1 Filed 4/22/15 Riley v. Usher CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

RICHARD JOHN RILEY, Plaintiff and Respondent,

v. ULRIC E.J. USHER et al., Defendants and Appellants. A140490
(San Francisco County Super. Ct. No. CGC-13-531667)

Plaintiff Richard John Riley brought this lawsuit for damages, alleging a money judgment against Richard Robert Riley was erroneously le vied on plaintiff’s bank account. Defendants—the judgment creditor an d her attorney—appeal the denial of their motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16), 1 arguing plaintiff’s causes of action arise from protec ted activity and are barred by the litigation privilege (Civ. Code, § 47, subd. (b)). We reverse in part and remand.
BACKGROUND In 2008, defendant Patricia Hamilton, represented by he r attorney, defendant Ulric E.J. Usher (collectively, defendants), obtai ned a money judgment against Richard Robert Riley, an individual, and Ri chard Robert Riley dba R&D Co nstruction, in a construction defect lawsuit (the construction lawsuit). In 2012, defendants obtained a writ of
execution in the construction lawsuit for approximately $35,000. In May 2012,
defendants sent the writ of execution to the San Francisco Sheriff’s Department, along

1 All undesignated section references ar e to the Code of Civil Procedure.2 with written instructions directing the sheri ff to levy the writ on plaintiff’s bank account. 2 Approximately $35,000 was seized from plain tiff’s account and the sheriff’s department disbursed the money to defendants in June 2012. Plaintiff apparently did not realize the money had been taken until December
2012. He then contacted defe ndants and informed them he was not the judgment debtor.
Defendants did not return the mone y taken from plaintiff’s account. 3 Plaintiff subsequently filed the inst ant lawsuit alleging abuse of process, conversion, fraud, and negligence. 4 The operative first ame nded complaint (complaint) includes the general allegations that, “[i]nst ead of locating and executing the judgment on
the correct Defendant RICHARD ROBERT RILEY, [defendants] wrongfully and negligently executed on the wrong party, PLAINTIFF RICHARD JOHN RILEY’s bank account.” The complain t also alleges plaintiff “deman ded Defendants return of the monies illegally taken from him, over more th an five occasions, a nd Defendants have failed to return the funds to Plaintiff, and are wrongfully holding the funds belonging to
Plaintiff.” In the cause of action for abuse of pr ocess, the complaint alleges defendants “misused the NOTICE OF LEVY and WRIT OF EXECUTION collection processes on a judgment debtor by attempting to collect a debt against a no n-party person who is not the judgment debtor . . . .” The cause of acti on for conversion alleges defendants “converted [plaintiff’s] property . . . in order to ‘u nlawfully collect’ on a judgment, which was a process never intended by the Notice of Levy or Writ of Execution,” and further alleges that plaintiff “demanded the immediate re turn of the monies unlawfully taken by

2 Sheriffs are levying officers. (§ 680.260.)

3 The parties dispute the admi ssibility of certain letters from defendants proposing an installment plan to repay the amount levied, which were excl uded by the trial court. We need not decide whethe r the letters were admissible as they are not relevant to our resolution of this appeal.

4 The lawsuit also named plaintiff’s bank as a defendant. The claims against the bank are not at issue in this appeal.3 Defendants, but defendant[s] fail ed and refuse[d] to return the property to plaintiff.” The cause of action for fraud alleges defendants “falsely and fraudulently represented to [plaintiff’s bank] that Plainti ff owed . . . a judgment sum in excess of $35,000.” The cause of action for negligence alleges defenda nts “negligently inves tigated in searching for the correct person and caused to be prepared a NOTICE OF LEVY and WRIT OF EXECUTION against the incorrect person.” Defendants filed an anti-SLAPP motion, arguing their conduct in enforcing the construction lawsuit judgment was protected activity and th e litigation privilege barred all of plaintiff’s claims. The trial court deni ed defendants’ motion on the ground that “the gravamen of Plaintiff’s complaint arises out of the wrongful w ithholding of money by Defendants, and therefore does not arise from a protected activity.” The trial court also
found defendants’ motion frivolous and awarded plaintiff attorney’s fees. This appeal
followed.
DISCUSSION
The anti-SLAPP statute “allows a court to strike any cause of action that arises
from the defendant’s exercise of his or her c onstitutionally protected rights of free speech or petition for redress of grievances.” ( Flatley v. Mauro (2006) 39 Cal.4th 299, 311–312 ( Flatley ).) “In evaluating an anti-SLAPP motion, th e trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity.” ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 ( Rusheen ).)
“If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevaili ng on the claim.” ( Ibid. ) This requires the plaintiff to demonstrate “ ‘ “that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” ( Ibid. ) We review the trial court’s order denying th e anti-SLAPP motion de novo. ( Flatley, supra, at p. 325.)4 I. Protected Activity Plaintiff argues the conduct alleged is not protected under the anti-SLAPP statute because (1) the gravamen of the causes of action is no t protected activity, and (2) defendants’ alleged conduct is illegal. 5

