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;

AN EXPEDITED JUDGMENT AND WRIT RELIEF ON THE PLEADI?feS gj

TO ENFORCE THE TEXAS CITIZEN'S PARTICIPATIONAGT^ ro

——T7 <r> -i.-j-r~

TO THE HONORABLE FOURTH COURT OF APPEALS: m ->-. 3 5?°

u^

Pursuant toSections 27.003 and 51.014(a)(12) of the Texas Citizen's Participation Ast <•:'

-'• '"' CO >[?-.

(TCPA) andRule 91 of the Texas Rules of Civil Procedure (TRCP), Appellant files this

"Supplemental Motion ForRehearing To Request An ExpeditedJudgment And Writ ReliefOn

The Pleadings To Enforce The Texas Citizen's Participation Act, "to supplement his motion for

rehearing filed onFebruary 12,2015 asfollows: (a)to request judicial notice of briefing

amendments filed on January 30, 2015 and February 19,2015; (b) to move forspecial 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 a judgment and

writ relief on the pleadings as of February 19, 2015. In support, Appellant requests notice ofthe

supplemental record filed by the Clerk on February 19, 2015, and waiver of any and all

procedural restrictions inconsistent with Open Courts Doctrine. Criswell v. 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
in the fraud onthecourt advisory amendments filed onFebruary 19, 2014. Insummary,

Appellant requested dismissal asthe owner of a purchase 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 of McKnight 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 onor about February 19, 2015.

The major live issue isthe accrual of a resulting trust on July 8, 2014 ofwhich Appellant

is a creditor 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 the injury 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 the United States withrecord evidence of fraud on the courtandmultiple violations

of automatic 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 case triggering 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 the
resulting trust accruing with the transfer to Torralba negates an essential element of the

plaintiffs case fortortious interference invoking thetrialcourt's plenary jurisdictional, andthus

impaired the trial court's capacity to administerjusticeon July 17, 2014.

OnDecember 8,2014 theCourt 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 the orders this court has expressly identified asthe

subject ofthis appeal." Nonetheless, in view oftheissues offirst impression, Appellant

respectfully declines, in the absenceof more detailed guidance, to read the Court's orders to

meanthat TCPA Section27.011(a) withholds jurisdictionto enforceimmunitiesfrom fraud on

the court and automatic stay violation transpiring during a perfected interlocutory appeal. Inthe

interest ofjudicial efficiency, therefore, Appellant respectfully requests theCourt to give effect

to the text of TCPA Section 27.011(a) by granting special exceptions to immunitize his appeal

from Bravenec andDeadman's misconduct, by reversing thetrial court, 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 goodfaith argument for extension 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'sfraud on the courtor badfaith conduct incidental to the denial of an interlocutory

TCPA motion to dismiss. As a general rule, the protection 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 and safeguard 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 the rights 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 andany issue 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 of association, that party may file a motionto

dismiss the legal action." 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 court proceedings. 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 of Section 27.008 and 27.011 means that

the courts of appeals have authority to adjudicate a fraud onthe court issue in an interlocutory
appeal, asshown more specifically by the provisions 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 be construed liberally to effectuate its purpose andintent fully." Id. Inthis

regard, TRCP 91 provides explicit procedural support for allowing special exceptions in an

interlocutory appeal to the Courtto fully ascertain its Anti-SLAPP jurisdiction.

