Filed 3/26/15 de Langis v. Hermanne CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

DAVID JON DE LANGIS, Plaintiff and Appellant,

v. HERMANNE, LLC, Defendant and Respondent. G048900 (Super. Ct . No. 30-2013-00622505)

O P I N I O N

Appeal from an order and judgment of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Order a nd judgment affirmed. Request for judicial notice denied. Motion for sanctions granted. Kenneth D. Sisco; La Jolla Law Gr oup, Kent L. Sharp and Brien J. O’Meara for Plaintiff and Appellant. Law Offices of Edwin Paul, Edwin Paul and Margie L. Jesswein for Defendant and Respondent.
* * *2 Defendant and respondent Herma nne, LLC (defendant ) obtained a $1.2 million default judgment against plaintiff and appellant David Jon de Langis (plaintiff). After plaintiff filed two different lawsuits an d an unsuccessful motion seeking to set aside the default and default judgment, plaintiff fi led this action for fraud, abuse of process,
and violation of the Racketeer Influenced and Corrupt Or ganizations Act (18 U.S.C. § 1961 et seq.; RICO), 1 claiming defendant improperly obt ained the default judgment. Plaintiff now appeals from a judgment of dismissal entered after the court granted defendant’s special mo tion to strike plaintiff’s complaint under Code of Civil Procedure section 425.16 (secti on 425.16; anti-SLAPP motion ). Plaintiff contends the
court erred because his claims did not arise fro m protected activity and, even if they did, he demonstrated a probability of prevailing on the merits of his case. We conclude the court correctly granted the an ti-SLAPP motion a nd affirm. Defendant filed a motion for sanctions, arguing the appeal had no merit and was filed for purposes of delay. We agree the appeal is frivolous and award sanctions. Defendant also filed a request for j udicial notice in support of the motion for sanctions. We deny the request for judici al notice as it is essentially comprised of documents filed after the notice of appeal . Additionally, one doc ument is a published California Court of Appeal decision that we may consider without the need for judicial notice. The last document is a copy of b illing records submitted by defendant’s counsel
in connection with the motion for sanctions. This docume nt is an exhibit to counsel’s declaration in support of sanctions and does not need to be j udicially noticed.
FACTS AND PROCED URAL HISTORY
In 2006 defendant entered into a construction contract with CBI Technology Group, Inc., (CBI) to act as a ge neral contractor to build two residences (Property) for just under $2.1 million. Plaintiff was an offi cer, director, and shareholder

1 Plaintiff’s separate claim for injunc tive relief is not a cause of action but a remedy. ( Marlin v. Aimco Venezia, LLC (2007) 154 Cal.Ap p.4th 154, 162.)3 of CBI and acted as its responsible mana ging officer. Plaintiff and CBI failed to supervise and pay subcontract ors and to timely complete construction, ultimately abandoning the project. Litigation began when one of the subc ontractors filed a mechanic’s lien and
sued defendant and CBI to fo reclose on the lien. CBI defaulted. Defendant settled the action by paying off the mechanic’s lien, a nd filed a cross-complaint against CBI. CBI and plaintiff then recorded a mechanic’s lien for just over $69,000 on the Property.
Defendant amended the cross-co mplaint, adding plaintiff, and other parties, alleging several causes of action arising out of the failed construction project. Defendant then made multiple futile a ttempts, both personally and by mail,
to serve the summons and cross- complaint on plaintiff at a variety of addresses obtained through the Contractors State License Board, Secretary of State, and county recorder’s
office. Service to one address was returned as undeliverable. One address was a United
Parcel Service store mailbox for a defunct company. Two other addresses were for residences plaintiff did not occupy. At a thir d, gated, residence, defendant unsuccessfully attempted to personally serve plaintiff ten times; five were after a stakeout. Finally,
defendant mailed a notice and ack nowledgement of receipt to that address; they were
never returned. Thereafter, defendant served by plain tiff publication. When plaintiff did not timely answer, defendant filed a request to enter default. The declaration in support checked a box stating defenda nt had not mailed the request to plaintiff because his
address was unknown. Default was entered in March 2010. In July 2010 defendant proved up its default judgmen t in the sum of $1.22 million. Defendant recorded an abstract of judgment in Los Angeles County in September 2010 and in Orange County in January 2011. Plaintiff learned of the default judgme nt in January 2011. In March 2011 he filed a complaint in Orange County to set aside the defau lt and default judgment. The4 complaint alleged, among other things, that th e statement in the request to enter default
that defendant did not know his address was false, and defendant made false statements in its prove-up of the default judgment. Af ter two demurrers were sustained, plaintiff dismissed the complaint without prejudice in Au gust 2011.
Plaintiff filed a motion to set as ide the default and default judgment 2 based
on Code of Civil Procedure s ections 473.5 and 473, subdivisi on (d), claiming he had not
received notice of the action and the defau lt judgment was obtaine d by fraud. In May 2012, 26 months after the defau lt was entered, and 16 months after plaintiff learned of the default judgment, plaintiff’s motion was de nied because it was not made within a
reasonable time. Plaintiff’s September 2012 appeal of th is order was dismissed for failure to designate a record. In June 2012 plaintiff filed a new action in Los Angeles County that was identical to the original, dismissed Orange Co unty suit. Concurrently, he sought an ex parte temporary restraining order (TRO) to stay execution of the defa ult judgment. It was denied. In September the court granted defe ndant’s motion to sell certain of plaintiff’s real property. In February 2013 the Los A ngeles County case was dismissed for failure to prosecute. In January 2013 plaintiff filed the current action, making the same allegations as in the first two, with the additio n of the RICO claim. He alleged service of the complaint on plaintiff and the default were obtained by extrinsic fraud. Specifically,
statements in the declarati on for an order to serve by pu blication were false because defendant knew plaintiff’s addr ess; for the same reason, the declaration in support of the request to enter default was false; the de claration proving up the default judgment
contained false statements a nd defendant did not serve it on plaintiff; defendant did not

