Filed 3/1/22 SJO Investments v. Riedel CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SJO INVESTMENTS, LLC, 

Plaintiff, Cross-defendant and 

Appellant,

v.

MICHAEL WAYNE RIEDEL et al.,

Defendants, Crosscomplainants and Respondents.

 B311943

 (Los Angeles County

 Super. Ct. No. YC073077)

APPEAL from an order of the Superior Court of 

Los Angeles County. Elden S. Fox, Judge. Affirmed.

The Enochs Law Group, Jon Alan Enochs and Jeffrey D. 

Poindexter for Plaintiff, Cross-defendant, and Appellant.

Van Antwerp Law Firm and L. Walker Van Antwerp III for 

Defendants, Cross-complainants, and Respondents.

______________________________
2

Plaintiff, cross-defendant, and appellant SJO Investments, 

LLC, (SJO) challenges the trial court order denying its motion to 

strike portions of the first amended cross-complaint (FACC) filed 

against it by defendants, cross-complainants, and respondents 

Michael Wayne Riedel and Cheryl Jean Riedel1 (the Riedels) 

pursuant to Code of Civil Procedure section 425.16,2 California’s 

anti-SLAPP statute.3 Because the challenged causes of action do 

not fall within the scope of the anti-SLAPP statute, we affirm the 

trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

According to the FACC, the Riedels owned certain real 

property in Los Angeles. At some point, they received a post card 

from SJO indicating that it “had all the resources to make the 

best offer in town. Cheryl contacted them to make an 

appointment for a meeting.”

On or about July 27, 2018, an SJO agent went to the 

Riedels’ property “to give them a bid on their property.” He 

1

Because respondents share the same last name, for ease we 

refer to them individually by their first names. No disrespect is 

intended.

2

All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.

3

SLAPP is an acronym for strategic lawsuit against public 

participation. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 

809, 813, overruled in part on other grounds in Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, 

fn. 5.)
3

presented her with a contract for the sale and purchase of real 

estate (the contract). The contract provides, in part, that it would 

“become a binding contract when accepted by the [Riedels] and 

signed by both” SJO and the Riedels. It further provides that

SJO would “place in escrow an earnest money deposit.” Finally, 

the contract provides that time is of the essence.

Cheryl signed the contract, even though she was repeatedly

told that she was only signing a bid agreement. The SJO agent 

assured her that the contract was not enforceable as “a binding 

contractual agreement until the opening of the escrow.”

Later, SJO’s agent met with Michael, inducing him “into 

signing all the documents with the terms that [SJO] preferred 

without any question.”

SJO never provided escrow instructions to the Riedels, and 

it never deposited any monies into escrow.

The Complaint

When the Riedels did not go through with the sale of their 

property, SJO sued the Riedels for specific performance and filed 

and recorded a lis pendens on the property.

The FACC

A year after filing their answer to the complaint, the 

Riedels were granted leave to file a cross-complaint against SJO. 

On November 25, 2020, they filed their FACC, the operative 

pleading.

The FACC alleges nine causes of action: Intentional 

misrepresentation, negligent misrepresentation, concealment, 

financial elder abuse, conversion, intentional infliction of 

emotional distress, negligent infliction of emotional distress, 

unjust enrichment, and promissory estoppel. As is relevant to 

the issues raised in this appeal, the first three causes of action 
4

stem from the factual allegations set forth above, namely SJO 

knew that Cheryl took the meeting with SJO so that the Riedels 

only could receive a bid on their property. But its agent 

defrauded the Riedels by misrepresenting that the document they 

were signing was an unenforceable bid, not an agreement for 

sale. They detrimentally relied upon this representation by 

signing what turned out to be a contract to sell their property. 

And, they have suffered damages as a result of SJO’s fraud, 

including “harm and suffering,” “unnecessary legal fees, and they 

have been deprived from their rights of marketing and selling 

their property when [SJO] filed lis pendens against their 

property since 2018, which caused tremendous hardship on 

them.” The prayer for relief seeks, inter alia, compensatory 

damages, general damages, and punitive damages.

SJO’s Motion to Strike

In response to the FACC, SJO filed an anti-SLAPP motion, 

challenging the first three causes of action pled in the FACC: 

intentional misrepresentation, negligent misrepresentation, and 

concealment. It argued that the challenged causes of action fail 

because they are based solely upon the filing and recordation of 

the lis pendens, both of which fall squarely within the scope of 

section 425.16. Moreover, because the fraud claims were based 

solely upon privileged activity under Civil Code section 47, 

subdivision (b), the Riedels could not show a probability of 

prevailing on their claims.

