Filed 8/30/22 Baul v. Lecaros CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

AUSTIN BAUL et al.,

Plaintiffs and Appellants,

v.

ADRIANO LECAROS,

Defendant and Respondent.

 B315968

 (Los Angeles County

 Super. Ct.

 No. 21STCV24082)

APPEAL from an order of the Superior Court of 

Los Angeles County, Christopher K. Lui, Judge. Affirmed.

Austin Baul, in pro. per., and Nila A. Jamias, in pro. per., 

for Plaintiffs and Appellants.

Law Offices of Richard Hofman and Richard Hofman for 

Defendant and Respondent.

——————————
2

Austin Baul and Nila A. Jamias (collectively plaintiffs) 

appeal from a trial court order granting defendant Adriano 

Lecaros’s special motion to strike under the anti-SLAPP statute 

(Code Civ. Proc., § 425.16),1 and dismissing two causes of action

in their complaint. We conclude that those causes of action arise 

from protected activity as defined in subdivision (e) of section 

425.16, and that plaintiffs have not demonstrated a likelihood of 

prevailing on the merits of their claims. We therefore affirm the 

trial court order. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Prior litigation and restraining order requests

The parties have been involved in a leadership dispute 

within the Filipino American Community of Los Angeles, Inc. 

(FACLA), a nonprofit organization of which Lecaros, Fernandico 

Gonong, Jr., and Maximo Fortu were former directors or officers.

2

In December 2018, litigation resulted in a trial court order 

installing nonparty Veronico Agatep as FACLA president. 

According to plaintiffs’ complaint, while Gonong appealed that 

decision, he barred Agatep from entering FACLA’s offices. In 

April 2020, another division of this court affirmed the order 

installing Agatep as president. (Caratao v. Gonong (Apr. 2, 2020, 

B294469) [nonpub. opn.].) Plaintiffs have alleged that in May 

2020, Agatep appointed Baul (who was also the former president 

of FACLA) as his assistant and Jamias as office manager. 

1 All further undesignated statutory references are to the 

Code of Civil Procedure.

2 This appeal concerns the motion to strike filed by Lecaros 

alone. The remaining defendants are not parties to this appeal. 
3

On June 8, 2020, Gonong filed requests for civil harassment 

restraining orders protecting himself, Lecaros, and Fortu from 

plaintiffs. The requests alleged that on May 23, 2020, plaintiffs

and others broke into the FACLA offices, stole from the office, 

damaged property, and threatened physical violence. Following a 

June 29 hearing at which Gonong, Lecaros, and plaintiffs 

testified, the trial court denied the requests, finding Gonong had 

not met his burden of proof.

On August 27, 2020, Lecaros filed requests for civil 

harassment restraining orders protecting himself, his adult 

daughter, and his spouse from plaintiffs.

3 The requests alleged 

plaintiffs made repeated threats to cause the Lecaros family

physical harm, to damage their property, and to steal from 

Lecaros’s home and office. The requests further alleged that on 

August 14, plaintiffs broke into FACLA’s offices and destroyed 

and stole property. The petitions also alluded to past instances, 

as early as 2018, as well as additional events in August, during 

which plaintiffs allegedly broke into Lecaros’s office, stole 

property, and defamed Lecaros and others on social media and in 

the community. In September 2020, the trial court denied 

Lecaros’s petitions.

II. The underlying complaint

In June 2021, plaintiffs filed a complaint against Lecaros, 

Gonong, Fortu, and four other individuals, alleging causes of 

action for abuse of process, “lying to the police,” and intentional 

infliction of emotional distress. The complaint alleged that on 

June 8, 2020, Gonong, Lecaros, and Fortu “conspired” and 

3 In their respective requests for restraining orders, Gonong 

and Lecaros each filed one petition per plaintiff.
4

wrongfully used legal process by filing requests for temporary 

restraining orders against plaintiffs. The complaint similarly 

alleged that on August 27, 2020, Lecaros, his adult daughter, and 

his spouse, conspired and wrongfully used legal process by filing 

restraining order requests against plaintiffs and Agatep.4 

Plaintiffs denied the conduct alleged in the June 2020 

restraining order requests, claiming they were at home. They 

further denied breaking into FACLA in August 2020, threatening 

the Lecaros family, or stealing anything. The complaint alleged a 

court order entitled them to enter the FACLA premises as 

officers. According to the complaint, the petitions were 

defendants’ attempts to again alter the leadership structure and 

have plaintiffs barred from FACLA’s premises. The complaint

further alleged Gonong and another codefendant gave a false 

report to police regarding the June and August incidents.