2 Neither party indicates the date the mo tion was filed, and we did not find a date in the record. Plaintiff states that in early January 2012 he filed an ex parte application to obtain an early hearing date. The application was denied.5 record the abstract until 179 days after defa ult judgment was entered, making it too late
for constructive notice that would allow him to file a motion to set aside the default and default judgment; and defendant did not timely serve either th e notice of judgment or the abstract of judgment on plaintiff. On January 8, the day before a schedu led sheriff’s sale, pl aintiff’s ex parte application to enjoin that sa le was denied, without prejudice to being brought before the judge who decided the underlying action. Th at same day, plaintiff filed a chapter 11 bankruptcy, triggering the automatic stay. The current case was removed to the bankruptcy court. On defendant’s motion, the bankruptcy was dismissed. The court ruled plaintiff had filed it in bad faith and a state court had alrea dy decided plaintiff’s arguments about the merits of defendant’s default judgment. The day before a reschedul ed date for the sheriff’s sale in May, plaintiff again sought an ex parte TRO to enjoin the sale. The TRO application was based on the same facts and arguments set out in the first two ex parte applications as well as in the motion to set aside the default and default ju dgment. The application was also denied. In granting defendant’s anti-SLAPP motion, the court found defendant’s activity of alleged perjured decl arations and failure to serve the notice of entry of default was protected under section 425.16, subdivisi on (e). It also found plaintiff had not met his burden to show the probab ility of prevailing on the acti on. The litigation privilege (Civ. Code, § 47, subd. (b)) protected the activ ity complained of and further plaintiff had not made a prima facie case for a ny of his causes of action.
DISCUSSION
1. Introduction Section 425.16, subdivision (b)(1) prov ides that a cause of action arising from a constitutionally protected right of free sp eech may be stricken unless the plaintiff establishes the probability he w ill prevail on the claim. The court must engage in a twostep analysis. First, it must determine whether the defendant has met its burden to show6 “‘that the challenged cause of action is one arising from protected activity.’” ( Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If so, the court must consider whether the plaintiff has met his burden to show the likelihood of prev ailing on the claim. ( Ibid .) We review an order granting an anti-SLAPP motion de novo. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) 2. Protected Activity Under section 425.16, subdivision (e) an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . ., [or] (2) any written or or al statement or writing
made in connection with an issue under cons ideration or review by a . . . judicial body . . . .” “‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citations.]” ( Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056; Rusheen .) “[C]ourts have adopted ‘a fairly expansive view of what constitu tes litigation-related activities within the scope of section 425.16.’ [Citation.]” ( Kolar v. Donahue, Mc Intosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) They include “co mmunicative conduct such as the filing, funding, and prosecution of a civil action.” ( Rusheen , supra , 37 Cal.4th at p. 1056.) Although plaintiff labels his causes of action fraud, abuse of process, and a RICO claim, they are all based on the allege d improper service of the complaint, proveup of the default judgment, and delay in r ecording an abstract of judgment in the underlying action. Thus, the gravamen of the action is “misconduct in the underlying litigation. . . . [T]hat is th e essence of the tort of abuse of process. . . .” ( Booker v.
Rountree (2007) 155 Cal.App.4th 13 66, 1370, italics omitted.) An abuse of process claim is subject to an anti-SLAPP motion. ( Ibid .; see also Rusheen , supra , 37 Cal.4th at p. 1056 [cause of action based on acts in litig ation subject to special motion to strike].)7 While acknowledging abuse of proce ss claims generally arise out of protected activity, plaintiff conclusorily stat es that is not the case here because the application to publish the summons and the re quest to enter default contained perjurious
statements. Plaintiff’s failu re to develop this claim w ith reasoned lega l argument and supporting authority fo rfeits the issue. ( Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Even on the merits, how ever, the claim fails. Ju st because conduct is allegedly wrongful does not remove it from the scope of section 425.16. ( Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.) There is a narrow ex ception for illegal conduct but it “applies only if a ‘defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition ac tivity was illegal as a matter of law.’ [Citation.]” ( Ibid .) Defendant does not concede any impropriety. Furthermore, there is no conclusive evidence any of defendant’s acts were illegal as a matter of law. Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 69 6, 705, on which plaintiff relies, is inapt. There, an ex-wife con ceded the police report sh e made about her exhusband was false and illegal. Thus, her activ ity was not conduct in furtherance of her right to free speech. Contrast that case with, for example, Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712, that held the me re claim the defendant committed unlawful acts did not make them illegal as a matter of law and thus they fell within the protection
of the anti-SLAPP statute. Taking a different tack in the repl y brief, plaintiff argues defendant’s alleged wrongdoing is not prot ected because it was not speech or activity but the absence of such, i.e., defendant’s failure to serve the re quest to enter default. This argument fails
for several reasons. To start with, we decline to consider an issue raised for th e first time in the reply brief. ( State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 835- 836.) In addition, the argument is inconsiste nt with facts on which plaintiff relies and8 with other arguments. Plaintiff elsewhere asse rts the gravamen of th e case is “whether a litigant may file perjured documents . . . to obt ain a Default Judgment.” Further, plaintiff alleges, among other things, defendant made a false statem ent in the request to enter default, failed to serve the declaration and exhibits upon which it relied to prove up the default judgment, made misstatements of fact in the declaration, and recorded the abstract of judgment in Orange County 179 days after entry of the default judgment. Finally, plaintiff’s argument is lega lly incorrect. Whether defendant’s alleged wrongdoing is described as taking ac tion or failing to take action, it was all litigation activity. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 90 [anti-SLAPP statute