The Riedels’ Opposition

The Riedels opposed the motion, contending that their 

claims were not based upon the filing of the lis pendens. Rather,

“the true nature of [their] grievance lies in the intentional 

misrepresentations and fraudulent actions by the representative 
5

of SJO. The lis pendens [was] merely the vehicle from which the 

fraud was exposed.” Their alleged “hardships and monetary loss 

[were] due to the negligent misrepresentations by the 

representative of SJO, and the willful concealment of key parts of 

the [contractual] provisions at issue. If the representative of SJO 

had not misled [the Riedels] and had upheld the contractual 

specification agreed upon by all the parties, there would be no 

fraud.”

Moreover, as demonstrated by the statements made in 

Cheryl and Michael’s declarations, supporting the allegations set 

forth in the FACC, there was ample evidence to demonstrate a 

probability of prevailing on these three causes of action.

Trial Court Order

After summarizing the parties’ arguments, the allegations 

of the FACC, and relevant law, the trial court found “that the 

fraud causes of action do not arise from the recording of the 

lis pendens. Rather they arise from SJO’s purported 

misrepresentations and fraudulent actions, and thus do not fall 

under any of the categories under CCP §425.16(e). Further, [the 

Riedels] have alleged other damages.”

Because SJO did not meet its burden of establishing that 

the Riedels’ claims fell within the scope of the anti-SLAPP 

statute, the trial court declined to address whether they 

demonstrated a probability of prevailing on their claims.

Appeal

SJO’s timely appeal ensued.

DISCUSSION

I. Standard of review

“We review the trial court’s rulings on a SLAPP motion 

independently under a de novo standard of review. [Citation.]” 
6

(Kajima Engineering & Construction, Inc. v. City of Los Angeles

(2002) 95 Cal.App.4th 921, 929.)

II. The anti-SLAPP statute

“A SLAPP is a civil lawsuit that is aimed at preventing 

citizens from exercising their political rights or punishing those 

who have done so.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 

49 Cal.4th 12, 21.) “In 1992, out of concern over a ‘disturbing 

increase’ in these types of lawsuits, the Legislature enacted 

section 425.16, the anti-SLAPP statute.” (Ibid.; see § 425.16, 

subd. (a).) Section 425.16, subdivision (b)(1), provides: “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.” An act “in furtherance of” the right to 

petition includes “any written or oral statement or writing made 

before a . . . judicial proceeding”; “any written or oral statement 

or writing made in connection with an issue under consideration 

or review by a . . . judicial body . . . ”; and any “conduct in 

furtherance of the exercise of the constitutional right of 

petition . . . .” (§ 425.16, subd. (e)(1), (2), (4).) The anti-SLAPP 

statute applies to cross-complaints as well as to complaints. 

(§ 425.16, subd. (h); Jarrow Formulas, Inc. v. LaMarche (2003) 31 

Cal.4th 728, 735, fn. 2.)

The statute “posits . . . a two-step process for determining 

whether an action is a SLAPP.” (Navellier v. Sletten (2002) 29 

Cal.4th 82, 88.) First, the defendant bringing the special motion 

to strike must make a prima facie showing that the anti-SLAPP 
7

statute applies to the claims that are the subject of that motion. 

(Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819.) In 

other words, the moving defendant must make a threshold 

showing that the challenged causes of action arise from protected 

activity, that is, by demonstrating that the acts underlying the 

plaintiff’s complaint fit one of the categories spelled out in section 

425.16, subdivision (e). (Navellier v. Sletten, supra, at p. 88.) “To 

determine whether defendant has met its burden we must look at 

the ‘gravamen of the lawsuit.’” (Rivera v. First DataBank, Inc.

(2010) 187 Cal.App.4th 709, 715.) “[I]t is the principal thrust or 

gravamen of the plaintiff’s cause of action that determines 

whether the anti-SLAPP statute applies [citation], and when the 

allegations referring to arguably protected activity are only 

incidental to a cause of action based essentially on nonprotected 

activity, collateral allusions to protected activity should not 

subject the cause of action to the anti-SLAPP statute.” (Martinez 

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

Only once a moving defendant has met its burden will the 

motion be granted (and the claims stricken) unless the court 

determines that the plaintiff has established a probability of 

prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. 

Superior Court (2000) 78 Cal.App.4th 562, 567–568.)

In order to establish a probability of prevailing, a plaintiff 

must substantiate each element of the alleged cause of action 

through competent, admissible evidence. (DuPont Merck 

Pharmaceutical Co. v. Superior Court, supra, 78 Cal.App.4th at 

p. 568; see also Navellier v. Sletten, supra, 29 Cal.4th at pp. 88–

89 [reiterating that “‘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 if 
8

the evidence submitted by the plaintiff is credited”’”].) “This 

requirement has been interpreted to mean that (1) when the trial 

court examines the plaintiff’s affidavits filed in support of the 

plaintiff’s second step burden, the court must consider whether 

the plaintiff has presented sufficient evidence to establish a 

prima facie case on his causes of action, and (2) when the trial 

court considers the defendant’s opposing affidavits, the court 

cannot weigh them against the plaintiff’s affidavits, but must 

only decide whether the defendant’s affidavits, as a matter of law, 

defeat the plaintiff’s supporting evidence.” (Schroeder v. Irvine 

City Council (2002) 97 Cal.App.4th 174, 184.) Only if the plaintiff 

fails to meet this burden should the motion be granted. (Mattel, 

Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 

1179, 1188–1189.)