Plaintiffs alleged they were 80 and 75 years old and being 

served with the restraining order petitions caused them anxiety 

and stress that exacerbated their existing health conditions.

III. Lecaros’s special motion to strike

In August 2021, Lecaros filed a special motion to strike the 

complaint, arguing that because the abuse of process and 

intentional infliction of emotional distress claims arose out 

statements and activities occurring in or related to judicial 

proceedings, they were protected activities grounded in his 

exercise of his constitutionally protected rights to petition and of 

free speech. For this reason, and because the litigation privilege 

set forth in Civil Code section 47, subdivision (b) barred claims 

4 Only the requests seeking to restrain plaintiffs are 

included in the record. 
5

arising out of judicial proceedings, those two claims were subject 

to dismissal under the anti-SLAPP statute (Code Civ. Proc., 

§ 425.16). 

Plaintiffs opposed the motion, arguing the leadership 

dispute that was the subject of their claims did not relate to a 

public issue and therefore was not subject to the anti-SLAPP law. 

They also contended their claims had substantive merit and did 

not arise out of privileged communications because they fell 

under a statutory exception for communications to law 

enforcement. 

Plaintiffs did not appear at the September 2021 hearing on 

Lecaros’s motion. The trial court granted the special motion to 

strike and dismissed the abuse of process and intentional 

infliction of emotional distress causes of action as to Lecaros. The

court concluded that filing a lawsuit was a protected activity and 

that an anti-SLAPP movant need not separately demonstrate 

that statements contained in a pleading concerned an issue of 

public importance. Further, plaintiffs could not establish a 

probability of prevailing on the merits on the abuse of process 

and intentional infliction of emotional distress causes of action 

because they were subject to the litigation privilege. The court 

found the exception that plaintiffs invoked did not apply because 

the communications at issue were not directed toward law 

enforcement, but to the court during litigation. 

Plaintiffs timely appealed.5

5 An order denying an anti-SLAPP motion is immediately 

appealable as an exception to the general nonappealability of 

interlocutory orders. (§ 425.16, subd. (i); § 904.1, subd. (a)(13).) 

Although plaintiffs’ notice of appeal indicates they appeal from 
6

DISCUSSION

I. General principles of anti-SLAPP and standard of

review

Under section 425.16, subdivision (b)(1), “[a] cause of action 

against a person arising from any act of that person in 

furtherance of the person’s right of petition or free speech under 

the United States Constitution or the California Constitution in 

connection with a public issue shall be subject to a special motion 

to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will 

prevail on the claim.”

“The anti-SLAPP statute does not insulate defendants from 

any liability for claims arising from the protected rights of 

petition or speech. It only provides a procedure for weeding out, 

at an early stage, meritless claims arising from protected 

activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, italics 

omitted.) 

In evaluating an anti-SLAPP motion, the trial court first 

“determines whether the [moving] defendant has made a 

threshold showing that the challenged . . . action arises from 

protected activity,” that is, activity in furtherance of the rights of 

petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th 

1048, 1056; see generally § 425.16, subd. (e).) If the answer is 

yes, the burden shifts to the plaintiff to demonstrate a probability 

an order dismissing the case after sustaining a demurrer, we 

liberally construe their notice of appeal to encompass the antiSLAPP order. (Cal. Rules of Court, rule 8.100(a)(2); Ellis Law 

Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 

230 Cal.App.4th 244, 251 [notice of appeal was sufficient even 

though wrong box checked].)
7

of prevailing on the merits. (Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811, 819–820.)