Historically, the common lawimmunities from fraud on the courtredressible through a

motion for special exceptions are available to a proponent who shows "an unconscionable plan

or scheme which is designed to improperly influence the court in its decision.'" Rozier v. Ford

Motor Co., 573 F.2d 1332, 1338 (5thCir.1978). Onlythe most egregious misconduct suchas

fabrication of evidence 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 of equity

to the effect that under certain circumstances, one ofwhich is after-discovered fraud,

relief will 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

consistof conduct: (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 an issue hasbeenjudicially noticed, theCalifornia Supreme Court decision in

Wilson v. Parker, Covert &Chidester, 123 CR2d 19(Sept. 2002) (case attahced). Wilson

involved a malicious prosecution controversy following reversal ofa trial court's order denying

thedefendants' Anti-SLAPP motion. The issue was whether thetrial court's ruling established

thatthe plaintiffs originally hadprobable cause to bring their original suit, andif so whether the

probable cause factorbarredthe defendants' malicious prosecution claim. TheCalifornia

Supreme Court reasoned that thetrial court's denial oftheAnti-SLAPP motion implied thatthe

original claim had at least some merit, and thatabsent proofthatthetrial court ruling was

obtained by fraud, a claim formalicious prosecution would not lie though the ruling waslater

reversed on appeal.

As shownin HomeyTel v. Moser, 2004 WL829006 (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 it threatens the efficient administration ofjustice. 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 from prosecuting a civil claim after he

or she learns that the claim has no merit encourages voluntary dismissals ofmeritless

claims at the earliest stage possible, assists the efficientadministration ofjustice, 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 of malicious prosecution law

are virtually synonymous with those that TCPA Section 27.003 serves by designating certain
events 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 entertain interlocutory appeals.

The TCPA's procedures for expedited appeals encapsulate theethos ofTexas lawfor jus

cogens standards of judicial conduct, toward plaintiffsand defendants alike, where enumerated

freedoms are atstake 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 rulethatjudgment and orders are voidab initio, notmerely

voidable, when rendered bya coram non judice tribunal, such as a trial court thatattempts to

exercise jurisdiction afterthe activation of an automatic stay. Larry York v. State, 373 S.W. 3d

32 (2012). The statelawrules against voidjudgments is binding on the intermediate state courts,

andsupercedes federal court choice of lawexcept when decisions of the U.S. Supreme Court are

in play. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam).

Compelling prudential support for the prompt adjudication offraud on the court issues in

an Anti-SLAPP interlocutory appeal isfound 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 for distinguishing special exceptions eligible for discretionary review under Section

27.011(b), from privateparty pleas to jurisdictionthat are categorically barredfrom reviewunder

Section 51.014(a). It goes without saying that constitutional and prudential standing and plenary
jurisdiction 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 of construction mandated in TCPA Section 27.011(a) defeats the Act's purpose.

The procedures in TRCP91 forspecial exceptions are the customary vehiclefor

challenging fatal deficiencies in an adverse parties' pleadings, andmaybe usedto assertthat the

adverse party has notpleaded a valid cause of action at all, Mowbray v. Avery, 76 S.W.3d 663,

677 (Tex. App.—Corpus Christi 2002, pet. denied), in which case the otherwise available right

to amend isforfeited. Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 335 (Tex.

App.—Fort Worth2005,pet. denied). The grantor denial of special exceptions isreviewed for

abuse of discretion. Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000,

no pet.)). A special exception is generally adequate if it points out withspecificity howthe

plaintiffs allegations are faulty, so as to differentiate the exception from a general demurrer. The

allegation thata party hasfailed 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 is justiciable 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. CordilleraCommunications, Inc., Case No. 2:13-CV-124 (S.D.

Tex., November24,2014), at p. 2; cf, Goad vZuehl Airport FlyingCommunity Owners

Association, Inc., CaseNo. 04-11-00293-CV (Tex. App. - SanAntonio, May 23,2012)

(rejecting vexatious litigant treatment). Fraud on the court is a well-known vexatious tactic that
r

is covered byRule 11, Section 1927 and statelawpublic policy principles: "For the lawto

countenance ... abrupt and shameless shift[s] of positions would give prominence (and

substance) to the 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 theCourt to grantspecial exceptions forfraud on

the court inCase No. 2014-CI-07644 leading to formation ofa resulting 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; see also,

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 of a 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 the closed 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, the courts of appeals 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 a permanent injunction is vitiated in its

entirety bytheirfraud on the court or badfaith conduct arising from the evidentiary contradiction

between Bravenec's sworn deed record showing thathe conveyed the property on July8, 2014,

and Deadman's concealment ofthe 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 the governing rules oflaw on lispendens speech, and by giving 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 that Appellees 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 of property underthe

supervision of a 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, and remanded 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 due process. The resultingtrust that arose from these acts

negates the Appellees' standing as the real parties in interest oftheir cause of action. Id.

