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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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) against 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 standard under Code of Civil 

Procedure section 425.16. 

 

1

 Jovaag v. Ott, Santa Clara County Superior Court No. CV119884.
2

STATEMENT OF THE CASE

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 freezing 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 required 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 

complaint 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. 

DISCUSSION

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 Public 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 to 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 interest 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 statute 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, 

Inc. 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 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.” (§ 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 connection 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.4th 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 to 
4

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 (2001) 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 probability 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, subd. (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 complain 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 petitionrelated 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 their 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 judicial 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 does 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 remains “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 establish 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 probability 
6

of prevailing.” (Id. at p. 320.)

“ „The principal purpose 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 purpose 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 

execution 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. 

DISPOSITION

The order appealed from is affirmed. 
7

______________________________________

RUSHING, P.J.

WE CONCUR:

 

____________________________________

PREMO, J.

____________________________________

ELIA, J.