On appeal, we review an order granting or denying a 

special motion to strike de novo. (Oasis West Realty, LLC v. 

Goldman, supra, 51 Cal.4th at pp. 819–820.) We consider the 

“pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.” (§ 425.16, 

subd. (b)(2).) We broadly construe the anti-SLAPP statute. (Id., 

subd. (a).) “[W]e neither ‘weigh credibility [nor] compare the 

weight of the evidence.’ ” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 269, fn. 3.)

II. The challenged causes of action arose from protected

activity

Under section 425.16, a cause of action arises from 

protected activity if the conduct of the defendant on which the 

cause of action is premised was in furtherance of the defendant’s 

right of petition or free speech. (City of Cotati v. Cashman (2002) 

29 Cal.4th 69, 78 [“statutory phrase ‘cause of action . . . arising 

from’ means simply that the defendant’s act underlying the 

plaintiff’s cause of action must itself have been an act in 

furtherance of the right of petition or free speech”].) An act in 

furtherance of the right of petition or free speech includes “any 

written or oral statement or writing made before a legislative, 

executive, or judicial proceeding.” (§ 425.16, subd. (e)(1).) It also 

includes “any written or oral statement or writing made in 

connection with an issue under consideration or review by a 

legislative, executive, or judicial body.” (§ 425.16, subd. (e)(2).)

It is well established that filing a lawsuit is an exercise of a 

party’s constitutional right of petition. (Soukup v. Law Offices of 

Herbert Hafif, supra, 39 Cal.4th at p. 291 [the “filing of lawsuits 
8

is an aspect of the First Amendment right of petition”]; Navellier 

v. Sletten (2002) 29 Cal.4th 82, 90 [the “constitutional right of 

petition encompasses ‘ “ ‘the basic act of filing litigation’ ” ’ ”].) 

The same is true of a petition seeking a restraining order. (S.A. 

v. Maiden (2014) 229 Cal.App.4th 27, 35.)

Here, the entire basis for the abuse of process and 

intentional infliction of emotional distress claims was the 

allegation that Lecaros filed three restraining order requests 

containing false information. Because the claims were 

fundamentally based upon the exercise of the right to petition, 

they arose from protected activities. (Martinez v. Metabolife 

Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)

Plaintiffs nonetheless contend that the constitutional right 

to petition does not protect four petitions asserting the same 

allegations. In other words, plaintiffs acknowledge that one such 

request might constitute a valid assertion of the right to petition, 

but argue that several requests with identical allegations are not. 

We reject plaintiffs’ argument as contrary to the record. Lecaros 

was only alleged to have simultaneously filed three petitions of 

similar substance, differing only insofar as they sought relief 

against separate individuals. In other words, the allegations 

related to Lecaros in essence amounted to a single instance of 

petitioning, which, as plaintiffs agree, is protected activity under 

the anti-SLAPP law.

6 

6 To the extent plaintiffs’ complaint provided any basis to 

argue Lecaros engaged in separate or sequential acts of 

petitioning, we further note they have failed to provide any legal 

authority for the proposition that such conduct is not protected 

activity, and we are aware of none. The argument is forfeited. 
9

Lecaros met his burden of showing that the two causes of 

action that were the subject of his anti-SLAPP petition arose 

from protected activity under section 425.16, subdivision (e).

III. Plaintiffs have not demonstrated a probability of

prevailing on the merits

Plaintiffs argue they established a probability of prevailing 

on their abuse of process and intentional infliction of emotional 

distress claims because the claims had substantive merit, and 

therefore fall outside the ambit of the litigation privilege. They 

also contend the statements within Lecaros’s requests were not 

privileged because they were neither related to the requests, nor 

served the purpose of achieving the objectives of the requests. 

Their arguments are unavailing.