3. Bad Faith Conduct Arising From The Dual Role Of Appellees' Attorney As

Attorney And Witness.

10
Appellant asserts for his third special exception that Deadman acted in a dual role as an

attorney andwitness in giving testimony, in response to a direct question from the presiding

judgeposed in open court in the 28rth Judicial District Court, which falsely identified One For

Autism asthe prospective purchaser. Deadman made a positive averment onJuly 9, 2014 by

stating his personal beliefthatOne forAutism was the prospective purchaser when theCourt

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 Of Federal Question Jurisdiction And Equitable TollingUnder 28

U.S.C. 1367.

Appellant asserts for hisfourth special exception that Appellees' resjudicata and statute

of limitations arguments are invalid, as is their premise that the Fifth Circuitexercisedfederal

question jurisdiction in anyfinal judgment or orderto giveresjudicataeffect to thejudgment in

Martin v. Grehn in CaseNo. 13-50070 as an adverse ruling on the purchase moneytransaction

alleged in Appellant lis penden notice ofrecord on July 8,2014. Chisholm, Id. Contrary to

Appellees contentions, it misses the point to allege that Appellant is not the holder of a valid

right of redemption because the allegation is thatAppellant is the owner of a thirdpartypurchase

moneylien, and that federal law in 28 U.S.C. 1367mandates equitabletolling of unadjudicated

state law claims surviving a closed federal case. Id. Under the circumstances, 28 U.S.C. 1367

dictates byoperation of lawthatthestate courts have jurisdiction over unadjudicated legal

malpractice claims, estoppel by deed, and purchasemoney issues in Case No. 04-14-00483-CV.

Chisholm, Id.

11
5. Impermissible Prior Restraints On Speech And Contractual Obligations.

Appellantasserts for his fifth specialexceptionthat the cause of action to suppresspast

andfuture speech as documented in the gagorderof July 17, 2014 isinherently non-meritorious

and absurd. TheAppellees' cause of action styled as Case No. 2014-CI-07644 clearly qualifies

as a judicial proceeding 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 asspecified in Section 27.01 l(a).The gag order on July 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 of defamatory speech,

eventhe mostnarrowly crafted of injunctions 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 prior restraints).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 ofjudicial proceedings thatrelate notonly to the instant 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.

12
B. 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

ofJanuary 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, et al, 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 of a property interest being communicated by a lis pendens claimant.Id. In

short, their cause of action is a sham to deprive protected liberty and property interests of a

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, the evidence 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 of prevailing ....Id. Appellant contends thatthe

subject matter of the Appellees' 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 tort cases against the defendant filing party of a lis

pendens notice , and the state court ofappeals resolved the dispute against the non-moving party.

Id. Assuch, James supplies a Texas lawprecedent forconstruing a lispendens notice as

constitutionally protected speech withinthe meaning of the TCPA:

We agree 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 they represent [the beneficiary 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 trust controlled by him. All of these are "communication[s]

in or pertainingto a judicial proceeding."See id. § 27.00l(4)(A)(i). Appelleesargue that

that these actions 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 action related 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.

Assuch, the result inJames supports Appellant's briefings andevidence advocating that

Appellees tort theory is covered by the Anti-SLAPP laws of Texas. Id.

