Filed 10/29/20 Barrett Daffin Frappier Treder & Weiss, LLP v. Garau CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

BARRETT DAFFIN FRAPPIER 

TREDER & WEISS, LLP,

Plaintiff and Respondent,

v.

CARLOS GARAU,

Defendant and Appellant;

TORRANCE UNIFIED SCHOOL 

DISTRICT,

Defendant and Respondent.

B297827

(Los Angeles County

Super. Ct. No. YC072760)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Ramona G. See, Judge. Affirmed.

Olga H. Garau for Defendant and Appellant Carlos Garau.

Law Offices of Robert E. Weiss and John A. Perry for Plaintiff 

and Respondent Barrett Daffin Frappier Treder & Weiss, LLP. 

Burke, Williams & Sorenson, Joseph P. Buchman and Brian 

I. Hamblet for Defendant and Respondent Torrance Unified School 

District.
2

Plaintiff and respondent Barrett Daffin Frappier Treder & 

Weiss, LLP (Barrett), acting as a neutral foreclosure trustee, 

brought a complaint in interpleader to allow the trial court to 

determine the proper disposition of $150,209.15 in surplus proceeds 

from the sale of real property owned by defendant and appellant 

Carlos Garau (Garau), and his wife, Olga Garau. The surplus 

proceeds were subject to three competing claims: two claims 

were asserted by Torrance Unified School District (TUSD) and 

Investment Retrievers, Inc. (Investment Retrievers), creditors 

holding judgments against Garau from unrelated litigation. The 

third claim was made by the Garaus themselves. In their claim, 

the Garaus contended the surplus proceeds were the result of a 

wrongful foreclosure by a lender, which was the same position the 

Garaus unsuccessfully advanced in two previous cases, one in state 

court and one in federal court. In both cases, the courts entered 

judgment in favor of the lenders and other defendants. The state 

court judgment was subsequently affirmed by this court. (Garau v. 

Nationstar Mortgage, LLC (Dec. 12, 2018, B281879) [nonpub. opn.].)

Garau, represented by Olga Garau, an attorney, responded 

by filing a special motion to strike the complaint in interpleader 

under Code of Civil Procedure section 425.16,

1 commonly referred 

to as the anti-SLAPP statute (strategic lawsuit against public 

participation). Garau argued the interpleader action arose from 

his constitutionally-protected rights of petition and free speech—

ostensibly, the two wrongful foreclosure actions and his written 

claim for the surplus funds—and contended Barrett had no 

probability of prevailing on the complaint.

1 Unless otherwise specified, further statutory references are 

to the Code of Civil Procedure.
3

The trial court denied the anti-SLAPP motion on the ground 

Garau failed to meet his threshold burden of establishing the 

complaint in interpleader arose from protected conduct. Instead, 

the existence of competing claims for the surplus funds triggered 

Barrett’s statutory right to interplead those funds with the trial 

court for a judicial determination as to the appropriate distribution. 

We conclude that the trial court correctly found the claims made by 

Garau’s judgment creditors and the Garaus, themselves, were not 

constitutionally protected activity under the anti-SLAPP statute. 

Accordingly, the judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND2

Garau and his wife, Olga Garau, purchased real property 

(the property) on Walnut Street in Torrance, California in 1989. 

In June 2007, they borrowed $432,250 from NBGI, Inc. (NBGI), 

secured by the property. They signed a 30-year promissory note, 

as well as a deed of trust, identifying NBGI as the lender, and 

Mortgage Electronic Registration Systems, Inc. (MERS) as a 

nominee for the lender and the lender’s successors and assigns, 

and as the beneficiary under the deed of trust. The deed of trust 

included a power of sale in the event of the borrowers’ default.

Countrywide Home Loans, Inc. was the original loan servicer 

until it was acquired by Bank of America in July 2009. In 

September 2013, servicing of the loan was transferred to Nationstar 

Mortgage, LLC (Nationstar). In September 2015, Nationstar 

2 In addition to the record before us, on this court’s own 

motion we take judicial notice of certain limited background facts 

from the December 12, 2018 opinion by Division Three of this court. 

(Garau v. Nationstar Mortgage, LLC, supra, B281879.) (See Evid. 

Code, § 452, subd. (d).)
4

recorded an assignment of deed of trust, indicating that MERS, 

as nominee for NBGI, had assigned the Garaus’ deed of trust to 

HSBC Bank USA (HSBC). Two months later, HSBC recorded 

a substitution of trustee, naming Barrett as successor trustee.

On November 17, 2015, Barrett recorded a notice of default 

and election to sell under the deed of trust, stating that the Garaus 

were $18,761 behind in their mortgage payments. On February 16, 

2016, Barrett recorded notice of a trustee’s sale to be conducted on 

March 23, 2016.

Two days before the scheduled sale, the Garaus filed a 

verified petition in the Los Angeles County Superior Court against 

Nationstar, HSBC, and Barrett, seeking a writ of mandate (§ 1085), 

writ of prohibition (§ 1102), and declaratory relief (§ 1060). Their 

pleading sought to have the foreclosure sale canceled or stayed until

the rights and duties of the parties could be finally adjudicated, 

to prohibit the defendants from proceeding with a nonjudicial 

foreclosure, and to obtain a declaration with respect to the rights 

of the parties in connection with the imminent foreclosure sale. The 

Garaus alleged, inter alia: The reassignment of their note to HSBC 

was void; MERS was not authorized to do business in California; 

and the corporate assignment of the deed of trust, the substitution 

of trustee, the notice of default, and the notice of trustee’s sale, were 

defective and had been wrongfully recorded.

After Barrett unilaterally rescinded the notice of trustee’s 

sale, the trial court sustained demurrers to the writ of mandate 

and writ of prohibition causes of action without leave to amend, 

and overruled the demurrer to the declaratory relief claim. The 

trial court ruled the Garaus were not entitled to a writ of mandate 

under section 1085 because they were not seeking to compel the 

defendants to perform any statutory or constitutional duty, and 
5

they were not entitled to a writ of prohibition under section 1102, 

which lies to restrain the exercise of a judicial function, because a 

nonjudicial foreclosure is not a judicial function.

The defendants filed motions for judgment on the pleadings, 

arguing the sole remaining cause of action for declaratory relief 

should be dismissed because there was no pending foreclosure 

and thus no justiciable controversy. Further, even assuming 

the existence of a judicial controversy, the Garaus lacked standing 

to challenge the assignments of the deed of trust, could not show 

they were prejudiced by a procedural irregularity in the foreclosure 

process because they were in default on their loan, and had failed 

to comply with the requirement that they tender payment.

The trial court granted the defense motions for judgment 

on the pleadings and, on February 17, 2017, entered a judgment 

of dismissal in favor of Nationstar, HSBC, and Barrett. Our 

colleagues in Division Three affirmed the judgment on December 

12, 2018, concluding the Garaus could not maintain a preemptive

action for declaratory relief challenging the right, power, and 

authority of a foreclosing beneficiary or beneficiary’s agent to 

initiate and pursue foreclosure.

Meanwhile, on September 25, 2017, shortly before the 

scheduled foreclosure sale, the Garaus filed a complaint in federal 

court alleging violations of the Truth in Lending Act (15 U.S.C. 

§ 1601 et seq.) and asserting claims for fraud, unfair business 

practices, and financial abuse of disabled persons against

Nationstar, HSBC, and Barrett (the federal action). According 

to Garau, the federal action asserted his position that the lender’s 

title claim was void and could not form the basis of nonjudicial 

foreclosure proceedings, and also that the substitution of Barrett as 

trustee was unlawful as it was allegedly made without the Garaus’ 
6

knowledge. The district court granted a motion for judgment on the 

pleadings filed by Barrett and dismissed the case on April 13, 2018. 

The Garaus did not appeal the dismissal.

Barrett, acting as the duly substituted foreclosure trustee, 

moved the foreclosure through a trustee’s sale on September 29, 

2017. At the sale, the winning bid by a third party at public auction 

exceeded the debt owed to the lender by $150,209.15.3 Barrett gave 

notice of the surplus funds to all lienholders of record, including the 

Garaus.

Defendant and respondent TUSD asserted two separate 

claims to the excess proceeds in the amounts of $12,606.98 and 

$1,093,074.58, pursuant to judgments entered in its favor and 

against Garau in a prior unrelated civil matter. Defendant 

Investment Retrievers asserted a claim in the amount of $19,137.09 

arising from an abstract of judgment recorded in 2013.

Garau and Olga Garau, in turn, made a lengthy written 

demand to Barrett, refusing to accept the results of the completed 

foreclosure sale, disputing the validity of the junior liens and 

associated lienholder claims, and instructing Barrett not to disburse 

the surplus funds. The Garaus asserted three “ ‘junior liens or 

encumbrances’ ” recorded against the property. The first was 

a declaration of homestead recorded in 2007 and purportedly 

3 Garau asks this court to take judicial notice of the trustee’s 

deed upon sale resulting from the foreclosure sale. He also seeks 

judicial notice of his complaint against TUSD. (Garau v. Torrance 

Unified School District (Super. Ct. L.A. County, No. BC313368).) 

We decline to do so as neither document is relevant to any 

dispositive issue on appeal. (Doe v. City of Los Angeles (2007) 

42 Cal.4th 531, 544, fn. 4; Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1089, fn. 4.)
7

“securing statutory rights . . . up to the maximum statutory amount 

under [section] 714.730[, subdivision] (a)(3) for which [the Garaus] 

may qualify at the time of final adjudication on the merits.” The 

Garaus also identified a notice of pendency of action they recorded 

in 2016 in connection with the state action by the Garaus against 

Nationstar and other entities. The third encumbrance was a notice 

of lis pendens recorded by the Garaus on the same date the federal 

action was filed.

In the face of competing claims to the surplus funds, Barrett 

commenced an interpleader action and deposited the funds with 

the trial court. Barrett disavowed any interest in the surplus 

funds and alleged it was “unable to determine the priority of 

[the competing] claims or to safely distribute the remaining 

sale proceeds without risk of liability to one or more of the other 

claimants.”

In addition to a demurrer and a motion to strike the 

complaint in interpleader, Garau, represented by Olga Garau, 

brought a special motion to strike pursuant to section 425.16 (antiSLAPP motion). Garau asserted the complaint in interpleader was 

brought primarily to chill his valid exercise of his constitutional 

rights of freedom of speech and petition for the redress of 

grievances. Specifically, Garau contended the interpleader

action violated the couple’s “litigation against both TUSD’s and 

[Investment Receiver’s] claims” and the “legal nonexistence of [the] 

‘surplus funds’ and Barrett’s right to interplead them.” (Italics 

omitted.) Garau claimed the surplus funds were the result of a 

“wrongful foreclosure that Barrett had no legal right to conduct,” 

which assertion was the subject of both the state action and 

the federal action. (Italics omitted.) In short, Garau argued the 

interpleader action lacked merit, and was a SLAPP or “strategic 
8

lawsuit against public participation,” because the foreclosure 

proceedings from which the surplus funds were derived was 

wrongful in the first instance.

The court denied the anti-SLAPP motion, finding Garau 

failed to meet his burden to establish the complaint in interpleader 

arose from an act in furtherance of his right to petition or free 

speech and, accordingly, the burden never shifted to Barrett 

to demonstrate a probability of prevailing on the merits. In 

particular, the trial court found the complaint in interpleader 

did not affect Garau’s ability to seek redress for his claim that the 

foreclosure was wrongful and, in fact, Garau “pursued numerous 

civil actions to redress those grievances in both [s]tate and [f]ederal 

[c]ourt.” Having found Garau could not meet his threshold burden, 

the trial court found the burden of proof did not shift to Barrett to

establish a probability of prevailing on its complaint. 

