Filed 7/22/13 Jovaag v. Ott CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

JORY A. JOVAAG, Plaintiff and Appellant,

v. DONALD R. OTT et al., Defendants and Respondents. H038468 (Santa Clara County Super. Ct. No. CV215896)

This appeal is one in a series of appeals brought by Jory A. Jovaag related to the
termination of her 29

- year purported common

- law marriage to Donald R. Ott, and
Ms. Jovaag‟s action against Mr. Ott over the division of the couple‟s jointly held property. 1 The present appeal is of the trial court‟s order granting Mr. Ott and his attorney, Daniel Jensen‟s special motion to strike (“anti

- SLAPP” motion) ag ainst Ms. Jovaag, and dismissing Ms. Jovaag‟s complaint against Mr. Ott and Mr. Jensen. Ms. Jovaag, who is proceeding in propria perona, asserts on appeal that the trial court erred in granting the
anti

- SLAPP motion, because it applied the wrong legal sta ndard under Code of Civil
Procedure section 425.16.

1 Jovaag v. Ott , Santa Clara County Superior Court No. CV119884.2 S TATEMENT OF THE C ASE The underlying action for division of Ms. Jovaag and Mr. Ott‟s jointly held property was tried in May 2011. The court ruled in favor of Mr. Ott, and issued an injunction freezi ng all of Ms. Jovaag‟s accounts. Ms. Jovaag and Mr. Ott appeared for further hearing on the matter on May 16, 2011, and entered into a global settlement of all
issues. On July 20, 2011, a judgment was entered in favor of Mr. Ott. Part of the judgment r equired Ms. Jovaag to execute an interspousal transfer deed of trust to real property. In January 2012, Ms. Jovaag filed a complaint against Mr. Ott and Mr. Jensen, as well as Champion Mobile Notary, who notarized the interspousal transfer deed. The

com plaint alleged fraud, real estate fraud, deceit and undue influence. The basis of
Ms. Jovaag‟s allegations is her belief that Mr. Ott and Mr. Jensen willfully deceived her, threatened her with criminal charges, and exerted undue influence over her so that she would execute the interspousal transfer deed. On March 16, 2012, Mr. Ott filed an anti

- SLAPP motion pursuant to Code of Civil
Procedure section 425.16. 2 Mr. Jensen also filed an anti

- SLAPP motion, which the court granted on May 24, 2012, dismissing Ms. Jovaag‟s complaint. Ms. Jovaag filed a notice of appeal.
D ISCUSSION On appeal, Ms. Jovaag asserts the court applied the wrong legal standard in considering Mt. Ott‟s and Mr. Jensen‟s anti

- SLAPP motion. A SLAPP, or Strategic Lawsuit Against Publ ic Participation, is an unsubstantiated lawsuit arising from the defendant‟s constitutionally protected speech or petitioning activity. ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60

2 All unspecified statutory references are to the Code of Civil Procedure.3

( Equilon ).) Section 425.16 was enacted in 1992 t o address the “disturbing increase” in the frequency of these meritless harassing lawsuits. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1126.) It was the Legislature‟s finding “that it is in the public inte rest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.” (§ 425.16,
subd. (a).) The statu te was thus designed to deter meritless actions that “deplete „the defendant‟s energy‟ and drain „his or her resources‟ [citation], .

. . „ “ .

. . by ending them early and without great cost to the SLAPP target” ‟ [citation].” ( Varian Medical Systems,
In c. v. Delfino (2005) 35 Cal.4th 180, 192.) Section 425.16 expressly provides that “[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 Constitutio n 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.” (§ 425.16, subd. (b)(1).) In evaluating a motion under the statute the trial court engages in “a two

- step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken „in furtherance of the [defendant]‟s right of petition or free speech under the United States or California Constitution in connecti on with a public issue,‟ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” ( Equilon, supra , 29 Cal.4 th at p. 67.) “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 to4

being stricken under the statute.” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) On appeal we review the entire record de novo to decide whether the defendant has shown that section 425.16 applies and, if so, whether the plaintiff has shown a probability of prevailing. ( ComputerXpress, Inc. v. Jackson (200 1) 93 Cal.App.4th 993, 999.) “Accordingly, we independently determine whether the challenged cause of action arose from the defendant‟s exercise of the constitutional right of petition or free speech