covers both acts and omissions ].) In short, defendant me t its initial burden and showed the activity and speech about wh ich plaintiff complains is protected by section 425.16. 3. Probability of Prev ailing on the Merits Thus, the burden shifted to plaintiff to show the probability of prevailing on his claims. To satisfy this bur den plaintiff had to both show the legal sufficiency of the complaint and provide evidence to support a prima f acie case capable of supporting judgment in his favor. ( Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 718.) a. Fraud and Abuse of Process Plaintiff cannot prevail on the merits of these causes of action because the alleged wrongful activity is absolutely privileged under Civ il Code section 47, subdivision (b). This litigation privilege ap plies to any communica tion during the course of litigation that is logically related to the action, and bars all in tentional tort claims except malicious prosecution. ( Rusheen , supra , 37 Cal.4th at p. 1057.) Thus it defeats both the fraud and abuse of process causes of action. Plaintiff claims an exception to th e litigation privilege based on extrinsic fraud. But “‘[w]here a civil judgment is pr ocured by extrinsic fraud, the normal remedy is to seek equitable relief from the judgment, not to sue in tort. [Citations.]’ [Citation.]” ( Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26.)9 Further, plaintiff has not shown extrinsi c fraud. To prevail on that claim he would have to prove a meritorious case, a reasonable excuse for not defending the original action, and “‘diligence in seeking to set aside the default once . . . discovered.’ [Citation.]” ( Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Even without addressing the first two elements, there is no evidence supporting the third element - diligence. The default judgment was entered in Ma rch 2010. Plainti ff admits he knew about it in January 2011. He filed a co mplaint to set it asid e in March 2011 but voluntarily dismissed it five m onths later. It was not until so metime in 2012 , at least a year after learning of the defa ult judgment, that he filed a motion to set aside the default and default judgment. This is not sufficient diligence. ( Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1150 [relief denied where th e defendant waited over 20 months]; see also, e.g., Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 508 [delay of nine months not diligent; Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487 [two -month delay insufficient showing of diligence]; Caldwell v. Methodist Hospital (1994) 24 Cal.App.4th 1521, 15 24-1525 [same for three-month delay].)
b. RICO As pleaded, the RICO cause of action is based on alleged mail fraud. But the complaint does not allege any mailing by defendant, as is re quired. (18 U.S.C. §§ 1341, 1961.) In fact, plain tiff complains about ju st the opposite, that defendant failed to mail the request to enter default. In addition, plaintiff did not discu ss RICO in his briefs. He has thus forfeited any claim of error as to this cause of action. ( Raining Data Corp. v.
Barrenechea (2009) 175 Cal.App.4th 1363, 1372 [in anti-SLAPP appeal the plaintiff’s failure to argue probability of prevailing waived issue].)10 4. Motion for Sanctions When we find an appeal to be frivolou s or filed solely to harass or delay, we may award sanctions against the offending party. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a).) We may rely on either or both a subjective and an objective standard. “The subjective standard looks to the motives of the appe aling party and his or her attorney, while the objectiv e standard looks at the me rits of the appeal from a reasonable person’s perspec tive. [Citation.]” ( Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 556.) We determ ine this appeal to be frivolous under both
standards. Looking first at the subjective standard , the history of this case supports a finding this appeal was just another step in a long series taken solely to delay or to harass defendant or both. In a procedural wild goo se chase created by pl aintiff, defendant has had to defend: three different actions, incl uding the current one, all of which are based on the same alleged facts; a bankruptcy; and three separate ex parte TRO applications seeking to restrain defendant’s levy on the default judgment. In addition, plaintiff unsuccessfully moved to set aside the defau lt and default judgment, and then had his appeal dismissed. Plaintiff is not entitle d to that many bites at the same apple. Plaintiff disingenuously argues he is not “directly” trying to reverse the default judgment in the underlying action; he is just trying to have the order granting the
anti-SLAPP motion reversed. According to plaintiff that would not “eliminate the underlying judgment.” Not so. Plaintiff se eks to have the order reversed so he can litigate his complaint, in which he seeks to set aside th e default and default judgment. Plaintiff also incorrectly announces none of the trial courts found any of his actions improper and sanctionable. First, th e record does not re veal defendant ever sought sanctions before. Therefore, no court was ever required to rule on that issue. Second, the bankruptcy court expressly found plaintiff had filed the bankruptcy in bad11 faith. Plaintiff conveniently failed to mention th is in his briefs, a separate violation of the
California Rules of Court. 3 This appeal is also objectively frivol ous. As discussed above, there was no legitimate basis for filing it. Section 425.16 and its derivative case law make clear that the complained of activ ity by defendant was prot ected. And plaintiff’s claim the activity was not protected because illegal is equally frivolous. Plaintiff fa iled to develop the argument, forfeiting the claim. Moreover, case s are equally clear that unless the alleged activity was concededly illegal or wrong as a ma tter of law, it is protected by the statute. A reasonable attorney would have been aw are of these legal principles plus the insufficiency of plainti ff’s claims and declined to file an appeal. Plaintiff seeks to spare us the time to read any discussion in support of the propriety of the appeal, instead referring us to his briefs, claiming he has “entirely legitimate and valid legal argumen ts.” We do not find this argument any more persuasive
than those included in his briefs.
We are aware sanctions should be aw arded only in the most egregious cases. ( In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) But all of the
circumstances convince us this is such a case. There are no unique issues or complicated facts, nor was there an argument that exis ting law should be extended, modified, or