14
The treatment oflis pendens notices as a protected form of communication in Jamesis

consistent with treatments in three similarly situated non-SLAPP cases on point. 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 ofRiverside 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 La Jolla court held that the evidentiary merit ofthe noticing

party's unadjudicated "void ab initio deed" issue nota proper 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 Of Proof On

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 burdenof proof, 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 isfatal to theirburden under the TCPA clear and specific evidence standard. The

15
Newspaper 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 same conclusion as in Crazy Hotel and LaJolla.

Bravenec offeredtestimony under oath suggesting that Appellant wasinterfering with a

prospective sale to One To Autism when he knew or should have known a deed in his name was

filed to convey the property to Torralba the daybefore. Assuch, Appellees evidentiary showing

not onlyserves to establish the opposite of the pointforwhich it is cited, but is subject to

exclusion for public policy reasons according to the Court's decision inZuniga v. Grose, Locke,

&Hebdon, 878 S.W. 2d 313, 318 (Tex. App. SanAntonio 1994, writrefd). Their argument

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 ofShorty,

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 of orders 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 the property by disapproving the non-movants argument to that

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

nature ofwhat heorshe issigning. Avoidable deed, on the other hand, is one where the grantor

is aware ofwhat he orshe is executing, but has been induced to do 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 a nullity; as such it cannot provide the basis for a superior title as against

the original grantor... Since the second deed oftrust was a forgery and was void, appellants

received no title by it." La Jolla, Id. atp. 18-19. Here, Appellees have no evidence tonegate

Appellant'spurchase money claims. Judge Hudspeth'sfinal order in the 2010 federal civil case

facially concurs with theorder ofremand that U.S. Bankruptcy Judge LeifM. 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 to the insufficient evidentiary showing presented bythe purported creditors

in Unifund CCR Partners v. Villa, 273 S.W. 3d385 (Tex. App. - San Antonio, 2008).

4. Multiple DefensesAnd Affirmative Defenses Establish That The Appellees'

Hypothetical Tortious Interference Case Leads To Absurd Results.

In the unlikely 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 his primary defense to the

tortious interference claim thathis lispendens speech in general, andthe filing of a lis pendens

notice inCase No., 2014-CI-0744 inparticular, did not impair the contracting parties in

exercising the rights they claimed to have, and thatthe conveyance to Torralba is conclusive

17
evidence of thatfact. Newspaper Holdings, Id. Therefore, Appellant requestsjudicialnotice of

his affirmative defenses under the doctrine of estoppel by deed, andhis undisputed status as a

holder of encumbrances that run with the land. Urban Renewal Agency 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 of appeals upheld a grant of anAnti-SLAPP motion

forlis pendens 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 the non-movants, the facial authenticity of the second deed was enough to establish thatthe

lis pendens notice was unprivileged.

The movant owners responded by filing an anti-SLAPP motion, alleging that (1)the

recording of the lis pendens was a protected activity, and(2)the appellants could prevail on the

merits of their slander oftitle 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 the plaintiffs showing as a matter of law, suchas by establishing

a defense or the absence of a necessary element," and cited the evidentiary insufficiency of the

non-movants' showing as the reason for granting anti-SLAPP relief. LaJolla, Id. {citing Carver

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

18
LaChappelle involved a similarfact situationwherepurchasersat a nonjudicial

foreclosure sale movedto expungea lis pendensby allegingthat the claimantcould not establish

the evidentiary 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 the date of the foreclosure sale, even if the foreclosure sale purchaser had

actual or constructive notice of the intervening lienor interest." Idat p. 2. Onappeal, theLa

Chappelle courtof appeals concluded that the foreclosure judgment 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 sothatthe trial court erred in expunging the notice of lis pendens." Id. at p. 4.

On balance, 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 of redemption controversy with a purchase money transaction, are

doomed to fail because thedoctrine of estoppel bydeed enjoins them from denying restrictive

covenant evidence that demonstrates 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 relevant unadjudicated state

claimswere equitablytolled after the 2010 federal case by 28 U.S.C. 1367. Id. 3

3 See especially, Restatement (First) ofContracts § 136 (1932) ("[A] promise to discharge the

promisee's duty creates a duty ofthe promisor tothe creditor beneficiary to perform the promise."). For

case law onrestrictive covenants running with the land, seeDynamic Publ'g &Distrib. L.L.C. v. Unitec

Indus. Center Prop. 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.

