicataeffect to thejudgment in Martin v. Grehn in CaseNo. 13-50070 as an adverse ruling on the purchase moneytransaction 

### alleged inAppellant lispenden notice ofrecord onJuly 8,2014. Chisholm, Id. Contrary to Appellees contentions, it misses the point to allege that Appellant is not the holder ofa valid right ofredemption because the allegation is thatAppellant is the owner of a thirdpartypurchase moneylien, and that federal law in 28 U.S.C. 1367mandates equitabletolling ofunadjudicated state law claims surviving a closed federal case. Id. Under the circumstances, 28 U.S.C. 1367 

### dictates byoperation of lawthatthestate courts havejurisdiction over unadjudicated legal malpractice claims, estoppel by deed, and purchasemoney issues in Case No. 04-14-00483-CV. Chisholm, Id.

115. Impermissible Prior Restraints On Speech And Contractual Obligations. Appellantasserts for his fifth specialexceptionthat the cause ofaction to suppresspast andfuture speech as documented in the gagorderof July 17, 2014 is inherently non-meritorious andabsurd. TheAppellees' cause ofaction styled as Case No. 2014-CI-07644 clearly qualifies as a judicialproceeding withinthe meaning of Section 27.005 and the lis pendens noticeof record as of July 8, 2014wasa communication within themeaning ofsubsection (c) eligible for 

### theprotection as specified in Section 27.01 l(a).The gag order onJuly 17, 2014 was overlybroad because the "PerfectedNotice OfLisPendens" met all the statutory conditions for recordationin deedrecords including reference to Case No. 2014-CI-07644. Long Beach Mortg. Co. v. Evans, 

### 284 S.W. 3rd 406, 416 (Tex. App. Da;;as 2009) cert, denied 130 S. Ct. 3470 (2014). As the Texas Supreme Court recently stated, "[g]iven the inherently contextual nature ofdefamatory speech, eventhe mostnarrowly crafted ofinjunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged." Kinney

v. Barnes,No. 13-0043 (Tex. 2014), at p. 10 and 17. The instigation by Bravenec and Deadman of a gag order to restrain future speech exerted a defiling effect on the judicial process by causing departures from compliance with substantive due process principles. The unbounded scope ofthe gag order is non-compliant with the rule ofthe Court. Markel V. World Flight, Inc., 938 S.W.2d 74 (Tex. App.-SanAntonio 1996, no writ) (enforcing rule against priorrestraints).2

2 Although therecorded lispendens filing involved a substantial degree ofpublished speech, moreover the Kinney decision is applicable and protectsthe lis pendens underthe rule againstprior restraints because an equally substantial partof the published lis penden noticeby definition encompasses future communications in support of judicial proceedings thatrelate notonly to theinstant interlocutory appeal proceeding which is ongoing, but a possible resumption of trial courtproceeding on a remand that has yet to occur, not to mention adjunct proceedings in Martin v. Bravenec, Case No. 14-50093 in the U.S. Court ofAppeals.

12B. On The Merits, Appellees' Lawsuit Is An Unmitigated Sham Warranting An Expedited Dismissal For Grossly Insufficient Evidence. 1. The Existing State Law Anti-SLAPP Scheme Covers Lis Pendens Speech. With or without specialexceptions, Appellees' cause of action disintegrates once untethered from the illusory fact issuesproffered in their motionofJanuary 30, 2015,most notably that no causeof actionor claimcovered by Chapter27 was plead. SeeAppellees' Motion of January 30, 2015atparas. 13 and16. Careful examination reveals that their legal actionis an artfully crafted slanderof title suit thatresponds on its faceto the exercise of the right of free speech andto petition, James, etal, v. Calkins, Case No. 01-13-0018-CV (Tex. App.

- Houston [1st Dist] August 21, 2014), is unsupported sufficient evidence to meet the TCPA's clear and specific evidence standard, Newspaper Holdings, Inc. v. Crazy Hotel AssistedLiving, Ltd., 416 S.W.3d 71; (Tex. App- 1stDist.- Houston 2013), and leadsto absurdresultsin applying Section27.005 (c) to lis pendens disputes in general, LaJolla Group II, et al. v. DanielA. Bruce, et al, Case No. F061829 (Cal. App.) (see case appendix). The plain meaning ofthe text of Section27.005(c) covers the lis pendensactivitiesat issue in the judicial proceedings below, and structurally implies that tort claims to suppress future speech are an improper means to challenge the evidentiary merit ofa property interest being communicated by a lis pendens claimant. Id. In short, their cause ofaction is a sham to deprive protected liberty and property interests ofa former client aggrieved by alleged legal malpractice on the part ofthe Law Office ofMcKnight and Bravenec. See VerificationAnd Declaration in Exhibit A. 2. The Appellees's Cause Of Action To Suppress Future Lis Pendens Speech Is Indisputably Based On The Exercise Of A Covered Right To Petition. The fact situation here is directly analogous to La Jolla where a California court of appeals ruled for the Anti-SLAPP movantson two grounds: "First, the absoluteprivilege ... was

13

### applicable to therecording ofthelispendens inthis case. Second, theevidence offorgery established as amatter oflaw that thesecond deed oftrust was void and, therefore, appellants never acquiredtitle to the Property. Each of these grounds would be a sufficientbasis to 

### conclude thatappellants have noprobability ofprevailing ....Id. Appellant contends thatthe subject matter of theAppellees' legal action, likethe subject matter of the action inLaJolla, 

### clearly supports Anti-SLAPP intervention tovindicate the exercise ofthe right to free speech and

to petition. 

### InJames, Id, Texas plaintiffs brought tortcases against the defendant filing party of a lis 

### pendens notice , and the state court ofappeals resolved the dispute against the non-moving party. Id. As such, James supplies a Texas lawprecedent forconstruing a lispendens notice as constitutionally protected speech withinthe meaning of the TCPA: Weagree that appellees' claims in the underlying case are "basedon, relate[] to, or [are] in response to" appellants' exercise of the rightto petition as defined by the TCPA. See id. §§ 27.00l(4)(A)(i), 27.005(b). As pleaded,appellees' actual and constructivefraud andbarratry claims are "based on, relate [] to, or [are] in response to" [theopposing parties'] allegedly fraudulently claiming that theyrepresent [thebeneficiary of guardianship] in pleadings filed in various lawsuits. See id. § 27.005(b). Likewise, appellees' fraudulent lien claim is "based on, relates to, or is in responseto" the lis pendens filed by [Appellant] with the Harris Countyclerk that gave notice of her claims against [Appellee] in the 61st District Court lawsuit, which seeks to cancel his transfer of [thebeneficiary's] home to a trustcontrolled byhim. All ofthese are "communication[s] in or pertainingto a judicial proceeding."See id. § 27.00l(4)(A)(i). Appelleesargue that that theseactions cannotbe constitutionally protected, but the casesthey cite do not apply the TCPA, or do not involve communications of the type at issuehere. Accordingly, we hold that appellants met theirinitial burdento provethat appellees' legal actionrelated to their exercise of the right ofpetition. See id. § 27.005(c). TheJames courtultimately agreedwiththe moving parties and upheldthe lis pendens notice because a dispute about an interest in real property was ascertainable from the face ofthe notice. 

### As such, theresult inJames supports Appellant's briefings andevidence advocating that Appellees tort theory is covered by the Anti-SLAPP laws ofTexas. Id.

14The treatment oflis pendens notices as a protected form ofcommunication in Jamesis consistent with treatments inthree similarly situated non-SLAPP cases onpoint. InRose v. 

### Rothrock, Case No. 08-3884 (E.D. Penn, 2009) (See cases inAppellant's Supplemental Appendix), a federal court denied a motion to impose sanctions against a Section 1981 lis 

### pendens claimant who had asserted anunadjudicated interest inanexecutory contract ofsale that 

### the defendants had allegedly breached. InLa Chappelle v. Superior Court of Riverside County, Case No. E058014 (Cal. App. 4thDist. 2013) (see case appendix), a state appellate court 

### concluded that aninconclusive foreclosure dispute does notnecessarily preclude the losing party 

### from future lis pendens filings. The LaJolla court held that the evidentiary merit ofthe noticing party's unadjudicated "void abinitio deed" issue notaproper basis for cancelling lispendens 

### privileges. In Wallace v. Kelley, 2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. 1, 2007) (See cases in Appellant's Supplemental Appendix), a federal court noted that 28 U.S.C. 1367 equitably tolled anyunadjudicated state lawclaims, eventhough the same courtsanctioned the pro se litigants there for filing notices oflis pendens after final dismissals oftheir federal case 

### against a mortgage backed securities trust defendant, and after state court proceedings to approve the sale of the subject properties hadconcluded. Id. Thus, treatment inJames is clearly consistent
with the national trend in Anti-SLAPP and Non-SLAPP cases. 3. Appellees' Evidentiary Showing Does Not Meet Their Burden OfProofOn The Merits Under The TCPA's Clear And Specific Evidence Standard. Whereas the non-movants in LaJolladenied that the second deed of trust was a forgery to satisfy their burdenofproof, Appellees attemptin futility here to establishinterference by relying on Bravenec's testimony at the July9,2014 hearing, andpastrulings in theirfavor in the 2010 case, Martin v. Grehn, Case No. SA ll-CV-0414. Appellees' reliance on Bravenec's 

### testimony alone is fatal to theirburden under the TCPA clear and specific evidence standard. The

15Newspaper Holdings courtdisposed of the tortious interference claimthere with the holding that "[t]o establish a causeof actionfortortious interference, a plaintiffmust provethat (1) a contract subject to interference exists, (2) the defendant committed a willful and intentional act of interference withthe contract, (3)the actproximately caused injury, and (4)the plaintiff sustained actual damages or loss .. .Ordinarily, merely inducing a contract obligor to do whatit has a right to do is not actionable interference." Id. The evidencehere supportsthe sameconclusion as in Crazy Hotel and LaJolla. Bravenec offeredtestimony under oath suggesting thatAppellant was interfering with a prospective sale to One To Autism when he knew or should have known a deed in his name was 

### filed to convey theproperty to Torralba the daybefore. As such, Appellees evidentiary showing not onlyserves to establish the opposite of the pointforwhich it is cited, but is subject to exclusion forpublic policy reasons according to the Court's decision in Zuniga v. Grose, Locke, &Hebdon, 878 S.W. 2d 313, 318 (Tex. App. SanAntonio 1994, writrefd). Theirargument fails underLaJolla for the additional reason that they offer no evidence"as to particular [purchase money] transactions" to show that the title they acquired had the effect of extinguishing purchase money interests, and legal authority whatsoever to justify exceptions from the separate transaction rule of res judicata doctrine. Anderson v. Law Firm of Shorty, Dooley & Hall, 393 Fed. Appx. 214 (5th Cir. Aug. 26, 2010) (applying separate transaction rule
to affirm denial ofsanctions). Appellees' evidentiary showing relying Bravenec and Deadman's textually unsupported anecdotal characterizations oforders rendered by the Hon. Senior U.S. District Court Judge Harry Lee Hudspeth are also subject to special exceptions and insufficient on the merits for several reasons. TheLa Jollacourtrejected an analogous version of the Appellees argument that

16

### Appellant hasno interest in theproperty bydisapproving thenon-movants argument to that 

### effect there: "A deed is void if thegrantor's signature is forged or if thegrantor is unaware ofthe 

### nature ofwhat heorshe is signing. Avoidable deed, on the other hand, is one where the grantor is aware ofwhat he orshe is executing, but has been induced todo so through fraudulent misrepresentations. Although the lawprotects innocent purchasers andencumbrancers ... that protection extends only to those who obtained good legal title ... [A] forged document is void ab 

### initio and constitutes anullity; as such itcannot provide the basis for a superior title as against the original grantor... Since the second deed oftrust was aforgery and was void, appellants received no title by it." LaJolla, Id. atp. 18-19. Here, Appellees have no evidence tonegate Appellant'spurchase money claims. Judge Hudspeth's final order in the 2010 federal civil case 

### facially concurs with theorder ofremand that U.S. Bankruptcy Judge Leif M. Clark earlier 

### rendered onSeptember 24, 2012, concluding that the state courts furnish anappropriate forum for Appellant's dispute with McKnight and Bravenec. Compared toLa Jolla's non-movants, Appellees "purported evidence

... was vague, equivocal (asto particular transaction) and 

### hearsay" analogous tothe insufficient evidentiary showing presented bythe purported creditors inUnifund CCR Partners v. Villa, 273 S.W. 3d385 (Tex. App. - San Antonio, 2008). 4. Multiple DefensesAndAffirmative Defenses Establish That The Appellees' Hypothetical Tortious Interference Case Leads To Absurd Results. 

### In theunlikely event thattheCourt discerns clear andspecific evidence to support each elementof Appellees' prima facie case, the Court's inquirydoes not end becausethe TCPA calls 

### forconsideration of themovant's defenses. Appellant asserts as hisprimary defense to the tortious interference claim thathis lispendens speech in general, andthefiling of a lispendens 

### notice inCase No., 2014-CI-0744 inparticular, did not impair the contracting parties in exercising therights they claimed to have, and thattheconveyance to Torralba is conclusive

17evidence of thatfact. Newspaper Holdings, Id. Therefore, Appellant requestsjudicialnotice of his affirmative defenses under the doctrine ofestoppel by deed, andhis undisputed status as a 

### holder ofencumbrances that run with the land. Urban RenewalAgency ofSan Antonio v. Bridges Signs, Inc., Ill S.W.2d 701 (Tex. App.—San Antonio 1986, writrefd n.r.e.); Cooke etal, v. Avery, 147 US 375, 13 S.Ct. 340, 37 L. Ed. 209 (1893). Appellant's estoppel by deed defense is equivalent in force and effect to the void order 

### defenses approved inLa Jolla and La Chappelle. La Jolla involved a special exception fact situation ofsorts where a California court ofappeals upheld a grant of anAnti-SLAPP motion forlispendens claimants of a property foreclosed with a forged deed. The foreclosure sale 

### purchasers, LaJolla Group II and itspartners, responded bysuing the movants and their attorney for slander oftitle. Inthe trial court, the purchasers contended that the recording ofthe lis pendens was not privileged, and wrongfully prevented them from selling the property. According to thenon-movants, the facial authenticity of the second deed was enough to establish thatthe lis pendens notice was unprivileged. 