3 Violation of court rules is another grou nd for awarding sanctions. (Cal. Rules of Court, rule 8.276(a)(2), (4).) Fail ure to include all material fa cts in the statement of facts is an unreasonable violation. The bankruptcy court’s ruling is significant. So, too, are the dismissal of plaintiff’s appeal of the deni al of his motion to set aside the default and judgment and the filing and denial of two of his requests for TRO’s to halt execution. Plaintiff did not include any of thes e facts in his statement of facts. Plaintiff also failed to consecutively number the pages from one volume to the next of his appendices, instead starting at page 1 in each, making review of the record overly complicated and confusing. (Cal . Rules of Court, rules 8.144(a)(1)(D), 8.124(d)(1).) Although we do not consider this an inde pendent ground for sanctions, we include it for counsel’s future reference.12 reversed, as might justify filing this appeal. ( Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.Ap p.4th 1414, 1422.) We award sanctions against plainti ff and remand to the trial court to determine the amount. (See Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 461-462.) We decline to award sanctions to this court.
DISPOSITION The order granting the special moti on to strike and the judgment of dismissal are affirmed. The request for j udicial notice is denied. The motion for sanctions is granted as against plaintiff, the am ount to be determined by the trial court. All sanctions are to be paid within 30 days after the order of the superior court fixing the
amount of the award. Defendant is entitle d to attorney fees and costs on appeal.

THOMPSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.