19
CONCLUSION AND PRAYER

Thematter of whether Appellees' conduct on July 8, 2014, July 9, 2014and July 17,

2014 caused a forfeiture oftheir cause of action, and led to a resulting trust ofwhich Appellant is

the paramount creditor beneficiary, is directly related to both orders that the Court has designated

asthe subject ofthis appeal. Archer, Id. "On balance ... the costs tothe legal system [ofthe

orders sustaining Appellees' cause of action 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 courtandbad faith conduct byMssrs. Bravenec andDeadman,

Appellant would have occupied the position ofcreditor beneficiary by operation ofestoppel by

deed. Applying Zuniga, the Court has good cause to wipe the slate clean by declaring that Mssrs.

Bravenec and Deadman engaged in a fraud onthe court and bad faith conduct ingeneral, and

that a resulting trust that arose inconnection with their fraud on the court. An adequate remedy at

lawis not available. Appellees have previously withheld compensation forthe value of

Appellant's interestsin restrictive covenants, equitable servitudes, escrow accounts and title

insurance policy benefits. They also multiplied their state litigation with anunauthorized poststay counter-appeal for affirmative reliefin U.S. Court of Appeals Case No. 14-50093. See,

Supplemental Appendixfiled onJanuary 30, 2015. Temporary injunctiverelief is due because

Appellant's brief demonstrates 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 be remedied 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 well justified to counteract increases and distortions in litigation such as

these that have exerted a highly undesirable long term effect on the integrity ofthe judicial process since

20
WHEREFORE, 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 Relief OnThe 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. 2d 696, 707-11 (Tex. 1996). The only

conclusion one can plausibly reach is thatBravenec andDeadman'sconduct represents an egregious endaroundon Anti-SLAPP laws and Disciplinary Rules Of Professional 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).

21
ROWLAND 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. Daniel A. 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

23
ROWLAND 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 for judgment on the pleadings and writ relief are 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 FourthCourtof Appeals that

I did not know at the time of the hearingon July 17, 2014that a deed conveying 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 phone records.

2. My real property 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 of knowledge, 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 of his 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 Martin v. Bravenec, Case No. 14-50093 that has been

under review since last year. I have personal knowledge of orders issued by at least four

different federal districtcourtand bankruptcy 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 of a

24
propensity 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
B
Search

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 of Riverside 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 Legal Alliance 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 antiSLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc, §

425.16) establishes that probable cause did exist for bringing 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 of demurrers 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 of petition 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)) by establishing, 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 of Flaherty (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 of avoiding the chilling of novel

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 of Flaherty, supra, at p. 650.) Only those

actionsthat" '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 bymuch the same policy concern. Because malicious prosecution

[28 Cal.4th 818]suits have the potential to penalize and deter the legitimate invocation

ofthe judicial 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 court held that the organized protests came within the protective

scope ofsection 425.16, 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 of public 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 of malicious prosecution comprehensively in

Sheldon Appel, supra, 47 Cal.3d 863. We first considered the policy reasons 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 of constituting a new round of litigation itself (id. at p.

873). A preferable 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 judgment for 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 of action, butwhetherthis was apparently true, and it

was accordingly the right ofthe plaintiff to 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 summary judgment 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 summary judgment 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

summary judgment 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 other jurisdictions 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

proof that the prior litigation was groundless, frivolous or vexatious) was held precluded

where a defense motion for summary judgment 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 not groundless, frivolous, or vexatious 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 of law, 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

of nonsham litigation would tend to infringe FirstAmendment right of petition].)