### The movant owners responded byfiling an anti-SLAPP motion, alleging that (1)the recording of the lispendens was a protected activity, and(2)the appellants could prevail on the merits of their slanderoftitle claim, and the trial court agreed. In affirmingthe trial court's decision, the appellate court applied the standard ofreview that "the motion to strike should be granted if the defendant defeats theplaintiffs showing as a matter oflaw, suchas by establishing

a defense or the absence of a necessary element," andcited the evidentiary insufficiency of the non-movants' showing as thereason for granting anti-SLAPP relief. LaJolla, Id. {citing Carver

v. Bonds, 135 Cal.App.4th 328, 344 (2005)).

18La Chappelle involved a similarfact situationwherepurchasersat a nonjudicial foreclosure sale movedto expungea lis pendensby allegingthat the claimantcould not establish theevidentiary meritof his claim. In itsruling, the trial courtcited the following statement in 

### Miller andStarr (3rd ed.) section 10.208 to support itsruling: "Thepurchasers title (at a foreclosure sale)... is not encumberedby any interest that is created and recorded after the deed 

### oftrust, butprior to thedate of theforeclosure sale, even if the foreclosure sale purchaser had actual orconstructive notice of theintervening lienorinterest." Idat p. 2. Onappeal, theLa Chappelle courtofappeals concluded that the foreclosurejudgment was inconclusive about 

### whether or nottheunderlying deed was void: the lispendens claimant "stated grounds to set aside the sale based on the invalidity of the trust deed" and "he does claim an interest in the real 

### property sothatthetrial court erred inexpunging thenotice of lispendens." Id. at p. 4. Onbalance, Appellees' course of action in transferring the property and then still 

### claiming interference, leads to absurd results. These ill-advised claims, such astheir repeated attempts to equate a right ofredemption controversy with a purchase moneytransaction, are 

### doomed to fail because thedoctrine ofestoppel bydeed enjoins them from denying restrictive covenant evidence thatdemonstrates Appellant's status as a creditor beneficiary andpurchase
money lien owner. Urban Renewal, Id. Further, the 2006 order ofthe 57th Judicial District Court lacksresjudicata effectbecause the decretal clause statesmerelythat a foreclosure event occurredon October 3, 2006, and becauselimitations bars for the relevantunadjudicated state claimswere equitablytolled after the 2010 federal case by 28 U.S.C. 1367. Id. 3



### 3 See especially, Restatement (First) of Contracts § 136 (1932) ("[A] promise to discharge the promisee's duty creates a duty ofthe promisor tothe creditor beneficiary toperform the promise."). For case law onrestrictive covenants running with the land, seeDynamic Publ'g &Distrib. L.L.C. v. Unitec Indus. CenterProp. Owners Ass'n, Inc., 167 S.W.3d 341 (Tex. App.—San Antonio 2005, no pet); Munson v. Milton, 948 S.W.2d 813 (Tex. App.—San Antonio 1997, writ denied); Pebble Beach Prop.

19CONCLUSION AND PRAYER Thematter ofwhether Appellees' conduct on July 8, 2014, July 9, 2014and July 17, 

### 2014 caused a forfeiture oftheir cause ofaction, and led to aresulting trust ofwhich Appellant is 

### the paramount creditor beneficiary, is directly related toboth orders that the Court has designated

asthe subject ofthis appeal. Archer, Id. "On balance

... the costs tothe legal system [ofthe orders sustaining Appellees' cause ofaction for tortious interference with contractual 

### relations]... outweigh itsbenefits..." Zuniga, Id. at p. 318. Attorneys Bravenec and Deadman 

### deprived protected federal rights under color state law. But for resulting deprivations ofdue process through fraud on the courtandbadfaith conduct byMssrs. Bravenec andDeadman, 

### Appellant would have occupied the position ofcreditor beneficiary by operation ofestoppel by deed. Applying Zuniga, the Court has good cause towipe the slate clean by declaring that Mssrs. Bravenec and Deadman engaged in a fraud onthe court and bad faith conduct ingeneral, and 

### that aresulting trust that arose inconnection with their fraud on the court. An adequate remedy at lawis notavailable. Appellees have previously withheld compensation forthevalue of Appellant's interestsin restrictive covenants, equitableservitudes, escrow accounts and title 

### insurance policy benefits. They also multiplied their state litigation with anunauthorized poststay counter-appeal for affirmative reliefin U.S. Court ofAppeals Case No. 14-50093. See, SupplementalAppendixfiled onJanuary 30, 2015. Temporary injunctiverelief is due because Appellant's briefdemonstrates a probabilityof successon the merits of the case for TCPA relief, 

### and thatdenial ofinjunctive reliefwould, more likely than not, cause irreparable injury dueto 

### piecemeal litigation thatcannot beremedied with monetary damages. Cf,Amalfitano, Id. 4

Owners' Ass'n v. Sherer, 2 S.W.3d 283 (Tex. App.—San Antonio 1999, pet. denied); and Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ refd n.r.e.). 

### 4 Extraordinary reliefis welljustified to counteract increases and distortions in litigation such as these that have exerted ahighly undesirable long term effect on the integrity of thejudicial process since

20WHEREFORE, PREMISES CONSIDERED, Appellant praysthat the Court grantrelief 

### in allthings, for such other reliefbothin lawandin equity as hemay bejustlyentitled. Dated: February 25, 2015 Respectfully Submitted,

Rowland J. 951 Lombrano San Antonio, Tx 78207 (210)323-3849

CERTIFICATE OF SERVICE 

### I mailed a copy of this "Supplemental Motion ForRehearing ToRequest AnExpedited 

### Judgment And Writ ReliefOnThe Pleadings To Enforce The Texas Citizen's Participation Act,: to GlennDeadman and TorralbaProperties, LLC on February 25.

Rowland J.

thattime. State Farm Fire &Casualty Co., v. Gandy, 925 S.W. 2d696, 707-11 (Tex. 1996). The only conclusion one canplausibly reach is thatBravenec andDeadman'sconduct represents an egregious endaroundon Anti-SLAPP laws and Disciplinary Rules OfProfessional Responsibility in general. Temporary injunctive relief is alsojustified. On information and belief, a clear and present risk exists that Bravenec is usingthe extension of time granted on February 2, 2015 in an attempt to conceal assets or assist intheir concealment, togain time tohinder satisfaction ofAppellant's third party purchase money lien interest, and to delay accountability forhisputative legal malpractice liability. Keck, Mahin andCate v. National Union Fire Insurance Company, 20 S.W. 3d692) (Tex. 2000); In reLiberty Trust Co., 130 B.R. 467 (W.D. Tex. 1991) (pro-client rule onattorney withdrawal when unsupported byformal order of discharge).

21ROWLAND J. MARTIN Appellant Case No. 04-14-00483-CV
TEXAS COURT OF APPEALS

v. FOR THE FOURTH DISTRICT
EDWARD BRAVENEC AND 1216 WEST AVE. INC. Appellees BEXAR COUNTY, TEXAS

A.

B.
C.

D.

E.

F APPENDIX FOR MOTION Verification and Declaration of Appellant Rowland J. Martin 

### Wilson v. Parker, Covert &Chidester, 123 CR2d 19(Sept. 2002) La Jolla Group II, etal. v. DanielA. Bruce, etal, Case No. F061829 (Cal. App.) 

### La Chappelle v. Superior Court ofRiverside County, Case No. E058014 (Cal. App. 4th Dist. 2013) Draft Order Granting Partial Relief On Appellant's Motion In Case No. 04-14-00483-CV 

### Proposed Interrogatories ToAttorney Glenn Deadman Regarding Allegations In Support OfRule 91 Special Exceptions.

22

# A

23ROWLAND J. MARTIN Appellant Case No. 04-14-00483-CV

TEXAS COURT OF APPEALS

FOR THE FOURTH DISTRICT
EDWARD BRAVENEC AND 1216 WEST AVE. INC. Appellees ) BEXAR COUNTY, TEXAS
VERIFICATION AND DECLARATION OF ROWLAND J. MARTIN I, Rowland J. Martinaffirmunderpenaltyof perjurythat the statements in foregoing motion forjudgment on the pleadings and writ reliefare true and correct to the best of information, knowledge and belief, except as to matters stated on belief, as to those I believe them to be true: 1. This verification and declaration is to assure the Honorable FourthCourtofAppeals that I did not know at the time of the hearingon July 17, 2014that a deedconveying real property at 1216 West Ave., in San Antonio, Texas, was recorded by Edward Bravenec in favor of TorralbaProperties on July 8, 2014. Bravenec'stestimony on July 8, 2014 led to believe the title was still in his name. I discovered the transfer from Glenn Deadman in a conference call on or aboutDecember 1, 2014, whichI can corroborate by phonerecords. 2. My realproperty interests form the basis of the chainof title for the WestAve. property oh July 8, 2014 as set forth in the Clerk's Supplemental Record filed on or about February 18, 2015.1 have personal knowledge ofthe chain oftitle records and believe the statements ofrecord regarding them are true and accurate. 3. I have thoroughly examined the transcript of Bravenec's testimony about my interest at the July 9, 2014 hearing. To the best ofknowledge, he testified that the relevant pendent lite purchasers all had actual knowledge ofmy interests ofrecord as ofJuly 8, 2014.1 also believe this to be true, although my direct contacts were limited to One For Autism. 4. I regard the remainder ofBravenec's testimony, to the effect that that I have no interest in the subject property, as a statement made in furtherance ofhis apparent fraud on the court, not as a statement offact. Ifthe federal courts had finally concluded that I have no interest in the property, as Bravenec attempts to lead the Court to believe, there would be no basis for the ongoing appeal in Martinv. Bravenec, Case No. 14-50093 that has been under review since last year. I have personal knowledge oforders issued by at least four different federal districtcourtandbankruptcy courtjudges, respectively, all recognizing my interests in the controversy, with three ofthe four indicating that the state courts are a proper forum for the dispute; namely, the Hon. U.S. District Judge David Hittner,the Hon. John C. Akard, the Hon. LiefM. Clark, andthe Hon. Harry LeeHudspeth. Judge Hittner did not reach the state court issues, but the others did. Careful examination of their opinions will establish that my activities in this Court are not the result ofa

24propensity to engage in frivolous litigation. I do admit that I made many unintended tactical errors in my attempts to prosecute a complex case, with complicated issues of first impression, as a novice pro se litigator with limited trial court experience and skills. Lastly, the apparent fraud on the court committed by Edward Bravenec and Glenn Deadman in Case No. 2014-CI-07644 has once again increased and distorted litigation in which I seek redress for my grievances, and to cause them to cease and desist from defalcating the proceedsof deed settlements in which I ha>ve a pararflpunt interest. Date: February 24, 2015 Rowland J. Martin

25

# BSearch Justia >U.S. Law >Case Law >California Case Law >Cal. 4th >Volume 28 >Wilson v. Parker, Covert & Chidester (2002) 

# Wilson v. Parker, Covert & Chidester (2002)

Annotate this Case [No. S097444. Aug. 1,2002.] RAUL WILSON et al., Plaintiffs and Appellants, v. PARKER, COVERT & CHIDESTER et al., Defendants and Respondents. RAUL WILSON et al., Plaintiffs and Appellants, v. MARK WILLIAMS, Defendant and Respondent. RAUL WILSON et al., Plaintiffs and Appellants, v. CARL AXUP et al., Defendants and Respondents. 

### (Superior Court ofRiverside County, No. 326517, Joan F. Ettinger, Temporary Judge, fn. *) (The Court of Appeal, Fourth Dist, Div. Two, Nos. E025710, E025832, and E026853, 87 Cal.App.4th 1337.) (Opinion by Werdegar, J., with George, C. J., Kennard, Baxter, Chin, and Moreno, JJ., concurring. Concurring opinion by Brown, J. (see p. 826).)
COUNSEL Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiffs and Appellants. Armen L. George, in pro. per., and for Alan D. Barbour and Miyoko O. Barbour as Amici Curiae on behalf of Plaintiffs and Appellants. Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Mark L. Keifer, Laine E. Hedwall and 

### Matthew E. Voss for Defendants and Respondents Parker, Covert &Chidester, Spencer E. Covert and Mark Williams. Reich, Adell, Crost & Cvitan, Paul Crost and Carlos R. Perez for Defendants and Respondents Reich, Adell, Crost & Cvitan and Marianne Reinhold. Stream &Stream, David D. Werner and Jamie E. Wrage for Defendants and Respondents Carl Axup and K. T. Bowers. Rutan & Tucker and David C. Larsen for California School Boards Association 

### Education LegalAlliance as Amicus Curiae on behalf of Defendants and Respondents

### Parker, Covert &Chidester, Spencer E. Covert, Mark Williams, CarlAxup and K. T. Bowers. Hinshaw & Culbertson, Ronald E. Mallen and Paul E. Vallone as Amici Curiae on behalf of Defendants and Respondents. 

### Sidley Austin Brown &Wood and Mark E. Haddad for Amoco Corporation and Amoco Technology Company as Amici Curiae on behalf of Defendants and Respondents. 

### Best Best &Krieger, Jack B. Clarke, Jr., John F. Walsh, Angelica Y. Castillo and Megan K. Starr for David Kuzmich, Carole Castle and Ellen Schwartz as Amici Curiae on behalf of Defendants and Respondents. [28 Cal.4th 814]
OPINION WERDEGAR, J.- 

### One of the elements of an action for malicious prosecution is the absence of probable cause for bringing the prior action. (Sheldon [28 Cal.4th 815] Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874.) The question presented here is whether the trial court's denial, in the prior action, of a special motion to strike under California's anti

### SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc, § 425.16) establishes that probable cause did exist forbringing the action, precluding maintenance of the malicious prosecution suit absent proofthe ruling was obtained by fraud. We conclude that denial of the motion to strike does establish the existence of probable cause where, as in this case, the trial court's denial ruling was predicated on a 

### finding that the action had potential merit. We therefore affirm the judgment of the Court of Appeal, which affirmed the trial court's sustaining ofdemurrers to this malicious prosecution action. FACTUAL AND PROCEDURAL BACKGROUND The underlying action, Kuzmich v. Mexican Political Assn. (Super. Ct. Riverside County, 1998, No. 283066) (Kuzmich), arose from demonstrations and personal confrontations occurring in and around a public school. The plaintiffs were teachers and administrators at the school who alleged that the demonstrators' actions and speech amounted to harassment and defamation; the defendants were allegedly participants in, or organizers of, the protests and accompanying confrontations. Several of the Kuzmich defendants, including the Mexican PoliticalAssociation (MPA), which organized the demonstrations, and Raul Wilson, an officer of the MPA, moved to strike the action under the anti-SLAPP statute (Code Civ. Proc, § 425.16 (hereafter section 425.16)). The trial court denied the motion on three grounds: the motion was untimely; the defendants had not established that the action arose from acts "in 

### furtherance of [their] right ofpetition or free speech" (§ 425.16, subds. (b)(1), (e)); and the plaintiffs had demonstrated a probability they could prevail on the merits (id., subd. 

### (b)(3)) byestablishing, in the trial court's words, "a sufficient prima facie showing of factstosustainajavorabj^^^ fn. 1[1] Applying that policy perspective to the delineation of the probable cause element, 

### this court held, first, that the existence or nonexistence of probable cause is a legal question to be resolved by the court in the malicious prosecution case; litigants are thus protected against the danger that a lay jury would mistake a merely unsuccessful claim 

### for a legally untenable one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-877.) We further held that probable cause is determined objectively, i.e., without reference to whether the attorney bringing the prior action believed the case was tenable (id. at pp. 877-882), and that the standard of probable cause to bring a civil suit was equivalent to that for determining the frivolousness of an appeal (In re Marriage ofFlaherty (1982) 31 

### Cal.3d 637), i.e., probable cause exists if "any reasonable attorney would have thought the claim tenable." (Sheldon Appel, supra, at p. 886.) This rather lenient standard for 

### bringing a civil action reflects "the important public policy ofavoiding the chilling ofnovel or debatable legal claims." (Id. at p. 885.) Attorneys and litigants, we observed," 'have a 

### right to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . .'" (Ibid., quoting In re Marriage ofFlaherty, supra, at p. 650.) Only those actions that" 'any reasonable attorneywould agree [are] totally and completely without merit'" may form the basis for a malicious prosecution suit. (Ibid.) [2] Long before Sheldon Appel was decided, decisions in California and elsewhere 

### established that a trial court judgment or verdict in favor of the plaintiff or prosecutor in 

### the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned 

### on appeal or by later ruling of the trial court, fn. 2 Although this rule predates Sheldon 

### Appel, it is motivated by much the same policy concern. Because malicious prosecution [28 Cal.4th 818] suits have the potential to penalize and deter the legitimate invocation 

### ofthejudicial process for redress ofgrievances, only claims that a reasonable litigant or attorney would have seen as lacking all merit should form the basis for such a suit. Claims that have succeeded at a hearing on the merits, even ifthat result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit 

### that a reasonable attorney or litigant would necessarily have recognized their frivolousness. Thus, in Fairchild v. Adams, supra, 170 Cal.App.2d 10, the superior court jury in the underlying case, a will contest, found the will to have been made under undue influence; the Court of Appeal affirmed, but this court reversed, holding the evidence insufficient to show that undue pressure had been brought to bear on the testamentary act itself. (Id. at pp. 11-12.) In the devisee's ensuing malicious prosecution action against the objector, the appellate court held the jury's verdict in the underlying case established probable cause for the contest despite its reversal on appeal. The jurors had "considered the evidence produced at the will contest alone sufficient, not only to justify the commencement of the proceeding, but also to support the judgment that the will and codicil were results of such undue influence. They were declared by the Supreme Court to be in error-but not unreasonable-in their opinions. [H].

. . fl[] The favorable outcome of the proceedings in the court below is conclusive evidence, in the absence of fraud, of 

### the existence of probable cause . . . notwithstanding reversal by the Supreme Court." (Iid. at pi.15s italies added.)

### The Kuzmich defendants sought review ofthis ruling by petition'tolh^CouHofAppeal for a writ of mandate. The Court ofAppeal granted the petition in part, vacating the superior court's order denying the motion to [28 Cal.4th 816] strike as to Wilson and the 

### MPA. The reviewing courtheld that the organized protests came within the protective scope ofsection425.16, though some ofthe personal insults and slurs alleged to have been made did not. Finding insufficient evidence of a conspiracy to harass or defame, 

### and therefore examining each defendant's conductindividually, the Court ofAppeal held that "[a]s forWilson, there is no evidence that he personally committed tortious conduct and he is entitled to a dismissal." The MPA, the court further held, "cannot be held liable 

### for the actions ofcertain ofits members, and it has no liability in tort for sponsoring a protest on an issue ofpublic significance." (Martinez v. SuperiorCourt (Aug. 29,1997, E020044) [nonpub. opn.].) On remand, the superior court granted the motion to strike and dismissed the action as to Wilson and the MPA. 

### Wilson and the MPA then brought this suit for malicious prosecution and other causes 

### of action against the Kuzmich plaintiffs and their attorneys. The superior court sustained demurrers to the complaint by the attorney defendants and by teachers CarlAxup and K. T. Bowers, and dismissed the action as to them. The Court of Appeal affirmed. Observing that "the denial of a SLAPP suit motion to 

### strike parallels the denial of a motion for summary judgment," the court followed Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375 (Roberts), which held that denial of a defense summary judgment motion normally establishes probable cause. As did the Roberts court (id. at p. 384), the Court of Appeal reasoned that the foundation for the 

### contrary view, enunciated in Lucchesi v. Giannini &Uniack (1984) 158 Cal.App.3d 777 

### (Lucchesi), had been undermined bythis court's intervening decision in Sheldon Appel Co. v. Albert &Oliker, supra, 47 Cal.3d 863 (Sheldon Appel), adopting an objective standard of probable cause for malicious prosecution actions. One justice dissented from this holding, arguing that, because survival of a section 425.16 motion to strike 

### requires only a prima facie case, denial of such a motion does not establish probable cause. The dissenter maintained that Roberts conflicted with this court's approving citation of Lucchesi in Crowley v. Katleman (1994) 8 Cal.4th 666, 692-693, footnote 15. We granted plaintiffs' petition for review.
DISCUSSION 

### We addressed the probable cause element ofmalicious prosecution comprehensively in Sheldon Appel, supra, 47 Cal.3d 863. We firstconsidered the policyreasons for adhering to limitations on the malicious prosecution tort, [28 Cal.4th 817] reiterating that the tort is disfavored both because of its "potential to impose an undue 'chilling effect' on the ordinary citizen's willingness to report criminal conduct or to bring a civil dispute to court" (id. at p. 872) and because, as a means of deterring excessive and frivolous 

### lawsuits, it has the disadvantage ofconstituting a new round oflitigation itself (id. at p. 

### 873). Apreferable approach is "the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delayjn£Lcondj^

### Similarly, in Cowles v. Carter, supra, 115 Cal.App.3d 350, in the underlying case, a civil action for child stealing and kidnapping, the jury returned a verdict for the plaintiffs, but 

### the trial court granted judgmentfor the defense notwithstanding the verdict. (Id. at pp. 

### 353-354.) In the defendant's ensuing malicious prosecution action, the appellate court held the jury'sfavorable verdict for the plaintiffs in the underlying case established 

### probable cause for the action despite its vacation bythe trial court. Quoting from a Georgia decision, the court explained," 'it would be hard law which would render a plaintiff liable in damages for instituting an action, wherein he made a truthful and 

### honest statement ofthe facts, in the event that, notwithstanding a judge ofthe superior courtwas satisfied that upon those facts the plaintiff had a meritorious case, a ruling to 

### that effect should afterwards be set aside [T]he inquiry [is] notwhether the plaintiff had in fact a good and valid cause ofaction, butwhetherthis was apparently true, and it was accordingly the right ofthe plaintiffto invoke a judicial decision concerning the merits ofthe case presented for determination ....*" (Id. at p. 357, quoting Short v. 

### Spragins (1898) 104 Ga. 628 [30 S.E. 810]; italics added.) [28 Cal.4th 819] The Court ofAppeal in Roberts, supra, 76 Cal.App.4th 375, relied upon much the same reasoning to hold that denial of a defense motion for summaryjudgment in the prior case established probable cause. In the underlying case in Roberts, an insurer's action against a physician for fraud and other causes of action, the trial court denied a defense 

### motion for summary judgment on the fraud claim, finding material questions offact. At 

### trial, however, the fraud claim was resolved in the defendant's favor. (Id. at pp. 380- 381.) In the physician's subsequent malicious prosecution action, the appellate court held the prior summaryjudgment denial was "a reliable indicator that probable cause [was] present." (Id. at p. 383.) Just as a trial victory bythe underlying plaintiff "shows that the suit was not among the least meritorious of meritless suits, those which are totally meritless and thus lack probable cause," so too "[d]enial of a defendant's summaryjudgment motion provides similarly persuasive evidence that a suit does not totally lack merit." (Ibid.) A trial court's conclusion that issues of material fact remain for trial "necessarily impl[ies] that the judge finds at least some merit in the claim. The 

### claimant maywin, if certain material facts are decided favorably. This finding (unless disregarded) compels [the] conclusion that there is probable cause, because probable cause is lacking only in the total absence of merit." (Ibid.) Giving effect to this conclusion 

### "serves the policy expressed in Sheldon Appel to discourage dubious malicious prosecution suits." (Id. at p. 384.) fn. 3 Several recent cases from otherjurisdictions have reached the same conclusion as to denial of defense summary judgment motions, directed verdict motions, and similar 

### efforts at pretrial termination ofthe underlying case. In Davis v. Butler (Ga.Ct.App. 1999) 522 S.E.2d 548, for example, an action for abusive civil litigation (which required 

### proofthat the prior litigation was groundless, frivolous or vexatious) was held precluded 

### where a defense motion for summaryjudgment had been denied in the underlying suit: "[S]uch denial of summary judgment constitutes a legal determination that the action 

### has substantial justification, because it is notgroundless orfrivolous and can proceed to jury trial. Thus, it was notgroundless, frivolous, orvexatious in fact or law." (Id. at p. 550.) Again, in Porous Media Corp. v. Pall Corp. (8th Cir. 1999) 186 F.3d 1077, the 

### court, applying Minnesota law, held denial ofa directed verdict for [28 Cal.4th 820] the

### defense established probable cause for the underlying suit: "If reasonable jurors could find in Pall's favor, itfollows that there was probable cause for bringing the counterclaims

.... This is fatal to an essential element of Porous's claims for malicious prosecution." (Id. at p. 1080.) fn. 4 

### The same result has been held to follow under the federal Noerr-Pennington doctrine, fn. 5 which immunizes plaintiffs from counterclaims for, e.g., violation of antitrust law, 

### based merely on having initiated nonsham business litigation. Sham litigation, for this purpose, is the "pursuit of claims so baseless that no reasonable litigant could realistically expect to secure favorable relief." (Professional Real Estate Investors, Inc. 

### v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 62.) Afinding of probable cause to bring the action therefore precludes a finding the action was a sham. (Id. at pp. 

### 62-63.) Significantly for our purposes, the denial of summary judgment in the underlying action has been held to demonstrate the action was not a sham. (Harris Custom Builders, Inc. v. Hoffmeyer (N.D.III. 1993) 834 F.Supp. 256, 261-262.) "An action that is 

### well enough grounded, factually and legally, to survive a motion for summary judgment is sufficiently meritorious to lead a reasonable litigant to conclude that they had some chance ofsuccess on the merits. Consequently, plaintiffs' infringement action is not a 

### sham and, under Noerr-Pennington, cannot subject Harris to antitrust liability." (Ibid., italics added; accord, Porous Media Corp. v. Pall Corp., supra, 186 F.3d at p. 1080, fn. 4; Gen-Probe, Inc. v. Amoco Corp., Inc. (S.D.Cal. 1996) 926 F.Supp. 948, 958.) [3a] The same considerations lead us to conclude that a trial court's denial of a motion to strike under section 425.16, on the ground that the plaintiff has established the requisite probability of success, establishes probable cause to bring the action, and precludes the maintenance of a subsequent malicious prosecution action, unless the priorruling is shown to have been obtained by fraud or perjury. The rights of litigants and attorneys to bring nonfrivolous civil actions," 'even if it is extremely unlikely that they will win'" (Sheldon Appel, supra, 47 Cal.3d at p. 885), would be unduly burdened were they exposed to tort liability for malicious prosecution for actions that had been found potentially meritorious under section 425.16. [28 Cal.4th 821] In order to establish a probability of prevailing on the claim (§425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must" 'state[] and substantiate!] a legally sufficient claim.'" (Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) 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 ifthe evidence submitted by the plaintiff is credited." (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274.) In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiffand the 

### defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, itshould grant the motion if, as 

### a matter oflaw, the defendant's evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356,1365.)In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legallytenable claim through a facially sufficient evidentiary 

### showing and that the defendant's contrary showing, if any, does not defeat the plaintiffs as a matter of law. This determination establishes probable cause to bring the claim, for such an action clearly is not one that" 'any reasonable attorney would agree ... is 

### totally and completely without merit.'" (Sheldon Appel, supra, 47 Cal.3d at p. 885.) A claim that is legallysufficient and can be substantiated by competent evidence is, on the contrary, one that a "reasonable attorney would have thought.. . tenable." (Id. at p. 886.) The opposite rule, permitting such claims to form the basis for malicious prosecution liability, would unduly limit the rightto invoke judicial remedies in pursuit of nonfrivolous claims. (Cf. Professional Real Estate Investors, Inc. v. Columbia Pictures 