A. The Gravamen of the Causes of Action Protected activity under the anti-SLAPP statute includes “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . .” (§ 425.16, su bd. (e)(2).) The notice of levy and defendants’ written instructions to the sheriff plainly fa ll within this category as writings made in
connection with the construction lawsuit. Th is conduct is therefore protected activity under the anti-SLAPP statute. (Cf. La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 471 [recording of lis pendens “constitu ted a written statement made in connection with issues under consideration in a judici al proceeding—that is, the underlying quiet title action” and is therefore prot ected activity under § 425.16].) However, the trial court found, and plain tiff argues, the gravamen of the causes of
action is defendants’ refusal to return the fu nds after plaintiff notified them the levied property was not the judgment debtor’s, rather than their conduct in connection with the levy itself. “Where, as here, a cause of ac tion is based on both pr otected activity and unprotected activity, it is subj ect to section 425.16 ‘ “unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” ’ ” ( Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551.) “For purposes of antiSLAPP analysis, . . . an alleged act is inci dental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the

5 Plaintiff also argues the litigation pr ivilege does not protect defendants’ communications in connection w ith the levy. We discuss th e application of the litigation privilege below, in connection with the second step of the SLAPP anal ysis. Although at times courts have “looked to the litigation pr ivilege as an aid” in determining whether conduct is protected under the first step of the anti-SLAPP analysis ( Flatley, supra, 39 Cal.4th at p. 323), “the two statutes are not substantively the same” and do not “serve the same purposes” ( id. at pp. 323–324).5 basis for liability.” ( Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1183 ( Wallace ).) All four causes of action against defe ndants allege the levy as one—if not the sole—action providing the basis for liability. Therefore, the protected activity is not “merely incidental” to th e nonprotected activity.
B. Illegal Activity Plaintiff also argues the conduct allege d is not protected activity because it is illegal. In Flatley , the Supreme Court held that if “e ither the defendant concedes, or the evidence conclusively establishe s, that the assertedly prot ected speech or petition activity was illegal as a matter of law,” the activity is not protected by the anti-SLAPP statute. ( Flatley, supra, 39 Cal.4th at p. 320.) “[T]he Supr eme Court’s use of the phrase ‘illegal’
was intended to mean crim inal, and not merely violative of a statute.” ( Mendoza v. ADP Screening and Select ion Services, Inc. (2010) 182 Cal.A pp.4th 1644, 1654.) Plaintiff contends the levy constituted the crimes of theft (Pen. Code § 484) and identity theft (Pen. Code § 530.5). Defenda nts do not concede they committed theft or identity theft. The ev idence does not conclusively esta blish either crime, as defendants submitted a declaration stating their inves tigation led them to reasonably conclude plaintiff was the judgment debtor in the constr uction lawsuit and asserting plaintiff is in fact the judgment debtor. The exception in Flatley does not apply.
II. Probability of Prevailing “[W]here a cause of action arises from both protected activity and unprotected activity, the plaintiff may satis fy its obligation in the sec ond prong by simply showing a probability of prevailing on any pa rt of the cause of action.” ( Wallace, supra, 196 Cal.App.4th at p. 1212.) 6 Defendants contend plaintiff has failed to demonstrate a probability of prevailing because the litig ation privilege bars his claims.