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 of Appeal's partial vacation of the 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 of Appeal held the

evidence of Wilson'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, 115Cal.App.3d at p

J357J
To 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 summary judgment; 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 if the 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 of the 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 of the

[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 "if there is any substantial evidence tending to

prove all the controverted facts necessary to establish the plaintiffs case," a conclusion

that, like denial of summary judgment, is "not a d^erjmination_on thejrjerits^bidj
This latterpart of Lucchesi's reasoning has been undermined bythis court'ssubsequent

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 summary judgment 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 of action with evidence that, 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, 158Cal.App.3d 777, is disapproved

to the extent it holds otherwise.

Ourfavorable citation of Lucchesi in Crowley did not amount to approval of all 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 not all 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 "waswithout 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 of the 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 and jury trial

rights. In our view, plaintiffs' invocation of collateral estoppel is a red herring. [5] The

determination of probable 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, not because the same issue was litigated in

the prior case, but because the result in the prior case (whether a verdict or judgment in

the plaintiffs favor, or denial of a defense summary judgment or SLAPP motion)

establishes the existence of probable cause as a matter of law, 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 in these

circumstances contravenes the terms, and defeats the intent, of the 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 of proof or degree

of proof 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, not in 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 of losing 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 I concur with most of the majority's reasoning, Iwrite separately because Ifind

its distinction of Crowley 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 . . .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 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 of Lucchesi. .

. did not constitute 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 of material 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, I disagree with this holding. (See

id. at pp. 824-825.) Iwould therefore disapprove of Crowley to the extent it adopted 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 of injunctive relief

on procedural grounds. In the present case, the Court of Appeal held that the Kuzmich

trial court's grant of injunctive relief established probable cause for that cause of action,

but neither plaintiffs' petition for review nor any of defendants' 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) 22Cal.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 "if the statements [sued upon in the

libel case] were so clearly expressions of opinion 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, of evidence 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 of motion 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

26
Filed 4/16/13 LaChapelle v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court,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 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. 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 of law, and that

issuance of a peremptory writ in the first instance istherefore 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 and forgery. Thus, he asserts the real parties in interest, who werepurchasers at a

non-judicial foreclosure sale andtheir successors in interest, didnot acquire valid title.

He asks in an amended pleading for cancellation oftheir deeds and for quiet title.

Petitionerfiled 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 recording of the trust deed in 2008 and petitioner canclaim 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 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 and recorded after the deed of trust, 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 of default
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 the hearing andthe tentative

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 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 of predatory lending in thatthe loan broker ignored hisinability to repay the

loan andLona, lacking fluency in English, did not understand many of the details of the

transaction. The courtreversed summary judgment for the lenders, concluding that Lona

had raised a triable issue that the underlying loan wasillegal and unconscionable, thus

excusing him from the requirement he tender full payment ofthe debt to obtain relief.

Plaintiffs notice of lis pendens is nota lien itself, butsimply gives notice that

plaintiffwas challenging the validity of the trust instrument. Here, at least in the Fifth
Amended 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, the nonjudicial

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 issubject to being recovered by

the trustor by anattack onthe validity ofthe instrument. Thus, it appears he has stated

grounds to set aside the sale based on the invalidity of the trust deed—he does claim an

interest inthe real property sothat the trial court erred in expunging the notice oflis

pendens

Realparties' argument thatfraud issimply 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 thejudgmentof foreclosure and the

eviction have conclusive effect, butin 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. Thejudgment of foreclosure 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 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 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 way precluded on

reconsideration from reaching the same result, i.e., finding that petitioner has notshown

the probable validity of his claim under Code ofCivil Procedure section 405.32.

DISPOSITION

Let a peremptory writ of mandate issue directing theRiverside Superior Court to

set aside and vacate 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 of mandate 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.