Garau timely appealed the trial court’s order.

DISCUSSION

A. Relevant law governing anti-SLAPP motions

Section 425.16 permits a defendant to file a special motion 

to strike [i.e., anti-SLAPP motion] when a plaintiff brings a claim 

against the defendant “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.” (§ 425.16, subd. (b)(1).)

“Resolution of an anti-SLAPP motion involves two steps. 

First, the defendant must establish that the challenged claim 

arises from activity protected by section 425.16. [Citation.] If the 

defendant makes the required showing, the burden shifts to the 
9

plaintiff to demonstrate the merit of the claim by establishing a 

probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)

“ ‘Only a cause of action that satisfies both prongs of the 

anti-SLAPP statute—i.e., that arises from protected speech or 

petitioning and lacks even minimal merit—is a SLAPP, subject 

to being stricken under the statute.’ ” (Soukup v. Law Offices of 

Herbert Hafif (2006) 39 Cal.4th 260, 278–279.) If the defendant 

fails to meet the threshold showing that the plaintiff’s cause of 

action is one arising from protected activity under section 425.16, 

subdivision (e), the court must deny his anti-SLAPP motion. 

(Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

An appellate court reviews de novo the grant or denial of an 

anti-SLAPP motion. (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1067.) We do not weigh the 

evidence; rather, we accept as true evidence favorable to Barrett, 

and evaluate evidence favorable to Garau, to determine whether 

as a matter of law, it defeats Barrett’s evidence. 4 (Soukup v. 

Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3.)

4 Barrett contends Garau’s failure to designate the transcript 

from the anti-SLAPP hearing warrants affirmance of the order 

below. California Rules of Court, rule 8.120(b) requires a reporter’s 

transcript on appeal only if “an appellant intends to raise any issue 

that requires consideration of the oral proceedings in the superior 

court.” California Rules of Court, rule 8.130(a)(4) provides 

that an appellant may “elect[ ] to proceed without a reporter’s 

transcript.” A record of oral argument is not necessary where, 

as here, our review is de novo, none of the parties relies upon the 

oral proceedings before the trial court, and the appellate record 

includes the trial court’s written order and all the evidentiary 

materials germane to the anti-SLAPP motion. (See People ex rel.

Harris & Becerra v. Shine (2017) 16 Cal.App.5th 524, 533 [no 
10

B. The Complaint in Interpleader Does Not Arise 

from Protected Activity

“In the anti-SLAPP context, the critical point is whether the 

plaintiff’s cause of action itself was based on an act in furtherance 

of the defendant’s right of petition or free speech.” (City of 

Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics omitted.) The 

anti-SLAPP’s statute focuses not on the form of a cause of action, 

but on the defendant’s underlying activity that gives rise to the 

asserted liability and whether that activity constitutes protected 

speech or petitioning. (Navellier v. Sletten, supra, 29 Cal.4th at 

pp. 92–93.)

“ ‘Interpleader is an equitable proceeding by which an obligor 

who is a mere stakeholder may compel conflicting claimants to 

money or property to interplead and litigate the claims among 

themselves instead of separately against the obligor . . . .’ 

[Citation.]” (Southern California Gas Co. v. Flannery (2014) 

232 Cal.App.4th 477, 486.) “ ‘The true test of suitability for 

interpleader is the stakeholder’s disavowal of interest in the 

property sought to be interpleaded, coupled with the perceived 

ability of the court to resolve the entire controversy as to 

entitlement to that property without need for the stakeholder to 

be a party to the suit. “ ‘[I]f the relations of the parties are such 

that the court’s decision would determine the responsibility of the 

[interpleader plaintiff], he is for the purposes and within the scope 

of the code section authorizing interpleader a mere stake-holder.’ ” 