6 Although the trial court did not reach the s econd prong of the anti-SLAPP analysis, the parties have fully briefed the issue and we exercise our discretion to decide it. ( Wallace, supra, 196 Cal.App.4th at p. 11 95 [“we have discretion to decide the [second SLAPP step] issue ourselves, since it is s ubject to independent review”].)6 The litigation privilege immunizes certain communications from tort liability, with the exception of malicious prosecution. ( Rusheen, supra, 37 Cal.4th at p. 1057.) “ ‘[I]t applies to any publication requ ired or permitted by law in the course of a judicial proceeding to achieve the obje cts of the litigation, even th ough the publication is made
outside the courtroom and no func tion of the court or its office rs is involved. [Citations.] [¶] The usual formulation is that the privile ge applies to any communication (1) made in judicial or quasi-judicial proc eedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigati on; and (4) that have some connection or logical relation to the action. [Citations.] ’ [Citation.] Thus, ‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege [citation]. It is not limited to statements made during a trial or other proceedings, but may extend to steps take n prior thereto, or afterwards.” ( Ibid. ) “Because the litigation privilege protects only publications an d communications, a ‘threshold issue in determining the applic ability’ of the privile ge is whether the
defendant’s conduct was communicative or noncommunicative. [Citation.] The
distinction between communicative and no ncommunicative conduct hinges on the gravamen of the action. [Citations.] That is , the key in determini ng whether the privilege applies is whether the injury allegedly resu lted from an act that wa s communicative in its essential nature.” ( Rusheen, supra, 37 Cal.4th at p. 1058.)
Rusheen involved a lawsuit alleging the defenda nt filed false proofs of service, took a default judgment w ithout proper notice, and ex ecuted the improper default judgment. ( Rusheen, supra, 37 Cal.4th at p. 1054.) The plaintiff argued “the wrongful act of levying on property in execution of judgment is a noncommunicative act in its ‘essential nature’ and is thus unprivileged.” ( Id. at p. 1061.) The California Supreme
Court declined to decide this issue, concluding, “even if levying on property involves a noncommunicative physical act” ( ibid. ), the “gravamen of the action was not the levying act, but the procurement of the judgment ba sed on the use of allegedly perjured declarations of service.” ( Id . at p. 1062.) The court held that “where the cause of action is based on a communicative act, the litig ation privilege extends to those7 noncommunicative actions which are necessar ily related to that communicative act,” including postjudgment en forcement efforts. ( Id. at p. 1052.) While not deciding whether a levy itsel f is a communicative or noncommunicative act, the Supreme Court in Rusheen noted, “even the execution and levying process may
also involve communications such as the delivery of the writ and statements or representations made to the levying officer or other party.” ( Rusheen, supra, 37 Cal.4th at p. 1061, fn. 3.) One court of appeal has subsequently held a tort claim alleging wrongful conduct in the le vying process was barred by th e litigation privilege. In Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Ca l.App.4th 1283 ( Tom
Jones ), the judgment debtor was the trustee of a family trust. ( Id. at p. 1287.) The plaintiffs instructed the sheriff’s departme nt to levy the writ of execution on deposit
accounts in the name of the judgment debtor. ( Ibid. ) The sheriff apparently seized the assets in deposit accounts owned by the judgmen t debtor individually, as well as in her capacity as a trustee. ( Ibid. ) The plaintiffs instructed the sheriff’s department to release any of the judgment debtor’s individual property; the sh eriff’s department instead released all of her property, including that held in her capacity as trustee. ( Id. at pp. 1287–1288.) The plai ntiffs filed a negligence lawsuit against the sheriff’s department “for causing the release of funds subject to a writ of execution contrary to the instructions of plaintiffs.” ( Id. at p. 1286.) The court of appeal held the “[p]laintiffs’ negligence claim based on the instructions given to th e bank by a Sheriff’s Department employee is barred by the litigation privilege.” ( Id. at p. 1294.) The court explained, “the gravamen
of the action—the issuance of written inst ructions by the Sheriff’s Department (presumably to the bank) to fully release the funds—wa s a communicative act. The litigation privilege even ‘extends’ to what may be considered a noncommunicative act— the act of releasing the funds.” ( Id. at p. 1296.) Another case, cited with approval in
Rusheen , similarly found conduct in connection w ith an allegedly improper bank account levy was protected by the litigation privilege. ( O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134–135 ( O’Keefe ).)8 Plaintiff’s complaint seeks to impose liab ility for the misuse of the notice of levy, which was issued pursuant to defendants’ written instructions to the sheriff’s department. Both the notice of levy and the instructions are indisputably communicative acts. They also satisfy the other requirements of th e litigation privilege: “ ‘any [communication] required or permitted by law in th e course of a judicial proceeding to achieve the objects of the litigation, even though the publica tion is made outside the courtroom and no
function of the court or its officers is involved.” ( Rusheen, supra, 37 Cal.4th at p. 1057.) Instructions to a levying officer and a notice of levy are both required by law. 7 (§ 687.010, subd. (a) [“The judgment creditor sh all give the levying officer instructions in writing.”]; § 700.010, subd. (a) [levying offi cer “shall serve . . . notice of levy” on judgment debtor].) That the communications took place after the ju dgment issued does not preclude application of th e litigation privilege, which “i s not limited to statements made during a trial or other pr oceedings, but may extend to steps taken prior thereto, or afterwards.” ( Rusheen, supra, at p. 1057.) Communications taken to levy a writ of execution are made to achieve the objects of th e litigation, as “enforcement of a judgment (in this case by way of levy) is simply the object of any civil action for damages.” ( Id. at p. 1062; see also Brown v. Kennard (2001) 94 Cal.App.4th 40, 49–50 ( Brown ) [“judgment enforcement efforts, as an extension of a judici al proceeding and related to a litigation objective, are considered to be within the litigation pr ivilege”].) As the litigation privilege immunizes de fendants’ levy instructions to the sheriff and the notice of levy, it extends to the subsequent levying act which was “necessar ily related to” these communications. ( Rusheen, supra, at p. 1052.) The litigation privilege does not apply, ho wever, to the separate alleged wrongful conduct of withholding the pr operty after being informed by plaintiff it was not the