KING
propensity 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 again increased 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

26
Filed 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 a judgment ofthe Superior Court of Fresno 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 of Civil Procedure section 425.16 (also

known as an "anti-SLAPP" motion).1 In ruling on the motion, the trial court concluded

that (1) the recording ofthe lis pendens was a protected activity under section 425.16 and

(2) appellants did not establish a probability of prevailing 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 of Civil 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, allfurther statutory references are to the Code of Civil

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 of Trust 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 of Steven 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 of eviction 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 of pending 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 of his 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 of alteration ofthe deed oftrust pursuant to which the

property was sold, support [the Baquirans'] theory that the deed oftrust was a forgery."

Criminal Conviction of Zarrell 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 of a 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 particular counts: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 of hard money property loans on behalf ofthe

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 The counts are numbered herefor convenience; suchenumeration did not appear

in the original.
performing a notarial act on a false or forged trust deed, and procuring 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 of withdrawal 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 of Title

On June 29, 2010, appellants filed their complaint for slander of title against

respondents. The complaint for slanderof title allegedthat the recording of the lis

pendens was not privileged 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 wasfalse, wrongful and unprivileged

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 couldnot establish a probability of prevailing 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 of
the motion was on the second step or prong ofthe analysis under section 425.16—that is,

whether appellants could show a probability of prevailing 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 of appeal 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 of a 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, if it does,

proceeding secondly to whether the plaintiff can establish a probability of prevailing on

the merits. [Citation.]" {Overstock.com, Inc. v. Gradient Analytics, 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 of the Anti-SLAPP Statute

"[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for

the early dismissal of unmeritorious claims filed to interfere with the valid exercise ofthe

constitutional rights offreedom ofspeech and petition for the redress of grievances.

[Citation.]" {Club Membersfor anHonestElection v. Sierra Club (2008) 45 Cal.4th 309,

315.) "The Legislature authorized the filing of a 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 of an 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 of action is one arising

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, whether appellants have demonstrated a probabilityof prevailing on

theirclaim forslander of title. (§ 425.16, subd. (b)(1).) In orderto establish a probability

of prevailing 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 of potential merit, the trial court considers the pleadings

and evidentiary submissions of both the plaintiff and the defendant (§ 425.16,

8.
subd. (b)(2)); though the court does not weighthe credibility or comparative probative

strength of competing evidence, it should grant the motion if, as a matter of law, 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 plaintiff shall 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 of action 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 of prevailing on their claim. We shall discuss them separately,

beginning with the issue of privilege.

A. Privilege ofCivil Code Section 47(b)

Appellants' sole cause of action was for slander oftitle. The elements of a cause

of action 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

in any judicial proceeding is privileged.4 Because of the vital 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 of communication

and zealous advocacy, to promote complete and truthfultestimony, to give finality to

judgments, and to avoid unending litigation.' [Citation.]" {Jacob B. v. County ofShasta

(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 of a judicial 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, if meritorious, 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, 180Cal.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 of competent jurisdiction 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 real property." {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 of a house in Bakersfield by

purchasing it at a sheriffs sale that took place to satisfy a judgment 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 of proceedings for which it was

appropriate to file a lis pendens. {Id. at p. 1381.) Palmer agreed 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 of Palmer's

discussion of developments 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 the real property claim (§ 405.32).5 {Palmer, supra, at pp. 1377-1378.) Thus,

the revised lis pendens statutes provided that a lack of evidentiary merit would be a

ground for expungement: "'Ifthe claimant does plead 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 a real

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.

In Alpha & Omega, supra, 200 Cal.App.4th 656, the Fourth District Court of Appeal

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, 109Cal.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) of Civil 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) of Civil

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' of a

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 of a 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

notspeculate that the legislature meantsomething 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 ofLosAngeles (1990) 50 Cal.3d 402, 412.)