### Industries, Inc., supra, 508 U.S. at p. 56 [imposition of antitrust liability for the initiation ofnonsham litigation would tend to infringe FirstAmendment right ofpetition].) We are not persuaded by plaintiffs' argument, echoing the dissenter in the Court of Appeal, that the denial of a section 425.16 motion does not demonstrate probable cause because the trial court, in deciding such a motion, determines only whether the plaintiff has substantiated a prima facie case and does not weigh one side's evidence 

### against the other in the manner [28 Cal.4th 822] of a jury or court trying the merits. [4] A 

### litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for reliefdoes not act tortiously by bringing the claim, even ifalso 

### aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will 

### ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious. (Sheldon Appel, supra, 47 Cal.3d at p. 885.) fn. 6 That the trial court does not, pursuant to section 425.16, weigh the evidence or decide disputed questions of fact does not, therefore, undermine the conclusion that a claim found to have a probability ofsuccess under that statute was brought with probable cause. [3b] Nor, in this case, did the Kuzmich Court ofAppeal's partial vacation ofthe trial court's section 425.16 order vitiate its effect. The appellate court in Kuzmich held the superior court legally erred in finding potential merit to the claims against two of the Kuzmich defendants, but not that the lower court decided the case irrationally. (See Fairchild v. Adams, supra, 170 Cal.App.2d at p. 15 [Supreme Court held jurors "to be in error-but not unreasonable-in their opinions"].) fn. 7 That the Kuzmich plaintiffs prevailed in the trial court shows their action was not so clearly and completely without merit as to justify tort liability for its initiation; though the Court ofAppeal held the evidence ofWilson's and the MPA's liability insufficient to proceed, it did not hold or imply that a reasonable attorney could not have believed the case had potential merit. It 

### would be a " 'hard law,'" indeed, that" 'would render a plaintiff liable in damages for 

### instituting an action

... in the event that, notwithstanding a judge ofthe superior court was satisfied that upon those facts the plaintiff had a meritorious case, a ruling to that 

### effect should afterwards be set aside.'" (Cowles v. Carter, supra, 115 Cal.App.3d at p J357JTo support their contention that denial of a section 425116 motjori ^^^I not becieemed |to establish probable cause, plaintiffs rely heavily on Lucchesi, supra, 158 Cal.App.3d ;777, and on this court's favorable citation of [28 Cal.4th 823] Lucchesi in Crowley v. ]Katleman, supra, 8 Cal.4th 666 (Crowley), both of which we now examine, fn. 8 In the underlying action in Lucchesi, an action to cancel a deed and to quiet title, the court denied a defense motion for summaryjudgment; the Lucchesi opinion does not state, however, whether the motion was denied because of the existence of triable issues of material fact (Code Civ. Proc, § 437c, subd. (c)) or for other reasons. (Lucchesi, supra, 158 Cal.App.3d at p. 784.) The defendant ultimately prevailed at trial. (Ibid.) 

### In the defendant's ensuing malicious prosecution action, the appellate court rejected the former plaintiffs' contention that denial of the summary judgment motion in the underlying case established probable cause for bringing the action, in part because a summary judgment motion may be denied for reasons other than existence of triable 

### issues: "A motion for summary judgment may be denied for any of several reasons: (1) there may be a triable issue as to a material fact; (2) the supporting affidavits may be insufficient; (3) the only proofas to a material fact may be an affidavit or declaration by the sole witness to the fact; or (4) a material fact may involve an individual's state of mind and that fact is sought to be established solely by that individual's affirmation 

### thereof. [Citations.]" (Lucchesi, supra, 158 Cal.App.3d at p. 787; see Code Civ. Proc, § 437c, subds. (b) [motion may be denied if supporting papers do not include a separate statement of undisputed facts], (e) [motion may be denied ifthe only proof of one or more material facts is the declaration of the sole witness to the fact, or a material fact as to a person's state of mind is sought to be established solely by the person's testimony].) 

### The Lucchesi court's reasoning to this point is indisputably correct. Denial of a summary judgment motion on procedural or technical grounds, rather than for existence of triable issues of material fact, says nothing regarding the potential merit of the action and hence does not establish probable cause for its initiation. A parallel distinction can be made with regard to motions to strike under section 425.16: denial ofthe motion solely on technical or procedural grounds, for reasons that cannot be determined, or because the cause of action does not "aris[e] from any act of [the defendant] in furtherance ofthe [defendant's] right of petition or free speech" (§ 425.16, subd. [28 Cal.4th 824] (b)(1)), rather than because the plaintiff has shown a probability of success, would say nothing about the action's potential merit and would not establish probable cause. Lucchesi continues, however, with the statement that "[e]ven when the denial is based on the first ground that a material issue of fact does exist, this procedure still falls short of a hearing on the merits." (Lucchesi, supra, 158 Cal.App.3d at p. 787.) The decision goes on to hold, as well, that denial of a nonsuit motion does not establish probable 

### cause because a nonsuit must be denied "ifthere is any substantial evidence tending to prove all the controverted facts necessary to establish the plaintiffs case," a conclusion 

### that, like denial of summaryjudgment, is "not a d^erjmination_on thejrjerits^bidj

### This latterpart ofLucchesi's reasoning has been undermined bythis court's subsequent decision in Sheldon Appel. As discussed above, our decision in that case clarified that 

### probable cause to bring an action does not depend upon it being meritorious, as such, 

### but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorneywould have thoughtthe claim tenable. (Sheldon Appeal, supra, 

### 47 Cal.3d at pp. 885-886.) Denial ofa defense summaryjudgment motion on grounds that a triable issue exists, or of a nonsuit, while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements 

### of his or her cause ofaction with evidencethat, if believed, would justify a favorable verdict. As also discussed above, a claimant or attorney who is in possession of such evidence has the right to bring the claim, even where it is very doubtful the claimwill 

### ultimately prevail. (Id. at p. 885.) Lucchesi, supra, 158 Cal.App.3d 777, is disapproved to the extent it holds otherwise. 

### Ourfavorable citation ofLucchesi in Crowley did not amount to approval ofall of Lucchesi's reasoning. The issue raised on review in Crowley was whether we should 

### retain an existing rule that "a suitfor malicious prosecution liesfor bringing an action 

### charging multiple grounds ofliability when some but notall ofthose grounds were asserted with malice and without probable cause." (Crowley, supra, 8 Cal.4th at p. 671.) 

### In passing, we briefly addressed the defendants' unrelated argument, which they had raised but abandoned during the trial court proceedings, that denial of a defense summary adjudication motion in the underlying case established probable cause. We 

### remarked merely that the point "was without merit for the reasons stated in [Lucchesi]." (Id. at p. 675, fn. 5.) Later in the opinion we again cited Lucchesi, this time for the 

### proposition that denial of the summary adjudication motion was not a judgment on the 

### merits for the purposes of the rule [28 Cal.4th 825] "that an interim adverse judgment on the merits, even though subsequently set aside on motion or on appeal, conclusively establishes probable cause for the prior action." (Crowley, supra, at pp. 692-693, fn. 15.) We did not, in Crowley, indicate whether we approved the result in Lucchesi because, 

### as the Lucchesi court had explained, summary judgment may be denied on any of a number of procedural or technical grounds, or whether we agreed with Lucchesi that even a determination ofthe existence of triable issues would not establish probable cause. Our favorable but passing mention of Lucchesi, therefore, did not constitute a full endorsement of its reasoning, which we have here disapproved in part for the reasons already given. 

### Plaintiffs also contend that the determination of probable cause from a finding or ruling in the underlying case is actually an aspect of collateral estoppel, and hence no such 

### determination may be made in circumstances where no collateral estoppel would arise, as where the prior decision was neither final nor on the merits; application of collateral 

### estoppel in these circumstances, plaintiffs argue, violates their due process andjury trial 

### rights. In ourview, plaintiffs' invocation ofcollateral estoppel is a red herring. [5] The determination ofprobable cause does not operate, like collateral estoppel, to preclude 

### relitigation ofan issue offact. Probable cause, for purposes ofa malicious prosecution action, is a legal issue, not a factual one. (Sheldon Appel, supra, 47 Cal.3d at pp. 874-

### 877.) The determination arises, moreover, notbecause the same issue was litigated in the prior case, but because the resultin the prior case (whether a verdict or judgmentin the plaintiffs favor, or denial of a defense summary judgment or SLAPP motion) establishes the existence of probable cause as a matter oflaw, absent proof of fraud or perjury. The rule derives from the definition of probable cause-which is framed so as 

### not to infringe on the right to bring nonfrivolous litigation-rather than from the doctrine of res judicata or any of its branches. Lastly, plaintiffs contend that application of the probable cause determination inthese circumstances contravenes the terms, and defeats the intent, ofthe anti-SLAPP statute. 

### On the first point, plaintiffs cite section 425.16, subdivision (b)(3), which provides that a trial court's determination ofa probability that a claim will prevail, in denying a motion to strike, is inadmissible "at any laterstage ofthe case, and no burden ofproof or degree ofproof otherwise applicable shall be affected bythat determination." This provision, 

### however, clearly addresses the effects ofthe motion's denial in further proceedings in the same case, notin derivative litigation commenced subsequently. [28 Cal.4th 826] As to legislative intent, plaintiffs suggest that a rule equating denial of the section 

### 425.16 motion to strike with probable cause will deter SLAPP defendants from taking advantage of section 425.16, for fear that denial will bar any malicious prosecution 

### action, thus defeating the legislative intent that the anti-SLAPP procedures be employed to quickly end abusive litigation against public participation and speech. We are not persuaded the statutory scheme will be undermined in this manner. Given the low standard of probable cause under Sheldon Appel, supra, 47 Cal.3d 863, and our 

### holding there that probable cause is decided bythe court, defendants can hardly be 

### confident in their ability to maintain a malicious prosecution action even if theyforgo the motion to strike and defeat a SLAPP suit at trial. The anti-SLAPP statute, on the other 

### hand, provides for an award of attorney fees and costs to the defendant who makes, and prevails on, a motion to strike. (§ 425.16, subd. (c).) These considerations should 

### provide adequate incentive for a defendant who desires the speedy and low-cost 

### termination of abusive litigation against him or her, and who is confidentthe litigation is truly meritless, to employthe statutory procedures even at some risk oflosing the opportunity for a subsequent malicious prosecution suit. [3c] For the above reasons, we conclude the Kuzmich court's denial of the defendants' motion to strike under section 425.16 established probable cause to bring the Kuzmich action. Plaintiffs in the present malicious prosecution action have not attempted to show that that ruling was obtained by fraud or perjured testimony. Probable cause therefore 

### existed as a matter of lawfor initiation of Kuzmich, negating a necessary element of the malicious prosecution action. As the Court of Appeal also concluded, the demurrers to that cause of action were therefore properly sustained.
DISPOSITION The judgment of the Court of Appeal is affirmed. ^.9[9^C-^ Moreno, J., concurred.

### BROWN, X, Concurring: Although Iconcur with most of the majority's reasoning, Iwrite separately because Ifind 

### its distinction ofCrowley v. Katleman (1994) 8 Cal.4th 666 (Crowley) unpersuasive. (See maj. opn., ante, at pp. 824-825.) According to the majority, "[w]e did not, in Crowley, indicate whether we approved the result in Lucchesi [v. Giannini &Uniack 

### (1984) 158 Cal.App.3d 777] because . . . summaryjudgment may be denied on any of a number ofprocedural or technical grounds, or whether we agreed with Lucchesi that even a determination ofthe existence oftriable issues would not establish probable 

### cause." [28 Cal.4th 827] (Maj. opn., ante, at p. 825.) Based on this ambiguity in Crowley, the majority concludes that "[o]ur favorable but passing mention ofLucchesi.

.



### . did notconstitute a full endorsement ofits reasoning

. . . ." (Ibid..) After reviewing Crowley, I disagree. 

### In Crowley, Carole Katleman, represented by counsel (together, the defendants), filed a 

### will contest, alleging six separate grounds for invalidating the will. (Crowley, supra, 8 Cal.4th at p. 673.) Arthur J. Crowley, the principal beneficiary of the will, filed a motion for summary adjudication. (Ibid.) The probate court granted the motion as to one of the grounds, but "denied the motion as to the remaining grounds, ruling there were triable 

### issues ofmaterial fact as to each." (Ibid., italics added.) After prevailing in the will contest, Crowley sued the defendants for malicious prosecution. (Id. at p. 674.) In their 

### demurrer to the malicious prosecution action, the defendants contended, "by denying Crowley's motion for summary adjudication of issues as to all grounds ofthe will contest except lack of due execution, the probate court 'necessarily determined' there was 

### probable cause for the remaining grounds . . . ." (Id. at p. 675.) We, however, rejected this contention in a footnote, finding it "was without merit for the reasons stated in 

### Lucchesi ..." (Crowley, supra, 8 Cal.4th at p. 675, fn. 5.) 

### Because the probate court denied the motion for summary adjudication in the will 

### contest on the merits, ourfootnote in Crowley necessarily endorsed Lucchesi's holding that "a determination ofthe existence oftriable issues would not establish probable cause." (Maj. opn., ante, at p. 825.) Like the majority, Idisagree with this holding. (See id. at pp. 824-825.) Iwould therefore disapprove ofCrowley to the extent itadopted this holding of Lucchesi. FN *. Pursuant to California Constitution, article VI, section 21. 

### FN 1. In a separate ruling, the Kuzmich trial court also issued a permanent injunction against harassment. The Kuzmich Court of Appeal reversed the grant ofinjunctive relief on procedural grounds. In the present case, the Court ofAppeal held that the Kuzmich trial court's grant of injunctive reliefestablished probable cause for that cause of action, but neither plaintiffs' petition for review nor any ofdefendants' answers raises for our review the correctness of that holding. We therefore do not address the effect of the order for injunctive relief. 

### FN 2. Bealmear v. So. Cal. Edison Co. (1943) 22 Cal.2d 337, 340; Carpenter v. Sibley (1908) 153 Cal. 215, 218; Holliday v. Holliday (1898) 123 Cal. 26, 32; Cowles v. Carter(1981) 115 Cal.App.3d 350, 356, 359; Fairchild v. Adams (1959) 170 Cal.App.2d 10, 15; see also Crescent Live Stock Co. v. Butchers' Union (1887) 120 U.S. 141, 149-151; Restatement Second of Torts, section 675, comment b, page 458; Prosser and Keeton, The Law of Torts (5th ed. 1984) section 120, page 894. 

### FN 3. Roberts is the only published California decision holding denial of a defense summary judgment motion demonstrates the existence of probable cause. That holding, however, was prefigured in Hufstedler, Kaus &Ettinger v. Superior Court (1996) 42 

### Cal.App.4th 55, 69, where the appellate court observed that denial of summary judgment in the underlying libel case, while not dispositive, supported the conclusion 

### that probable cause existed for that action, since "ifthe statements [sued upon in the libel case] were so clearly expressions ofopinion that any reasonable attorney would have so viewed them, [the underlying defendant's] motion for summary judgment would have been granted." 

### FN 4. Accord, Butlerv. Ratner (App.Div. 1994) 619 N.Y.S.2d 871, 874 (issuance of temporary restraining order creates presumption of probable cause); Skinder-Strauss v. Mass. Continuing Legal Educ. (D.Mass. 1994) 870 F.Supp. 8, 11 (claim that survives 

### summary judgment does not lack objective merit); contra, Kirk v. Marcum (Ky.Ct.App. 1986) 713 S.W.2d 481, 485 (denial of directed verdict for defense does not establish probable cause). 

### FN 5. So called after Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127 and Mine Workers v. Pennington (1965) 381 U.S. 657. 

### FN 6. Indeed, a plaintiff or his or her attorney may not be aware, when initiating the action, ofevidence in the defendant's possession that weighs against the claim. Considering the plaintiffs prima facie case alone is appropriate for this reason as well, for probable cause to bring an action depends on the facts known to the litigant or attorney at the time the action is brought. (Sheldon Appel, supra, 47 Cal.3d at pp. 880- 884.) FN 7. See also Butler v. Ratner, supra, 619 N.Y.S.2d at pages 873-874 (issuance of temporary restraining order, though vacated by appellate court, creates presumption of probable cause); Chapman v. Grimm & Grimm, P.C. (Ind.Ct.App. 1994) 638 N.E.2d 462, 464-465 (contempt citation against defendant in child visitation action, though reversed by appellate court for lack of jurisdiction, conclusively establishes probable cause to bring action). FN 8. The dissenting justice below, in addition to relying on Lucchesi and Crowley, cited decisions refusing effect to preliminary rulings in criminal cases. (See, e.g., Diemer v. Herber (1888) 75 Cal. 287, 290 [magistrate's holdover order]; De La Riva v. Owl Drug 

### Co. (1967) 253 Cal.App.2d 593, 595-597 [denial ofmotion to set aside information].) These decisions are inapposite, however, because our decision here rests on the relatively low standard of probable cause required to bring a civil action. (Sheldon 

### Appel, supra, 47 Cal.3dat pJB85.)

# C

26Filed 4/16/13 LaChapelle v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules ofCourt, rule 8.1115(a), prohibitscourts and parties from citing or relyingon 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 publishedfor purposes ofrule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT

DIVISION TWO

FRANK LACHAPELLE, Petitioner,

THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; HANSEN MCCOY INVESTMENTS, LLC, et al.,

Real Parties in Interest. E058014 (Super.Ct.No. INC1101291)

OPINION

APPEAL from the Superior Court ofRiverside County. Jeffrey L. Gunther, Judge. (Retired judge ofthe Sacramento Sup. Ct. assigned by the ChiefJustice pursuant to art. VI, § 6 ofthe Cal. Const.) Petition granted. John C. Torjesen & Associates and John C. Torjesen for Petitioner. No appearance for Respondent.

Theresa A. Jones for Real Parties in Interest.

1

### In this matter we have reviewedthe petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that 

### resolution of thematter involves the application ofsettled principles oflaw, and that 

### issuance of aperemptory writ in thefirst instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) 

### In the underlying action, petitioner alleges that the security instrument that was 

### executed and recorded when he refinanced his home is voidbecause it wasprocured by fraud andforgery. Thus, he asserts the realparties in interest, who werepurchasers at a 

### non-judicial foreclosure sale andtheir successors ininterest, didnotacquire valid title. He asks in an amended pleading forcancellation oftheir deeds and forquiet title. Petitionerfiled a notice of lis pendens on February 25. 2011. 

### Real parties moved to expunge the lis pendens on the ground thatpetitioner cannot establish the probable validity ofhis claim. They contend that their trustee's deed relates 

### back to therecording of thetrust deed in2008 and petitioner canclaim nopresent interest in the property. They also contend that his claim offraud can form a basis for a claim for 

### money damages only—and not a claim for title or possession of the property. The trial court ordered the notice oflis pendens expunged. In its tentative ruling, the trial court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to 

### support its ruling: "The purchasers title (at a foreclosure sale)

... is not encumbered by 

### any interest that is created andrecorded after the deed oftrust, but prior to the date of the foreclosure sale, even ifthe foreclosure sale purchaser had actual or constructive notice ofthe intervening lien or interest." The court recited the facts that the notice ofdefault

### here showed that the trust deed foreclosed upon was last modified and recorded on 

### November 5, 2009; petitioner's first lispendens notice was notrecorded until February 

### 15, 2011, and that his second one naming moving parties was notrecorded until January 3, 2013. "Thus, the moving defendants' trustees' deed relates back to the date of 11/5/09 

### trust deed and is effective prior to any noticeof lis pendens. As a result, there is no basis for a lis pendens to remain against the property." 

### The parties presented no additional argument at thehearing andthetentative 

### ruling became the court'sruling. Petitioner seeks review ofthis ruling pursuant to Code 

### ofCivil Code section 405.39. We conclude that the court's stated reasons do notsupport the order for expungement. Justification for setting aside a foreclosure sale is that the deed oftrust is void. 

### {Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104-105; see Stockton v. Newman 

### (1957) 148 Cal.App.2d 558, 563-564 [trustor sought rescission ofpromissory note on grounds offraud].) There, Lona's home was sold at a nonjudicial foreclosure sale. Lona 

### sued thelender, theloan servicer, and others to setaside thetrustee's sale, claiming he

was a victim ofpredatory lending in thattheloan broker ignored his inability to repay the loan andLona, lacking fluency inEnglish, did notunderstand many of the details of the transaction. The courtreversed summaryjudgment for the lenders, concluding that Lona had raised a triable issue that the underlying loan was illegal and unconscionable, thus excusing him from the requirement he tender full payment ofthe debt to obtain relief. 

### Plaintiffs notice of lispendens is nota lien itself, butsimply gives notice that plaintiffwas challenging the validity of the trustinstrument. Here, at least in the FifthAmended Complaint, petitioner is claiming that the trust deed is void because offraud in 

### the inducement and forgery. Petitioner's position ismuch like Lona's—the security instrument was void and he filed suit challenging it. Thereafter, thenonjudicial foreclosure saletook place, whichhe now seeks to set aside. Indeed, in the same section cited by the trial court (3rd. ed., § 10.208), Miller and Starr also states that in certain



### cases the purchaser's title following a foreclosure sale is subject tobeing recovered by the trustor by anattack onthe validity ofthe instrument. Thus, it appears hehas stated grounds to set aside the sale based on the invalidity of the trust deed—he does claim an 

### interest inthereal property sothat the trial court erred inexpunging the notice oflis pendens 

### Realparties' argument thatfraud is simply a monetary claim is not welltaken, and



### we note thatpetitioner alleges thathe acted to rescind the original agreement based on this fraud and forgery. Real parties also argue that thejudgmentofforeclosure and the 

### eviction have conclusive effect, butinthe case relied on, Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, there was a claim that there were 

### irregularities in the foreclosure sale itself. Thejudgment offoreclosure was conclusive as 

### to thepurchaser's title. Here, as discussed above, petitioner is challenging the security instrument as void. Thus, the foreclosurejudgment is not conclusive that that instrument

was valid. 

### We offer no opinion whetherthe trial courtmay correctly base an order for 

### expungement onother factors showing petitioner cannot establish the probable validity of 

### his claim. We merely conclude that the trial court's ruling was based on anarrow ground

### regarding the priority ofthe purchaser's deed, which is not justified based on the face of 

### petitioner's pleadings. Thus, we concludethat the petition must be granted and the trial 

### court directed to reconsider the motion. The trial courtis in no wayprecluded on reconsideration from reaching the same result, i.e., finding thatpetitioner has not shown the probable validity ofhis claim under Code ofCivil Procedure section 405.32.

DISPOSITION 

### Let aperemptory writ ofmandate issue directing the Riverside Superior Court to set aside andvacate its ordergranting the motion to expunge lis pendens and to reconsider the matter in accordance with the views expressedherein. 

### Petitioner is directed to prepare and have the peremptory writ ofmandate issued, 

### copies served, and the original filed with the clerk ofthis court, together with proofof service on all parties.
Petitioner is to recover his costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

We concur:

RAMIREZ P.J.

KINGpropensity to engage in frivolous litigation. I do admit that I made many unintended tactical errors in my attempts to prosecute a complex case, with complicated issues of first impression, as a novice pro se litigator with limited trial court experience and skills. 5. Lastly, the apparent fraud on the court committed by Edward Bravenec and Glenn Deadman in CaseNo. 2014-CI-07644 has once againincreased and distorted litigation in which I seek redress for my grievances, and to cause them to cease and desist from defalcating the proceeds of deed settlements in which I have a paramountinterest. Date: February24, 2015 Rowland J. Martin

25

# c

26Filed 11/28/12

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT LA JOLLA GROUP II et al., Plaintiffs and Appellants,

v. DANIEL A. BRUCE et al., Defendants and Respondents. F061829 (Super. Ct. No. 10CECG02268)

OPINION

APPEAL from ajudgment ofthe Superior Court ofFresno County. Donald S. Black, Judge. Wilkins, Drolshagen & Czeshinski, James H. Wilkins and Quentin Cedar for Plaintiffs and Appellants. Betts, Rubin & McGuinness, James B. Betts and Joseph D. Rubin for Defendants and Respondents.When their family home in Fresno, California (the Property) was foreclosed on pursuant to a forged or fraudulent second deed oftrust, Rebecca and Victorino Baquiran filed an action to quiet title to the Property and recorded a lis pendens. Thereafter, the party that had purchased the Property in good faith at the foreclosure sale, La Jolla Group II and its partners, Leroy Kleim and Alan Boyajian (collectively appellants), filed

a complaint for slander oftitle against the Baquirans and the Baquirans' attorney, Daniel A. Bruce and the Law Office ofZinkin & Bruce (collectively respondents), alleging that the recording ofthe lis pendens was unprivileged and wrongfully prevented appellants from being able to sell the Property. Respondents then filed a special motion to strike the slander oftitle complaint under Code ofCivil Procedure section 425.16 (also 

### known as an "anti-SLAPP" motion).1 In ruling on the motion, the trial courtconcluded that (1) the recording ofthe lis pendens was a protected activity under section 425.16 and (2) appellants did not establish a probability ofprevailing on their slander oftitle complaint. The trial court reached the latter conclusion because the evidence offorgery reflected the second deed oftrust was void (not merely voidable) and because the absolute privilege ofCivil Code section 47, subdivision (b) (hereafter Civil Code section 47(b)) applied to the recording ofthe lis pendens. Accordingly, respondents' special motion to strike was granted. Appellants appeal from that order. We will affirm.
FACTS AND PROCEDURAL HISTORY On or about June 28, 1989, Victorino Baquiran purchased the Property. At that time, Mr. Baquiran executed a first deed oftrust to secure the loan used to purchase the Property. His wife, Rebecca Baquiran, was placed on title to the Property and the



### 1 Unless otherwise indicated, all further statutory references are to the Code ofCivil Procedure. The term "SLAPP" is "an acronym for 'strategic lawsuit against public participation.'" {Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)Baquirans made it their family home for more than 16 years, until they were evicted by appellants in June 2005. The Forged Second Deed ofTrust and Resulting Foreclosure In July 2003, the Baquirans received notice that foreclosure proceedings were being commenced based on a second deed oftrust on the Property securing a promissory note in favor ofSteven and Carrie Mahlum. Prior to receiving that notice, the Baquirans had no knowledge that a deed oftrust in favor ofthe Mahlums had been recorded on the Property. Indeed, the Baquirans had never borrowed money from, or even met, the Mahlums. The Mahlums likewise acknowledged that although they had received some payments from Zarrell Williams, which they thought related to the second deed oftrust, they had never received any payments from the Baquirans. It was later discovered that the second deed oftrust was procured through the fraud or forgery ofthe Baquirans' former mortgage broker, Williams. Williams had brokered a refinance ofthe Baquirans' first deed oftrust in April 1997, just prior to the date appearing on the second deed oftrust naming the Mahlums as beneficiaries. Although the Baquirans admitted their signatures on the second deed oftrust appeared to be authentic, they contended they were deceived because the document was materially altered and they never intended to sign a deed oftrust in favor ofthe Mahlums. It was the Baquirans' theory that during the refinance transaction in 1997, Williams, by means offraud and deceit, had them execute documents not related to or utilized in the refinance, which documents Williams later altered to fraudulently obtain a loan from the Mahlums in the Baquirans' name, and then Williams converted the proceeds ofthat loan for his own use. James A. Blanco, a handwriting and document expert retained by respondents, examined the second deed oftrust and concluded that it had been materially altered. At various places, information had been covered over with "whiteout" and replaced by other information. For example, under the beneficiary section ofthe

3.document, two names were covered over using a masking fluid and replaced with the

names of Steven and Carrie Mahlum. On February 24, 2004, before the forgery by Williams had been brought to light, the Property was foreclosed upon and sold at a nonjudicial foreclosure sale to La Jolla Group II and David and Linda Hovannisian. On March 17, 2004, appellants initiated eviction proceedings against the Baquirans. The Baquirans initially hired attorney Joseph C. Raineri, who was able to obtain a stay ofeviction until January 2005. However, the Baquirans eventually concluded that Mr. Raineri had abandoned them and

was not protecting their rights. Thereafter, in February 2005, the Baquirans retained Mr. Bruce to represent them in this matter. The Baquirans' Complaint to Quiet Title and Lis Pendens On May 25, 2005, the Baquirans, represented by Mr. Bruce, filed a complaint to quiet title against, among others, appellant La Jolla Group II. In that complaint, the Baquirans alleged the disputed second deed oftrust was "a forgery and/or a fraudulently obtained document that was created by Williams," and they sought (1) to cancel the purported foreclosure sale based upon the forged deed oftrust and (2) to restore possession and title ofthe Property to the Baquirans. On June 14, 2005, the Baquirans recorded a notice ofpending action (the lis pendens) concerning the Property. The pending action specified in the lis pendens was the Baquirans' complaint to quiet title. The lis pendens was signed by Mr. Bruce. On December 16, 2005, appellant La Jolla Group II filed a motion to expunge the lis pendens. On February 2, 2006, the motion proceeded to hearing. The Honorable Judge Alan M. Simpson considered the papers, evidence and arguments presented by the parties and declined to expunge the lis pendens. As part ofhis written order denying the motion, Judge Simpson found that the Baquirans "ha[d] shown the probable validity of their claim." The written order further explained: "The Rebecca Baquiran declaration,combined with the evidence ofalteration ofthe deed oftrust pursuant to which the property was sold, support [the Baquirans'] theory that the deed oftrust was a forgery." Criminal Conviction ofZarrell Williams Meanwhile, criminal charges were filed by the Fresno County District Attorney against Williams for multiple acts oftheft, forgery and similar crimes against several victims. As to Williams's conduct perpetrated against the Baquirans, the consolidated information specifically charged Williams with four distinct crimes: grand theft of money, forgery ofa deed oftrust, knowingly performing notarial act on a false or forged trust deed, and procuring or offering a false or forged instrument (deed oftrust) for filing

or recording. The consolidated information set forth the following facts in support of these particularcounts:2 (1) Williams was a loan broker who first workedwith Rebecca Baquiran in the early 1990's when she obtained a personal loan, and again in 1997 when he arranged a consolidation loan for the Baquirans through EquiCredit. In the same time period, Williams made a number ofhard money property loans on behalfofthe Mahlums. (2) When the Mahlums failed to receive certain payments on those property loans, Williams advised them that he had a loan, including a note and deed oftrust, on the Property. (3) Williams produced for the Mahlums a deed oftrust and assignment ofrents purportedly signed by the Baquirans that had been filed with the Fresno County Recorder's Office on June 4, 1998. That deed oftrust was subsequently found to have been altered by Williams. (4) The deed oftrust and assignment ofrents was forged by Williams with intent to defraud. (5) The forged deed oftrust was notarized by Williams with knowledge that it contained a false statement or was forged. On September 13, 2006, the jury found Williams guilty as charged on each ofthe counts relating to the Property, including forgery ofthe deed oftrust, knowingly


### 2 Thecounts arenumbered hereforconvenience; suchenumeration did notappear in the original.

### performing a notarial act on a false or forged trustdeed, andprocuring or offering a false or forged deed of trust for filing or recording. Williams was also convicted on all but one ofthe other crimes charged against him that involved other defrauded victims. He was sentenced to serve three years four months in prison. Withdrawal ofthe Lis Pendens On July 6, 2009, the Baquirans recorded a notice ofwithdrawal of lis pendens. 

### According to Mr. Bruce, the lis pendens was withdrawn as part of a negotiated settlement reached between the Baquirans, the Mahlums and All-Cal Foreclosure Services, Inc. The 

### Mahlums and All-Cal Foreclosure Services, Inc. were additional defendants in the quiet
title action. Appellants' Complaint for Slander ofTitle 

### On June 29, 2010, appellants filed theircomplaint for slander of title against respondents. The complaint for slanderof title allegedthat the recording of the lis 

### pendens was notprivileged andwrongfully prevented appellants from being able to sell 

### the Property from June 2005 to July 2009, resulting in damages to appellants. Allegedly, the Baquirans' admission that their signatures on the second deed oftrust were authentic established that there was no justifiable basis for alleging the second deed of trust was a 

### forgery or forseeking to invalidate the foreclosure sale. Thus, according to the complaint for slanderof title, the recording of the lis pendens was false, wrongful andunprivileged since it purportedly had no evidentiary basis. Respondents' Special Motion to Strike On August 6, 2010, respondents moved to strike appellants' slander oftitle complaint pursuant to section 425.16 (the "anti-SLAPP" statute) on the grounds that (1) recording the lis pendens was a protectedactivityunder the statute (see § 425.16, 

### subd. (e)) and (2) appellants couldnotestablish a probability ofprevailing on the slander of title claim (§ 425.16, subd. (b)(1)). In their opposition, appellants conceded that the filing of the lis pendens was a protected activity under the statute. Therefore, the focus ofthe motion was on the second step or prong ofthe analysis under section 425.16—that is, whether appellants could show a probability ofprevailing on the merits of their complaint
for slander oftitle. After considering the evidence and arguments presented by the parties, the trial court found that the disputed deed of trust was a forgery since it had been materially altered by Williams. Therefore, it was "void" and not merely voidable; and, as a consequence, it could not convey title—not even to a good faith purchaser at a foreclosure sale. The trial court furtherheld that under the circumstances, the litigation privilege of Civil Code section 47(b) was applicable to the recording of the lis pendens. For these reasons, the trial court concluded appellants did not have a probability of prevailing and, therefore, the special motion to strike was granted. Appellants' notice ofappeal followed.
DISCUSSION I. Standard of Review We review de novo the trial court's ruling on an anti-SLAPP motion. {Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) "Resolving the merits ofa section 425.16 motion involves a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning ofthe statute and, ifit does, proceeding secondly to whether the plaintiffcan establish a probability ofprevailing on the merits. [Citation.]" {Overstock.com, Inc. v. GradientAnalytics, Inc. (2007) 151 Cal.App.4th 688, 699 {Overstock.com).) In our de novo review, '"[w]e consider "the pleadings, and supporting and opposing affidavits ... upon which the liability or defense is based." (§ 425, subd. (b)(2).) However, we neither"weigh credibility [nor] compare the weight ofthe evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine ifit has defeatedthat submittedby plaintiff as a matter of law." [Citation.]' [Citation.]" {Flatley v. Mauro, supra, at p. 326.)

7.n. Overview ofthe Anti-SLAPP Statute "[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for the early dismissal ofunmeritorious claims filed to interfere with the valid exercise ofthe constitutional rights offreedom ofspeech and petition for the redress ofgrievances. [Citation.]" {Club Membersfor anHonestElection v. Sierra Club (2008) 45 Cal.4th 309, 315.) "The Legislature authorized the filing ofa special motion to strike such claims (§ 425.16, subds. (b)(1), (f)), and expressly provided that section 425.16 should 'be construed broadly.' [Citations.]" {Ibid.) The resolution ofan anti-SLAPP motion "requires the court to engage in a two-step process. First, the court decides whether the 

### defendant hasmade a threshold showing thatthe challenged cause ofaction is onearising from protected activity.... Ifthe court finds such a showing has been made, it then determines whetherthe plaintiff has demonstrated a probabilityof prevailingon the 

### claim." {Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 {Equilon Enterprises).) The present appeal concerns, in particular, the second step under the statutory analysis—namely, whetherappellants have demonstrated a probabilityofprevailing on 

### theirclaim forslander oftitle. (§ 425.16, subd. (b)(1).) In orderto establish aprobability ofprevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim. {Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) '"Put another way, the plaintiff"must demonstrate that the complaint is both legally sufficientand supported by a sufficientprima facie showingof facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.]'" {Ibid.) That is, the plaintiffmust """make a prima facie showing of facts which would, if provedat trial, supporta judgment in plaintiffs favor."" [Citation.]" {ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 

### 1010.) "In deciding the question ofpotential merit, the trial courtconsiders the pleadings and evidentiary submissions ofboth the plaintiffand the defendant (§ 425.16,

8.subd. (b)(2)); though the court does not weighthe credibility or comparative probative strength ofcompeting evidence, it should grant the motion if, as a matter oflaw, the defendant's evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim." {Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Accordingly, "the motion to strike should be granted if the defendant 'defeats the plaintiffs showing as a matter of law, such as by establishing a defense or the absence of a necessary element.' [Citation.]" {Carver v. Bonds (2005) 135 Cal.App.4th 328, 344.) III. Motion to Strike Under Section 425.16 Was Properly Granted Under the first step ofthe analysis under section 425.16, respondents must make a threshold showingthat the challenged cause of action arose from protected activitywithin the meaning of the statute. (§ 425.16, subd. (b)(1); Equilon Enterprises, supra, 29 

### Cal.4th at p. 67; Overstock.com, supra, 151 Cal.App.4th at p. 699.) Here, the complaint for slander of title was premised on a single activity: the recording of the lis pendens. Unquestionably, the recording ofthe lis pendens constituted a written statement made in connection with issues under consideration in a judicial proceeding—that is, the 

### underlying quiet title action. (§ 425.16, subd. (e).)3 Therefore, as conceded by appellants in their opening brief, the challenged complaint for slander of title arose out of protected activity under section 425.16, and respondents satisfied their burden under the first step ofthe analysis. We now turn to the heart ofthis appeal, which is the second step ofthe statutory analysis. In response to the anti-SLAPP motion, once respondents made their initial threshold showing, the burden shifted to appellants to demonstrate a probability of



### 3 Section 760.010, etseq., which governs quiet title actions, provides that immediatelyupon commencement of such an action, the plaintiffshall file a lis pendens in the office ofthe county recorder. (§ 761.010.)

9.prevailing on their claim. (§ 425.16, subd. (b)(1); Park 100 Investment Group II, LLCv. Ryan (2009) 180 Cal.App.4th 795, 805). That meant appellants had to state and substantiate a legally sufficient cause ofaction for slander oftitle. {Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) As noted above, we consider (but we do not weigh) the evidence presented by both sides, and we may decide that respondents' evidence defeats appellants' showing as a matter oflaw, '"such as by establishing a defense or the absence of a necessary element.' [Citation.]" {Carver v. Bonds, supra, 135 Cal.App.4th at p. 344.) As explained below, we conclude that appellants have not established a tenable claim for slander of title. We reach this conclusion on two separate grounds: First,the absolute privilege under Civil Code section 47(b) was applicable to the recording of the lis pendens in this case. Second,the evidence offorgery established as a matter oflaw that the second deed oftrust was void and, therefore, appellants never acquired title to the Property. Each ofthese grounds would be a sufficient basis to conclude that appellants have no probability ofprevailing on their claim. We shall discuss them separately, beginning with the issue ofprivilege. A. Privilege ofCivil Code Section 47(b) Appellants' sole cause ofaction was for slander oftitle. The elements ofa cause ofaction for slander oftitle are (1) a publication, which is (2) withoutprivilege or justification, (3) false, and (4) causes pecuniary loss. {Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) The critical question here is whether the publication in the present case—the lis pendens recorded by the Baquirans—was privileged under Civil Code section 47(b).

10.Civil Code section 47(b) provides that, with certain exceptions, a publication made 

### inanyjudicial proceeding isprivileged.4 Because of thevital purposes served bythis privilege, it is '"absolute"' in nature and applies to all causes of action except malicious prosecution. {Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Silberg v. Anderson (1990) 50 Cal.3d 205, 215.) The purposes of Civil Code section 47(b) are "'to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels ofcommunication and zealous advocacy, to promotecomplete and truthfultestimony, to give finality to judgments, and to avoidunending litigation.' [Citation.]" {Jacob B. v. County of Shasta 

### (2007) 40 Cal.4th 948, 955.) To further these important goals, the privilege is applied broadly. {Ibid.) "The usual formulation is that the privilege applies to any communication 

### (1) made injudicial or quasi-judicial proceedings; (2) by litigants or otherparticipants authorized by law; (3) to achieve the objects ofthe litigation; and (4) that have some connection or logical relation to the action. [Citations.]" {Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) "It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. [Citation.]" {Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057.) It appliesto "any publicationrequired

or permitted by law in the course ofajudicial proceeding to achieve the objects ofthe litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved." {Silberg v. Anderson, supra, at p. 212.) The publication at issue here was the lis pendens recorded in connection with the Baquirans' complaint to quiet title to the Property. '"A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to 

### 4 Civil Code section 47(b) isoften referred toasthe litigation privilege. {Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057.)

11.possession ofthe real property described in the notice.' [Citation.] A lis pendens may be filed by any party in an action who asserts a 'real property claim.' (Code Civ. Proc, § 405.20.) Section 405.4 defines a '"Real property claim'" as 'the cause or causes of action in a pleadingwhich would, ifmeritorious, affect (a) title to, or the right to possession of, specific real property ....'" {Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647, fn. omitted.) Previously, the absolute privilege of Civil Code section 47(b) has been broadly applied to the recording of a lis pendens. {Albertson v. Raboff {1956) 46 Cal.2d 375, 379 

### {Albertson).) "If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches. [Citations.] It therefore attaches to the recordation of a notice oflispendens, for such a publication is permittedby law, and like other documents that may be filed in an action, it has a reasonable relation thereto and it is immaterial that it is recorded with the countyrecorder instead of being filed with the county clerk." {Id. at p. 381.) 