7 Plaintiff argues defendants’ communications in connection with the levy were not permissible because they targeted the proper ty of plaintiff, who wa s not a party to the construction lawsuit. This does not re move them from the sc ope of the litigation privilege, which “includ[es] any category of publication permitte d by law,” regardless of whether “the specific publication” is permitted. ( Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 958–959.)9 judgment debtor’s property. This act—withholding the property—was noncommunicative, and ther efore not protected by th e litigation privilege. ( Rusheen,

supra, 37 Cal.4th at p. 1058.) Moreover, unlike the levy itself, the withholding was not “necessarily related to” the sher iff’s instructions and notice of levy, as any wrongfully
levied funds could be re turned upon demand. Accordingly, we must determine whet her plaintiff has shown a probability of prevailing on any cause of acti on with respect to the wrongf ul withholding. We have little difficulty concluding that plaintiff has satisfied this burden as to the conversion
cause of action. “The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal prop erty; (2) the defendant’s disp osition of the property in a manner that is inconsistent with the plai ntiff’s property rights; and (3) resulting damages.” ( Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “A conversion can oc cur when a willful fa ilure to return property deprives the owner of possession.” ( Fearon v. Department of Corrections (1984) 162 Cal.App.3d 1254, 1257.) Plaintiff has submitted a declarati on that he is not the judgment debtor and that defendants willfully faile d to return his property.
Plaintiff’s other causes of action canno t support liability based solely on the wrongful withholding. “The common law tort of abuse of process ar ises when one uses the court’s process for a purpose other than that for which the process was designed.” ( Rusheen, supra, 37 Cal.4th at p. 1056.) While cond uct related to the levy involved a use of judicial process, defenda nts’ post-levy refusal to retu rn plaintiff’s funds did not involve a use of court process. Plaintiff’s claims for fraud and negligence are based solely on defendants’ conduct in connection with the le vy. The complaint makes no allegations of fraud or negligence in co nnection with the wro ngful withholding. Accordingly, we conclude plaintiff has established a probability of prevailing only with respect to his claim for conversion. All other claims must be stricken.
III. Attorney Fees Defendants appeal the trial court’s awar d of attorney fees to plaintiff on the ground that the anti-SLAPP motion was frivol ous (§ 425.16, subd. (c)(1)). Because we10 conclude the anti-SLAPP motion was partially meritorious, we reverse this fee award. We also deny plaintiff’s motion for sa nctions for filing a frivolous appeal. Defendants request an award of attorney f ees for work performed in the trial court and on appeal as a prevailing defendant pursuant to secti on 425.16, subdivision (c)(1), which provides, with exceptio ns not relevant here, “a prev ailing defendant on a special
motion to strike shall be entitled to recover hi s or her attorney’s fees and costs.” As partially successful defendants, they are “e ntitled to recover attorney fees and costs incurred in moving to strike the claims on wh ich they prevailed, but not fees and costs incurred in moving to strike the remaining claims.” ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) We will re mand to the trial court for a determination of the appropriate amount of the award.
DISPOSITION The order denying the anti-SLAPP motion is vacated and the trial court is directed to enter a new order granting the motion with resp ect to the first, third, and fourth causes of action, and denying the moti on with respect to the second cause of action. Defendants
are entitled to fees and costs incurred in moving to strike the claims on which they prevailed both in the trial court and on ap peal. The trial cour t should determine the

amount.11 SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.