— and if so, whether the plaintiff has demonstrated a pro bability of prevailing on the merits of the claim.” ( Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) We consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, s ubd. (b)(2).) “However, we neither „weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant‟s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.‟ ” ( Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, quoting HMS Capital , Inc. v. Lawyers Title Co . (2004) 118 Cal.App.4th 204, 212.) Here, the causes of action Ms. Jovaag asserts in her complaint are related to the execution of the interspousal transfer deed pursuant to the settlement and judgment in the underlying action. Specifically, Ms. Jovaag alleges causes of action for fraud, real estate fraud, deceit and undue influence based on her belief that Mr. Ott and Mr. Jensen willfully deceived her, threatened her with criminal charges, and exerted undue influence over her so that she would execute the interspousal transfer deed. Mr. Ott‟s and Mr. Jensen‟s acts of which Ms. Jovaag com plain were taken to vindicate Mr. Ott‟s rights under the judgment. As such, they were “ „in furtherance of the [defendant]‟s right of petition or free speech under the United States or California Constitution in connection with a public issue,‟ as defined in the statute. (§ 425.16, subd. (b)(1).)” ( Equilon, supra , 29 Cal.4th at p. 67.)5

Ms. Jovaag mistakenly asserts the anti

- SLAPP statute is related only to actions
with a connection to a public issue. On the contrary, the anti

- SLAPP protects all petitio n

related activity, whether or not they are connected with a public issue. (§ 425.16,
subd. (e).) This, of course, would include Mr. Ott and Mr. Jensen‟s action of securing the execution of the interspousal transfer deed.
Mr. Ott and Mr. Jensen meet t heir initial burden of establishing that Ms. Jovaag‟s claims in the complaint arise from protected activity within the meaning of section 425.16. As a result, we must consider whether Ms. Jovaag has demonstrated a possibility of prevailing on her claims. (§ 425.16, subd. (b)(1).) Mr. Ott‟s and Mr. Jensen‟s conduct of securing the interspousal transfer deed was privileged under the litigation privilege as set forth in Civil Code section 47,
subdivision (b), which protects for a statement made in a judi cial proceeding or “in any other official proceeding authorized by law

. . . .” The application of the litigation privilege prevents Ms. Jovaag from succeeding on her action in the complaint. Ms. Jovaag incorrectly asserts that the litigation privilege d oes not apply to “unlawful conduct,” such as the fraud she alleges Mr. Ott and Mr. Jensen committed. The question of the lawfulness of Mr. Ott‟s and Mr. Jensen‟s conduct, however, was directed at the first step of the SLAPP analysis. The privilege remain s “relevant to the second step in the anti

- SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” ( Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Indeed, the court emphasized that “the question of whether the defendant‟s underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establ ish conduct illegal as a matter
of law

— either through defendant‟s concession or by uncontroverted and conclusive
evidence

— is not the same showing as the plaintiff‟s second prong showing of probability6

of prevailing.” ( Id. at p. 320.) “ „The principal pur pose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]‟ [Citation.] In order to achieve this purp ose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation.” ( Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi

-

judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation to the action.” ( Silberg v. Anderson, supra , 50 Cal.3d at p. 212.) Here, as we have discussed, the focus of Ms. Jovaag‟s causes of action against
Mr. Ott and Mr. Jensen in her complaint was their conduct associated with securing the

exe cution of the interspousal transfer deed pursuant to the judgment in the underlying action. Mr. Ott‟s and Mr. Jensen‟s actions are protected by the litigation privilege, and as a result, Ms. Jovaag has no chance of success on her claims. Mr. Ott‟s and Mr . Jensen‟s
anti

- SLAPP motion, and the dismissal of Ms. Jovaag‟s complaint was proper in this case.
D ISPOSITION The order appealed from is affirmed.7 ______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

ELIA, J.