### Albertson's holding, however, has been somewhat limited or "partiallyabrogated" by a 1992 amendment to Civil Code section47. {Park 100Investment Group II, LLC v. Ryan, supra, 180 Cal.App.4th at p. 813, fn. 5; Palmer v. Zaklama (2003) 109Cal.App.4th 1367, 1378-1379 {Palmer).) That amendment addedthe provisionthat is currently set forth at Civil Code section 47, subdivision (b)(4) (hereafter Civil Code section 47(b)(4)), which states: "A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court ofcompetentjurisdiction which affects the title or right of possessionof real property, as authorized or required by law." (Italics added.) As a result of this provision, "the litigation privilege ... applies if'the lis pendens (1) identifies an action 'previously filed' in a court of competentjurisdiction that 

### (2) affects title or right to possession of realproperty." {Alpha & Omega Development, LPv. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 665 {Alpha & Omega), italics added.)

12.Here, the subject lis pendens expressly identified the Baquirans' previously filed action—namely, the Baquirans' complaint to quiet title. In addition, that action was clearly one that affected title or right to possession of the Property, since it sought to quiet title to the Property through cancellation ofthe foreclosure sale and restoration of title and possession to the Baquirans, all on the ground that the second deed oftrust was a forgery. Thus, the statutory conditions for application ofthe privilege to a recorded lis pendens, as set forth in Civil Code section 47(b)(4), have plainly been satisfied in this case. It follows that the privilege ofCivil Code section 47(b) applies to the subject lis pendens, thereby precluding liability for slander oftitle. Appellants nevertheless contend the privilege ofCivil Code section 47(b) does not apply to the lis pendens in this case. They argue that because the Baquirans' complaint to quiet title lacked evidentiary meritto the extent the facts showed the second deed oftrust was merely "voidable" rather than void, the privilege did not attach. In so arguing, appellantstake the position that the privilege only applies to a recorded lis pendens if it is shown that the underlying action has evidentiary merit. In support ofthat proposition, appellants rely on language from Palmer, supra, 109 Cal.App.4th 1367, a prior decision ofthis court. We now consider that decision at length. In Palmer, the plaintiffs acquired ownership ofa house in Bakersfield by purchasing it at a sheriffs sale that took place to satisfy ajudgment lien in a creditor's collection action. Later, the former owners filed a bankruptcy action and also filed an appeal in the collection action. In connection with these court filings, the former owners recorded a lis pendens that effectively prevented the plaintiffs from being able to sell or refinance the property. {Palmer, supra, 109 Cal.App.4th at pp. 1370-1374.) The plaintiffs then sued the former owners for slander oftitle, asserting that the actions brought by the former owners were not the type ofproceedings for which it was appropriate to file a lis pendens. {Id. at p. 1381.) Palmeragreed with the plaintiffs' theory, holding that the privilege ofCivil Code section 47(b) did not apply to the lis

13.pendens in question, since the underlying collection and bankruptcy actions filed by the former owners did not allege a real property claim. {Palmer, supra, at p. 1381.) On that record, the holding in Palmer was correct. The language relied on herein by appellants came at the end ofPalmer's discussion ofdevelopments in the law. Palmer summarized the revisions enacted in 1992 to the lis pendens statutes, in which former sections 409 to 409.9 were repealed and replaced by sections 405 to 405.61. {Palmer, supra, 109 Cal.App.4th at pp. 1377-1378.) Palmer noted that under the new statutory scheme, a motion to expunge a lis pendens could be based not only on a failure to plead a real property claim (§ 405.31), but also on a failure of the claimant to establish by a preponderance of the evidence the probable 

### validity of thereal property claim (§ 405.32).5 {Palmer, supra, atpp. 1377-1378.) Thus, the revised lis pendens statutes provided that a lack of evidentiary merit would be a ground for expungement: "'Ifthe claimant doesplead a real property claim, but the claim pleaded has no evidentiary merit, the lis pendens must be expunged upon motion under [section] 405.32.'" {Id. at p. 1378.) Palmer observed that in the same year that these revisions to the lis pendens statutes took place (1992), the Legislature also amended section 47 ofthe Civil Code to add subdivision (b)(3), now subdivision (b)(4), which "'partially abrogated'" the holding ofAlbertson that recording a notice oflis pendens is absolutely privileged. {Palmer, supra, 109 Cal.App.4th at pp. 1378-1379.) After quoting the language ofCivil Code section 47(b)(4), Palmer concluded its summary ofthe lis pendens statutes and Civil Code section 47(b)(4) with the following statement: "Therefore, if the pleading filed by the claimant in the underlying action does not allege a real property claim, or the alleged



### 5 Section 405.3 states that'"[pjrobable validity'" means "with respect to areal property claim," it is "more likelythan not that the claimantwill obtain a judgment against the defendant on the claim."

14.claim lacks evidentiary merit, the lis pendens, in addition to being subject to expungement, is notprivileged. It follows the lis pendens in that situation may be the basis for an action for slander oftitle." {Palmer, supra, at p. 1380, italics added.) Appellants rely on the above quoted language in Palmer, supra, 109 Cal.App.4th 1367 to support their position that the litigation privilege does not apply to a lis pendens if the underlying action is lacking in evidentiary merit. Respondents counter that Civil Code section 47(b)(4) contains no evidentiary merit exception and they argue it would be improper to insert such an exception into the statute. In this regard, respondents argue that the subject language in Palmer, to the extent it added an evidentiary test to the privilege statute, is not a correct statement of the law. We agree with respondents. InAlpha & Omega, supra, 200 Cal.App.4th 656, the Fourth District Court ofAppeal recently examined Civil Code section 47(b)(4) and concluded there is no '"lack of evidentiary merit exception'" under the statute. {Alpha & Omega, supra, at p. 667.) There, as in our case, a party suing for slanderof title had argued—based on the language in Palmer, supra, 109 Cal.App.4th 1367—that the privilege did not attach if the underlying real property claim lacked evidentiary merit. {Alpha & Omega, supra, at p. 666.) The Court of Appeal explained its rejection of that interpretation of the statutory privilege: "We reject Alpha's interpretation ofsubdivision (b)(4) ofCivil Code section 47. In discerning the Legislature's intent, we look to the words of the statute, 'assigning them their usual and ordinary meanings, and construing them in context. Ifthe words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs.' [Citations.] [^j] The language ofsubdivision (b)(4) ofCivil Code section 47 is not ambiguous and in any event is not reasonably susceptible to a construction that would create an additional exception to the absolute litigation privilege based on the lack of 'evidentiary merit' ofa claimaint's real property claim in connection with a recorded lis pendens." {Alpha & Omega, supra, 200 Cal.App.4th at pp. 666-667.) We believe this analysis ofthe privilege statute is correct. Civil Code section 47(b)(4) does not contain a lack of'"evidentiary merit'" exception to the

15.litigation privilege, and it would be improper for us to insert what the Legislature has plainly omitted. {Alpha & Omega, supra, 200 Cal.App.4th at pp. 666-667; see § 1858 [courts role is to declare terms ofa statute, not to "insert what has been omitted"].) '"It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language; ifthe language is clear, there can be no room for interpretation, and effect must be given to its plain meaning. [Citations.] "An intentthat 

### finds no expression in the words of the statute cannot be found to exist. The courts may not speculate that the legislature meant something other than what it said. Nor may they 

### rewrite a statute to make it express an intention not expressed therein.'" [Citation.]" {Mutual Life Ins. Co v. City of LosAngeles (1990) 50 Cal.3d 402, 412.) Civil Code section47(b)(4) clearlydescribes the conditions for application of the 

### privilege to a recorded lispendens as follows: "A recorded lispendens is not aprivileged publication unless it identifies an actionpreviously filed with a court of competent jurisdictionwhich affectsthe title or right ofpossession of real property, as authorized or 

### required by law." (Civ. Code, § 47(b)(4).) Those conditions are: (1) the lis pendens must identify a previously filed action and (2) the previously filed action must be one that 

### affects title or right ofpossession of realproperty. Wedecline to add a thirdrequirement that there must also be evidentiarymerit.6 We also agree with the analysis in Alpha & Omega that this construction ofthe statute is further supportedby the statutory definition of what constitutes a real property claim. (See Alpha & Omega, supra, 200 Cal.App.4th at p. 667.) A party who "asserts a real property claim" may record a lis pendens. (§ 405.20.) Section 405.4 defines a '"[r]eal property claim'" as "the cause or causes of action in a pleading which would, if



### 6 Itis apparent that Palmer, supra, 109 Cal.App.4th 1367, in adding an evidentiary requirement, erroneously merged the evidentiary standard for a motion to expunge into the distinct question ofwhether the privilege applies.

16.meritorious, affect (a) title to, or the right to possession of, specific real property ...." Thus, "[s]ection 405.4 does not define [a] 'real property claim,' or lack thereof, on the basis ofthe strength or weakness ofthe evidence to support that claim. Instead, it is clear from the plain language ofsection 405.4 that a 'real property claim' is determined from the cause or causes of action set forth in the pleading(s)." {Alpha & Omega, supra, 200 Cal.App.4th at p. 667.) Consistent with this definition, Civil Code section47(b)(4) states in like terms that, for the privilege to apply, a recorded lis pendens must identify "an action ... which affects" title or possession ofreal property. In other words, the action must assert a real property claim, which respondents clearly did here. Moreover, we believe that if the Legislature had intended to erect an evidentiary hurdle or create an exception to the privilege based on lack of evidentiary merit, it would have said so. Since the Legislature did not do so, we are not at libertyto insertwhat has been omitted. For these reasons, we reject appellants' propositionthat the availability of the litigation privilege to a recorded lis pendens depends upon whether the claimant is able to make a certain evidentiary showing of merit to supportthe real propertyclaim. On this issue, the dicta inPalmer, supra, 109 Cal.App.4th 1367, that is relied upon by appellants was in error and we decline to follow it. In conclusion, we hold that the absolute privilege of Civil Code section 47(b) applied to the recorded lis pendens in this case and, therefore, appellants cannot prevail on their complaint for slander of title as a matter of law. Accordingly, the trial court correctly granted respondents' special motion to strike. B. The Forged Deed Was Void The second reason the trial court's anti-SLAPP ruling was correct is based on the evidence of forgery. Appellants argue that since the Baquirans admittedthey may have signed the second deed of trust, it was merely voidable, not void. Respondents contend that since the second deed of trust was materially altered, it was a forgery and therefore void. As we briefly explain, respondents are correct.

17."A deed is void ifthe grantor's signature is forged or ifthe grantor is unaware of the nature ofwhat he or she is signing. [Citation.] A voidable deed, on the other hand, is one where the grantor is aware of what he or she is executing, but has been induced to do so through fraudulent misrepresentations. [Citation.]" {Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374, 378.) "Although the law protects innocent purchasers and encumbrancers, 'that protection extends only to those who obtained good legal title. [Citations.]

... [A] forged document is void ab initio and constitutes a nullity; as such it cannot provide the basis for a superior title as against the original grantor.' [Citations.]" {Id. at pp. 379-380.) A forgery includes '"a false making of a writing'" that '"falsely purports to be the writing ofanother.'" {Wutzke v. Bill ReidPaintingService, Inc. (1984) 151 Cal.App.3d 36, 41-42, italics omitted.) A deed that has been materiallyaltered after it was signed is a forgery. {Montgomery v. Bank of America (1948) 85 Cal.App.2d 559, 563 ["Since the deed was altered without the knowledge, consent or approval of plaintiffs, after it had been signed by them and transmitted to the escrow holder, it was void."]; {Wutzke v. Bill ReidPainting Service, Inc., supra, at pp. 43-44 [a forged deed is void].)Here, respondents have produced uncontradicted evidence to establish that the second deed of trust was materially altered after it was signed. The Baquirans were apparently induced to sign a deed oftrust in favor ofAllstar Financial Services and Ronna L. Williams, which deed oftrust was later altered by Zarrell Williams to create something materially different—a deed oftrust in favor ofthe Mahlums. Existing names and other information were covered over by Williams with masking fluid and the Mahlums' names as beneficiaries were fraudulently inserted to replace what was there 

### before. The second deed of trust was altered by Williams in an attempt to fraudulently support an unrelated loan or debt he had with the Mahlums. The Baquirans never met the Mahlums, never sought a loan from the Mahlums and never borrowed any money from them. In short, the Baquiransnevercontemplated, never authorized and never signed a

18.deed oftrust in favor ofthe Mahlums. Respondents contend that this evidence conclusively shows that the second deed oftrust in favor ofthe Mahlums was a forgery. We agree. Since the second deed oftrust was materially altered after it was signed, it was a forgery and was therefore void. {Montgomery v. Bankof America, supra, 85 Cal.App.2d at p. 563 [materially altered deed was void].) Since the second deed oftrust was a forgery and was void, appellants received no 

### title by it.7 {Schiavon v. Arnaudo Brothers, supra, 84Cal.App.4th atpp. 379-380.) Accordingly, for this additional reason, appellants failed to establish a probability of prevailing on their claim for slander of title and the special motion to strike was properly granted.
DISPOSITION The order granting respondents' special motion to strike is affirmed. Costs on appeal are awarded to respondents.

Kane, J. WE CONCUR:
Wiseman, Acting P.J.

Cornell, J.



### 7 Appellants suggest the deed oftrust may have been "blank" when signed. The purported evidence on this point was vague, equivocal (as to particular transaction) and hearsay, and for these reasons could not support ajudgment in appellants' favor. And even ifthe evidence on this point were admissible, it would not change the outcome because it does not dispute or contradict the critical fact that the deed was materially altered after it was signed and hence a forgery. Finally, we fail to see how the "blank" deed theory could conceivably support appellants' position, since a blank deed is also void. (See Trout v. Taylor (1934) 220 Cal. 652, 656; Green v. MacAdam (1959) 175 Cal.App.2d481,486.)

19.