[Citations.]’ [Citation.]” (Id. at pp. 486–487.)

reporter’s transcript of motion hearing was necessary on appeal 

where the “arguments on appeal do not require consideration of 

colloquy during hearing on the motion”].)
11

It appears that Garau asserts the complaint in interpleader 

was not merely an attempt to compel him and the other claimants 

to litigate their respective rights to the surplus foreclosure funds 

between themselves, but was instead a disguised attempt to further

wrongful conduct by distributing funds from a foreclosure he 

contends should never have occurred. Garau argues the complaint 

in interpleader arose from a wide variety of conduct, including 

his “lawsuits and appeals against TUSD and Barrett,” his

recording of a homestead exemption, his recording of notices 

of lis pendens related to the state action and the federal action, 

and his December 16, 2017 response to Barrett’s notice of 

surplus foreclosure proceeds. In other words, Garau believes 

the interpleader action was a response to all of the prior litigation 

matters—those that gave rise to the judgments in favor of TUSD 

and Investment Retrievers, as well as the state and federal actions 

the Garaus took to attempt to stop the foreclosure. The trial court 

rejected these arguments, finding instead that the interpleader 

action arose from the competing claims to the surplus funds 

asserted by TUSD, Investment Retrievers, and the Garaus 

themselves. We agree with the trial court’s analysis.

Barrett indisputably received three claims to the surplus 

funds: one from TUSD and one from Investment Retrievers based 

on their separate judgments against Garau, and a third from the

Garaus. In their claim, the Garaus asserted Barrett was precluded 

from disbursing the funds because “litigation is pending disputing 

the validity of the instruments upon which the wrongful foreclosure 

of the property is based,” Garau was entitled to all of the surplus 

funds as compensation for “damages,” and Olga Garau’s community 

property share in the surplus funds could not be used to satisfy 

Garau’s obligations.
12

Section 386, subdivision (b) permits “[a]ny person, firm, 

corporation, association or other entity against whom double 

or multiple claims are made, or may be made, by two or more 

persons which are such that they may give rise to double or 

multiple liability, [to] bring an action against the claimants 

to compel them to interplead and litigate their several claims.” 

Barrett’s interpleader claim was thus simply a procedural 

mechanism for placing in one action competing claims to a 

fund it was holding and in which Barrett itself had no claim.

Put differently, receipt of claims by TUSD, Investment 

Receivers, and the Garaus was, in and of itself, sufficient to trigger 

Barrett’s statutory right to interpleader. Barrett owed no duty 

to attempt to resolve the dispute between the warring claimants. 

(See Hood v. Gonzales (2019) 43 Cal.App.5th 57, 76.) Thus, it was 

the existence of these competing claims, and not the foreclosure 

proceedings that generated the surplus funds, that gave rise to 

the complaint in interpleader.5

Our decision that the complaint in interpleader was not 

brought to chill Garau’s constitutional rights is bolstered by the

inescapable fact the state action and the federal action, both of

which pursued the same “wrongful foreclosure” theme woven 

throughout Garau’s anti-SLAPP motion, were both fully litigated 

to judgments adverse to the Garaus. On that ground alone, the 

complaint in interpleader did not arise from acts in furtherance of 

5 Notably, even absent the Garaus’ claim, Barrett 

nonetheless would have been compelled to file a complaint in 

interpleader when presented with the competing claims by TUSD 

and Investment Retrievers. (§ 386, subd. (b).) 
13

Garau’s right of petition or free speech. (Briggs v. Eden Council 

for Hope & Opportunity (1999) 19 Cal.4th 1106.)

Accordingly, we conclude Garau has failed to make the 

necessary prima facie showing that his activity came within the 

protection of the anti-SLAPP statute. Having so concluded, it is 

unnecessary to determine whether Barrett established the probable 

validity of its interpleader action.

DISPOSITION

The order denying Garau’s anti-SLAPP motion is affirmed. 

Barrett is to recover its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.