The litigation privilege affords litigants the “utmost 

freedom of access to the courts without fear of being harassed 

subsequently by derivative tort actions.” (Silberg v. Anderson

(1990) 50 Cal.3d 205, 213.) It is applicable to any litigant’s 

communication required or permitted by law during a judicial

proceeding to achieve the objects of the litigation and with some 

relation to the action. (Id. at p. 212.) “ ‘[C]ommunications with 

“some relation” to judicial proceedings’ are ‘absolutely immune 

from tort liability’ by the litigation privilege.” (Rusheen v. Cohen, 

supra, 37 Cal.4th at p. 1057.) The privilege applies to all tort 

causes of action except malicious prosecution. (Hagberg v. 

California Federal Bank (2004) 32 Cal.4th 350, 360.)

(Salehi v. Surfside III Condominium Owners Assn. (2011) 200 

Cal.App.4th 1146, 1161–1162 [failure to support theories for 

reversal results in abandonment of appellant’s claims].)
10

Here, the abuse of process and intentional infliction of 

emotional distress causes of action that were the subject of 

Lecaros’s motion are plainly subject to the litigation privilege. 

(Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 125.) 

Plaintiffs devote much of their appellate briefing to arguing the 

substantive merit of these causes of action, but because the

privilege has “ ‘absolute’ ” applicability to the torts at issue, the 

privilege applies regardless of the merit, if any, of the allegations.

(Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360.) 

Tort liability is barred for the conduct which forms the basis of 

plaintiffs’ claims against Lecaros.

Plaintiffs further rely on Kinnamon v. Staitman & Snyder

(1977) 66 Cal.App.3d 893, 897 and Earp v. Nobmann (1981) 122 

Cal.App.3d 270, 284, to argue the litigation privilege does not 

apply because Lecaros’s statements were not reasonably related 

to the litigation and were made only to inflict emotional distress. 

However, our Supreme Court has explicitly rejected the 

reasoning on which plaintiffs purport to rely and has disapproved 

both cases. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) 

“[A]pplication of the privilege does not depend on the publisher’s 

‘motives, morals, ethics or intent,’ ” and it applies to 

communications so long as they have “ ‘some relation’ to a judicial 

proceeding.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 

913.) These principles squarely apply to plaintiffs’ abuse of 

process and intentional infliction of emotional distress causes of 

action against Lecaros. 

Plaintiffs failed to meet their burden of showing a 

probability of prevailing on the challenged claims. We find no 

error in the trial court order granting Lecaros’s special motion to 

strike those causes of action.
11

IV. Plaintiffs’ remaining arguments are forfeited

Plaintiffs further contend that the trial court’s decision 

violated their rights under the California Constitution, article I, 

section 1, and that the restraining orders violated the double 

jeopardy clause of the Fifth Amendment to the United States 

Constitution. Because these arguments were not raised before 

the trial court, we decline to address them in the first instance. 

(In re S.B. (2004) 32 Cal.4th 1287, 1293 [parties forfeit 

arguments not raised in trial court]; People v. Simon (2001) 25 

Cal.4th 1082, 1103 [principle that failure to timely assert 

constitutional right amounts to forfeiture applies equally to civil 

cases].)

V. Appellate sanctions and attorney fees

Lecaros requests that we award him attorney fees as a 

sanction against plaintiffs for filing a frivolous appeal, but he has 

failed to file a separate sanctions motion. (Cal. Rules of Court, 

rule 8.276(b)(1).) Sanctions may not be sought in the 

respondent’s brief and the request is denied. (Cowan v. 

Krayzman (2011) 196 Cal.App.4th 907, 919.) However, as the 

prevailing defendant, Lecaros is entitled to attorney fees 

pursuant to section 425.16, subdivision (c)(1). (Wilkerson v. 

Sullivan (2002) 99 Cal.App.4th 443, 448 [defendant entitled to 

attorney fees and costs incurred in plaintiff’s appeal as prevailing 

defendant on anti-SLAPP motion]; Church of Scientology v. 

Wollersheim (1996) 42 Cal.App.4th 628, 659.)
12

DISPOSITION

The trial court’s order granting Adriano Lecaros’s special 

motion to strike pursuant to Code of Civil Procedure section 

425.16 is affirmed. Lecaros is to recover his attorney fees and 

costs on appeal, in amounts to be determined by the trial court.

NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

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

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

Constitution.