Civil Code section47(b)(4) clearly describes the conditions for application of the

privilege to a recorded lis pendens asfollows: "A recorded lis pendens is not a privileged

publication unless it identifies an action previously filed with a court of competent

jurisdictionwhich affectsthe title or right of possession 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 of possession of real property. We decline to add a third requirement

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, 109Cal.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 of what 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 of another.'" {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 ofAmerica (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 of Allstar 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 Baquiransnever contemplated, 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. BankofAmerica, 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 at pp. 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 a judgment 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

27
Filed 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 certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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 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 and recorded whenhe refinanced his home is void because it was procured by

fraud and forgery. Thus, he asserts the real parties in interest, who were purchasers at a

non-judicial foreclosure sale and theirsuccessors 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 of fraud 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 itstentative ruling,

the trial court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to

support itsruling: "The purchasers title (at a foreclosure sale)... is not encumbered 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 default
here 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 of 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 the hearing and the tentative

ruling became the court's ruling. Petitioner seeks review of this 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 of predatory 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 summary judgment 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 Fifth
Amended Complaint, petitioner is claiming that the trust deed is void because of fraud 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 of the 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 the judgment 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 of his claim under Code of Civil Procedure section 405.32.

DISPOSITION

Let a peremptory writ of mandate 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 clerkof this 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 of chain oftitle evidence contained in the

Supplemental Record for the property 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 a purchase money lien interest thatruns with theland relating back to the original

sales and purchase transaction between RoyRamspeck 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 the paramount interest

reflected inAppellant's purchase money claim was neither forfeited nor extinguished 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 quo relating 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 thattheCourt takesjudicialnotice, andadmits intothe

record, the following pleadings and supporting exhibits: the briefing amendments submitted on January

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 special exceptions and

application forissuance of a writ granting relieffrom alleged fraud on the courton July 8, 2014

are hereby GRANTED in part, 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 of a responding briefis STAYED.

28
IT IS FURTHER ORDERED that in lieu of filing 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 forspecial 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 a motion pursuant to

Tex. Civ. Pare. &Rem. Code Section 27.003 onJuly 17, 2014, and the filing of a timely notice

ofinterlocutory appeal from thetrial court denying dismissal reliefearlier onJuly 9, 2013.

IT IS FURTHER ORDERED thatthe Court finds the following: that Appellant has

established a prima 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 a probability ofsuccess onthemerits, and thatthedenial oftherequested relief

would more likely than not cause injury that cannot beremedied with monetary damages.

IT ISFURTHER ORDERED thatTorralba Properties, LLC, andanyandall of itsjoint

owners, successors and assigns, are hereby joined in the instant interlocutory appeal proceeding

as interested parties.

IT IS FURTHER ORDERED that Appellant 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 the filing of hisreply briefor until

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 or possession of the West Ave. property untilthe conclusion of proceedings.

Date: February 24, 2015

Presiding Judge

29
F
ROWLAND 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 of your personal knowledge.

These questions have the force and effect of being continuous and ongoing in nature. Any

occurence that changes a previously given answer must be corrected and forwarded to the

undersigned Appellant r within a reasonable 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 deed recorded 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 of position is excused on some previously

unstated basis? Ifso, what basis is that?

3. Is it the fault of your clientEdward Bravenec that the Courtand the undersigned were

misinformed aboutthe true stateof affairs concerning the deed recorded 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 of affairs 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 of affairs?

7. Is it yourpractice to wait until known adverse information is disclosed by othersbefore

you decide to make the disclosure yourself?

30
8. What wasthe outcome of themisconduct proceeding in which youwere the respondent

of a petition filed by the Commission for Lawyer Discipline alleging that youengaged in

acts of deceit?

9. DidBravenec know about your background 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. What explanation 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 gave truthful 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 the proceeds of any escrow accounts of which 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 are barred from using subpoenas to compel witness

testimony? If not, please explain how the subpoena youobjected to on or about July 1,

31
2014 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 its possession and control of the

West Ave. property?

23 Didthe net profits exceed the face value of the loanexecuted in Mayof 2005?

24. Howmuch of the surplus value of the transaction didMcKnight andBravenec disburse to

Appellant Rowland Martin?

25. Identify thetitle insurance company and escrow agents for thetransfer in July 2014.

32