# D

27Filed 4/16/13 LaChapelle v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certifiedfor publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certifiedfor publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT
DIVISION TWO

FRANK LACHAPELLE, Petitioner,

THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;
HANSEN MCCOY INVESTMENTS, LLC, et al.,

Real Parties in Interest. E058014 (Super.Ct.No. INC 1101291)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted. John C. Torjesen & Associates and John C. Torjesen for Petitioner. No appearance for Respondent.

Theresa A. Jones for Real Parties in Interest.In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. {Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) In the underlying action, petitioner alleges that the security instrument that was 

### executed andrecorded whenhe refinanced his home is voidbecause it wasprocured by fraud and forgery. Thus, he asserts the real parties in interest, who were purchasers at a non-judicial foreclosure sale and their successors in interest, did not acquire valid title. He asks in an amended pleadingfor cancellationof their deeds and for quiet title. Petitioner filed a notice of lis pendens on February 25. 2011. 

### Real parties moved to expunge the lis pendens on the ground that petitioner cannot establish the probable validity of his claim. They contend that their trustee's deed relates 

### back to the recordingof the trust deed in 2008 and petitionercan claim no present interest in the property. They also contend that his claim offraud can form a basis for a claim for 

### money damages only—and not a claim for title or possession of the property. 

### The trial courtordered thenotice of lis pendens expunged. In its tentative ruling, the trial court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to 

### support its ruling: "Thepurchasers title (at a foreclosure sale)... is notencumbered by any interest that is created and recorded after the deed of trust, but prior to the date of the foreclosure sale, even if the foreclosure sale purchaser had actual or constructive notice of the intervening lien or interest." The court recited the facts that the notice of defaulthere showed that the trust deed foreclosed upon was last modified and recorded on November 5, 2009; petitioner's first lis pendens notice was not recorded until February 15, 2011, and that his second one naming moving parties was not recorded until January 3, 2013. "Thus, the moving defendants' trustees' deed relates back to the date of 11/5/09
trust deed and is effective prior to any notice oflis pendens. As a result, there is no basis for a lis pendens to remain against the property." The parties presented no additional argument at the hearing and the tentative ruling became the court's ruling. Petitioner seeks review ofthis ruling pursuant to Code of Civil Code section 405.39. We conclude that the court's stated reasons do not support the order for expungement. Justification for setting aside a foreclosure sale is that the deed of trust is void. {Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104-105; see Stockton v. Newman (1957) 148 Cal.App.2d 558, 563-564 [trustor sought rescission of promissory note on grounds of fraud].) There, Lona's home was sold at a nonjudicial foreclosure sale. Lona sued the lender, the loan servicer, and others to set aside the trustee's sale, claiming he

was a victim ofpredatory lending in that the loan broker ignored his inability to repay the loan and Lona, lacking fluency in English, did not understand many of the details of the transaction. The court reversed summaryjudgment for the lenders, concluding that Lona had raised a triable issue that the underlying loan was illegal and unconscionable, thus excusing him from the requirement he tender full payment of the debt to obtain relief. Plaintiff's notice of lis pendens is not a lien itself, but simply gives notice that plaintiff was challenging the validity of the trust instrument. Here, at least in the FifthAmended Complaint, petitioner is claiming that the trust deed is void because offraud in 

### the inducement and forgery. Petitioner's position is much like Lona's—the security instrument was void and he filed suit challenging it. Thereafter, the nonjudicial foreclosure sale took place, which he now seeks to set aside. Indeed, in the same section cited by the trial court (3rd. ed., § 10.208), Miller and Starr also states that in certain cases the purchaser's title following a foreclosure sale is subject to being recovered by the trustor by an attack on the validity of the instrument. Thus, it appears he has stated grounds to set aside the sale based on the invalidity ofthe trust deed—he does claim an interest in the real property so that the trial court erred in expunging the notice of lis pendens Real parties' argument that fraud is simply a monetary claim is not well taken, and we note that petitioner alleges that he acted to rescind the original agreement based on this fraud and forgery. Real parties also argue that thejudgment of foreclosure and the eviction have conclusive effect, but in the case relied on, Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, there was a claim that there were irregularities in the foreclosure sale itself. The judgment of foreclosure was conclusive as 

### to the purchaser's title. Here, as discussed above, petitioner is challenging the security instrument as void. Thus, the foreclosure judgment is not conclusive that that instrument

was valid. We offer no opinion whether the trial court may correctly base an order for 

### expungement on other factors showing petitioner cannot establish the probable validity of 

### his claim. We merely conclude that the trial court's ruling was based on a narrow ground

### regarding the priority of the purchaser's deed, which is not justified based on the face of petitioner's pleadings. Thus, we conclude that the petition must be granted and the trial 

### court directedto reconsider the motion. The trial court is in no way precludedon reconsideration from reaching the same result, i.e., finding that petitioner has not shown the probable validity ofhis claim under Code of Civil Procedure section 405.32.

DISPOSITION 

### Let a peremptory writ ofmandate issue directing the Riverside SuperiorCourt to set aside and vacate its order granting the motion to expunge lis pendens and to reconsider the matter in accordance with the views expressed herein. 

### Petitioner is directed to prepare and have the peremptory writ of mandate issued, 

### copies served, and the original filed with the clerkofthis court, together with proofof service on all parties.

Petitioner is to recover his costs. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

We concur:

RAMIREZ P.J.

KING

# E

ItUit,^.Case No. 04-14-00483-CV
ROWLAND J. MARTIN Appellant

EDWARD BRAVENEC AND 1216 WEST AVE. INC. Appellees TEXAS COURT OF APPEALS

FOR THE FOURTH DISTRICT

BEXAR COUNTY, TEXAS ORDER ON MOTION FOR SPECIAL EXCEPTIONS AUTHORIZING ISSUANCE OF WRIT FOR TEMPORARY INJUNCTIVE RELIEF TheCourt is of the opinion that it should partially grantAppellant Rowland J. Martin's expeditedmotion for judgment and writs in light ofchain oftitle evidence contained in the Supplemental Record for theproperty knownas 1216WestAve. SanAntonio Texas, filed on February 18, 2015. 

### The Court finds in light of therecord evidence thatAppellant Martin is alleging thathe is 

### the owner of apurchase money lien interest thatruns with theland relating back to theoriginal sales andpurchase transaction between Roy Ramspeck and Moroco Ventures, LLC in 2003; that this transaction is separate and collateral to the transactions between the Law Office of McKnight andBravenec andMoroco Ventures, LLC in 2005, andthat theparamount interest 

### reflected inAppellant's purchase money claim was neither forfeited norextinguished bythe post-petition foreclosure sale that the trustee for McKnight and Bravenecexecuted on October 3, 2006 during Bankruptcy Case No. 06-15829, and which the 57th Judicial District Court noticed in its order on November 1, 2006. In view of recordevidence of the separate and collateral natureof the property interest Appellants alleges in a third party purchase money lien transaction, the Court finds that it should maintain the status quorelating to Appellant's claimed interests in the real propertyat 1216West Ave., in San Antonio, Texas, as this will aid appellatejurisdiction to adjudicate issues relating to the two orders designated as the subject ofthe appeal. THEREFORE, IT IS ORDERED thatthe Court takesjudicialnotice, andadmits intothe record, the following pleadings and supporting exhibits: the briefing amendments submitted onJanuary 30, 2014 and February 12, 2015 and filing supplemental appendices by AppellantRowlandJ. Martin; and the deposit ofClerk's Supplemental Records. IT IS FURTHERORDERED that the Appellant's motion for specialexceptions and application forissuance of a writgranting relieffrom alleged fraud on the courton July 8, 2014 

### are hereby GRANTED inpart, thatthe gag order and findings issued bythetrial court onJuly 17, 2014 are hereby VACATED nunc protunc; and that theextension oftime previously granted to Appellees for the filing ofa responding briefis STAYED.

28IT IS FURTHER ORDERED that in lieu offiling a responding brief, the Appellees and 

### interested parties are hereby instructed to respond to Appellant's interrogatories, andto file a responsive pleading to Appellant's motion for special exceptions and forjudgment on the pleadings. ITFURTHER IS ORDERED thatthe Court finds that the conditions precedent for an 

### automatic stay from discovery and trial proceedings pursuant to Section 51.-014(b) oftheTexas 

### Citizen's Participation Act were satisfied with the entry of anorder denying amotion pursuant to Tex. Civ. Pare. &Rem. Code Section 27.003 onJuly 17, 2014, and the filing of atimely notice ofinterlocutory appeal from thetrial court denying dismissal relief earlier onJuly 9, 2013. IT IS FURTHER ORDERED thatthe Court finds the following: thatAppellant has 

### established aprima facie claim for temporary injunction pursuant to Rule 682, and special exceptions pursuantto Rule 91, of the Texas Rules of Civil Procedure; that the claims 

### demonstrate aprobability ofsuccess onthemerits, and thatthedenial oftherequested relief 

### would more likely than not cause injury that cannot beremedied with monetary damages. IT IS FURTHER ORDERED thatTorralba Properties, LLC, andanyandall of itsjoint owners, successors andassigns, areherebyjoined in the instant interlocutory appeal proceeding as interested parties. IT IS FURTHER ORDERED thatAppellant Rowland J. Martinis hereby authorized to conduct limited discovery relating to Edward Bravenec, 1216WestAve., Inc., Torralba 

### Properties, LLC, and One ForAutism, Inc. in connection with thefiling of hisreply brieforuntil March 31, 2015, which ever is later. IT IS FURTHER ORDERED that duringthe discovery period the appellees and interest 

### parties areenjoined from executing transfers orrecoding deed records affecting anychange in ownership, control orpossession of the West Ave. property untilthe conclusion ofproceedings.

Date: February 24, 2015 Presiding Judge

29

# FROWLAND J. MARTIN Appellant Case No. 04-14-00483-CV

TEXAS COURT OF APPEALS

EDWARD BRAVENEC AND 1216 WEST AVE. INC. Appellees FOR THE FOURTH DISTRICT

BEXAR COUNTY, TEXAS

PROPOSED INTERROGATORIES TO ATTORNEY GLENN DEADMAN INVOKING FRAUD EXCEPTIONS TO THE ATTORNEY CLIENT PRIVILEGE To Attorney Glenn Deadman: 

### Please answer these interrogatories ("questions") to thebest ofyour personal knowledge. These questions have theforce and effect ofbeing continuous and ongoing innature. Any occurence that changes a previously given answer must be corrected and forwarded to the 

### undersigned Appellant r within areasonable time. Due to your dual role as attorney and witness 

### for Appellees, and the commission ofanapparent fraud onthe court, there is nounqualified attorney clientprivilege available to you underthe fraud exception to the attorney client 

### privilege. However, there is noobjection to invocation oftheFifth Amendment privilege against self-incrimination. 1. Is your positionthat there was not any exchange between you andRowland Martinon or aboutDecember 1, 2014 concerning the deedrecorded on July 8,2014? 2. Is it yourposition that a telephone exchange tookplacein December, and that your neglect to inform the Court about the change ofposition is excused on some previously unstated basis? If so, what basis is that? 3. Is it the fault of your clientEdward Bravenec that the Courtand the undersigned were misinformed aboutthe true stateofaffairs concerning the deedrecorded on July 8, 2014? 4. Is it your position that it is Rowland Martin's fault that the Court was misinformed about the true state ofaffairs concerning the deed recorded on July 8, 2014? 5. Do you admit that you failed to conduct adequate pre-filing inquiries to ascertain whether your client was telling the truth or not? 6. Was it ever your intention to inform the Court about the true state ofaffairs? 7. Is it yourpractice to wait untilknown adverse information is disclosed by othersbefore you decide to make the disclosure yourself?

308. What wasthe outcome of themisconduct proceeding in which youwere the respondent of apetition filed by the Commission forLawyer Discipline alleging that youengaged in acts ofdeceit? 9. Did Bravenec know about yourbackground as the respondent of a state bar misconduct proceeding ? 

### 10. Was thefact thatyou were therespondent of a state barmisconduct proceeding a factor in his decision to select you? 11. Did you discuss the situation with your client? 12. Whatexplanation for the omissiondid your client give? 13. Is it true that TorralbaProperties, LLC was the recipient of a deedtransferon July 8, 2014, as averred in the deed record filed with the County Clerk? 14. Is it true that Edward Bravenec gavetruthful testimony on July 9, 2014, and the deed record filed the preceding day in his name was a forgery? 15 What payment arrangements were made for yourservices? Or youa partyto a contingency fee arrangement, or does Bravenecpay you in cash? 16. Will youreceive compensation from theproceeds of anyescrow accounts ofwhich your client Edward Bravenec is the beneficiary? 17. Can you deny any ofthe facts suggesting that Edward Bravenec committed fraud on the court occurred on July 9, 2014, and do you have sufficient information about the event to form an opinion in response to the question? 18 Can you deny any ofthe facts suggesting that Edward Bravenec filed a deed record on July 8, 2014 that was inconsistent with his testimony on July 9, 2014, and do you have sufficient information about the event to form an opinion in response to the question? 19. Have you or Edward Bravenec engaged in reckless disregard for the truth at any other time in the proceedings in Case No. 2014-CI-07644? 20. Do you recall statingto Judge Dick Alcala that DefendantRowlandMartin acquireda subpoenaduces tecum to compelwitnesstestimony for the contempthearing on or about July 1, 2014 through improper means and without the express consent and authorization of the BexarCounty DistrictClerk's Office, and if so, is that still yourtestimony? 21. Is it yourposition that por se litigants arebarred from using subpoenas to compel witness 

### testimony? Ifnot, please explain how the subpoena youobjected to on or about July 1,

312014 failed to conform to the legal requirements applicable to subpoenas prepared by the Bexar County District Clerk's Office. 22. Howmuch money did 1216 West Ave., Inc. make from itspossession andcontrol of the West Ave. property? 23 Didthe netprofits exceed the face value of the loanexecuted in Mayof2005? 24. Howmuch of the surplus value of thetransaction didMcKnight andBravenec disburse to Appellant Rowland Martin? 

### 25. Identify thetitle insurance company and escrow agents for thetransfer inJuly 2014.

32