III. The trial court properly denied SJO’s anti-SLAPP motion

We agree with the trial court that the Riedels’ claims 

against SJO do not trigger the anti-SLAPP statute. They are 

suing SJO for fraud stemming from misrepresentations made by 

SJO’s agent at a meeting. According to the FACC and the 

supporting evidence, SJO’s agent duped the Riedels into signing 

a contract for the sale of their property when at all times they 

believed they were merely signing an unenforceable bid from SJO 

to purchase their property. The alleged wrongful acts are not 

protected activity, and the causes of action alleged against SJO 

do not arise out of protected activity. Thus, SJO’s alleged 

wrongful conduct does not fall within the scope of the anti-SLAPP 

statute.

Urging us to reverse, SJO argues that the Riedels’ claims 

wrongfully arise out of SJO’s filing of a lis pendens against their 
9

property.4 After all, the Riedels’ only damages are those arising 

from the filing of the lis pendens. We are not convinced. “‘[T]he 

mere fact that an action was filed after protected activity took 

place does not mean the action arose from that activity for the 

purposes of the anti-SLAPP statute. [Citation.] Moreover, that a 

cause of action arguably may have been “triggered” by protected 

activity does not entail that it is one arising from such. 

[Citation.] In the anti-SLAPP context, the critical consideration 

is whether the cause of action is based on the defendant’s 

protected free speech or petitioning activity.’ [Citation.]” 

(Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)

Here, the Riedels’ claims against SJO are not based upon 

SJO’s filing of the lis pendens. Rather, their claims are based 

upon the wrongful conduct at the July 2018 meeting. The filing 

4

SJO correctly argues that a claim based upon the filing of a 

lis pendens falls squarely within the scope of the anti-SLAPP 

statute. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285; see 

also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) And in 

their respondents’ brief, the Riedels agree that that portion of 

their damages stemming from the filing of the lis pendens is 

“problematic.” This concession seems to raise the question of 

whether part of the fraud claims are barred by the anti-SLAPP 

statute. But, SJO’s entire argument is set forth in a footnote in 

the conclusion of its reply brief, wherein it asks us to review 

Baral v. Schnitt (2016) 1 Cal.5th 376 “if the causes of action are 

deemed to arise from both protected and unprotected activity.” 

Because the issue is not sufficiently argued or briefed, we deem it 

forfeited. (Benach v. County of Los Angeles (2007) 149 

Cal.App.4th 836, 852; Reichardt v. Hoffman (1997) 52 

Cal.App.4th 754, 764 [we do not consider arguments first raised 

in a reply brief].)
10

of the lis pendens merely brought to light the fraud that had been 

inflicted upon them. (Episcopal Church Cases, supra, 45 Cal.4th 

at p. 478 [the fact that protected activity may “lurk in the 

background” does not turn an unprotected dispute into a SLAPP 

suit].)

SJO’s contention that the Riedels only allege damages 

stemming from the filing of the lis pendens is simply wrong. As 

set forth above, the FACC alleges harm and suffering5 and seeks 

compensatory, general, and punitive damages. The fact that the 

Riedels may not be able to prove actionable damages6 is not 

something we consider when conducting our analysis of “‘prong 

one’” of the anti-SLAPP statute. (MMM Holdings, Inc. v. Reich

(2018) 21 Cal.App.5th 167, 178.) Damages are an element of a 

fraud cause of action. (Alliance Mortgage Co. v. Rothwell (1995) 

10 Cal.4th 1226, 1239, fn. 4 [elements of negligent 

misrepresentation include damages]; Anderson v. Deloitte & 

Touche (1997) 56 Cal.App.4th 1468, 1474 [elements of actual 

fraud include damages].) Thus, in the context of an anti-SLAPP 

motion, whether the Riedels suffered damages is only a 

consideration if we need to conduct an analysis of “‘prong two.’” 

(MMM Holdings, Inc. v. Reich, supra, at p. 178.)

Because we conclude that the Riedels’ fraud claims do not 

fall within the scope of the anti-SLAPP statute, we need not 

5

If the Riedels did not allege damages with sufficient 

specificity, SJO could have filed a demurrer. (Lazar v. Superior 

Court (1996) 12 Cal.4th 631, 638.)

6 We express no opinion on whether the Riedels are entitled 

to damages.
11

determine whether they demonstrated a probability of prevailing 

on the merits of their claims. (City of Cotati v. Cashman (2002) 

29 Cal.4th 69, 80–81.)

DISPOSITION

The order is affirmed. The Riedels are entitled to attorney 

fees and costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT