Filed 5/6/20 Cruz v. Abdelaziz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

FRANK CRUZ,

Plaintiff and Appellant,

v.

MEL ABDELAZIZ,

Defendant and Respondent.

F077346

(Super. Ct. No. 17CECG04380)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Donald S. Black, Judge.

Frank Cruz, in pro. per, for Plaintiff and Appellant.

Yarra Law Group and H. Ty Kharazi for Defendant and Respondent.

-ooOoo-

Plaintiff, Frank Cruz, appeals from the order granting defendant’s special motion to strike the malicious prosecution cause of action from his complaint. We conclude the trial court properly found defendant met his burden of showing the cause of action arose out of defendant’s acts in furtherance of his rights of petition or free speech, and plaintiff failed to demonstrate a reasonable probability he will prevail on the merits at trial. Consequently, the trial court properly granted the motion, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cruz filed an action against defendant, Mel Abdelaziz, alleging causes of action for breach of contract, fraud, and “[i]ntentional tort.” The breach of contract cause of action alleged that, on October 25, 2017, Cruz and Abdelaziz entered into a written contract in which Cruz agreed to buy, and Abdelaziz agreed to sell, certain real property. On the same day, Abdelaziz allegedly breached the contract by filing an unlawful detainer action against Cruz, based on rent payments that were satisfied, canceled, or extinguished by the purchase agreement. As a result, Cruz lost the property.

The fraud cause of action alleged Abdelaziz concealed his intent to file and prosecute the unlawful detainer action, and, by filing the unlawful detainer complaint on the same day he signed the purchase and sale contract, Abdelaziz manifested his intention not to perform the contract. In reliance on Abdelaziz’s conduct, Cruz opened escrow, spent time and money to ensure escrow closed on time, and expended funds making improvements to the property. As a result of the fraud, Cruz lost the property and the value of the improvements he made.

The intentional tort cause of action alleged Abdelaziz maliciously and fraudulently filed and prosecuted an unlawful detainer action against Cruz, based on fabricated facts. Abdelaziz knew the three-day notice to pay rent or vacate the property had been satisfied or extinguished by the purchase agreement, making the unlawful detainer action frivolous and in bad faith.

Abdelaziz demurred to the complaint and filed a special motion to strike it pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). The trial court granted the anti-SLAPP motion without leave to amend as to the “intentional tort” cause of action, which it treated as a cause of action for malicious prosecution. It denied the motion as to the other causes of action. It also overruled the demurrer to the breach of contract and fraud causes of action and found the demurrer moot as to the malicious prosecution cause of action, in light of the ruling on the anti-SLAPP motion. Cruz appeals from the order granting the special motion to strike the malicious prosecution cause of action.

DISCUSSION

I. Appealability

Abdelaziz argues this appeal is improper and untimely, because the proper means of obtaining review of the trial court’s order granting the special motion to strike was by petitioning for a peremptory writ within 20 days after service of notice of entry of the order. In support, he cites section 425.18, subdivision (g). That provision, however, applies to “an order denying a special motion to strike a SLAPPback claim, or granting the special motion to strike as to some but less than all causes of action alleged in a complaint containing a SLAPPback claim.” (§ 425.18, subd. (g).)

A “SLAPPback” is defined as “any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under [s]ection 425.16.” (§ 425.18, subd. (b)(1).) Abdelaziz has not shown that Cruz’s malicious prosecution cause of action was a SLAPPback, i.e., that it arose from the filing of a prior cause of action that was dismissed pursuant to an anti-SLAPP motion. Cruz’s malicious prosecution cause of action was based on Abdelaziz’s prior unlawful detainer action. The unlawful detainer action was not dismissed as a result of a successful anti-SLAPP motion. Rather, in support of his demurrer and anti-SLAPP motion, Abdelaziz submitted a copy of the judgment entered in his favor in the unlawful detainer action and requested judicial notice of the judgment. Consequently, Abdelaziz has not established the provisions of section 425.18 apply to this appeal.

Abdelaziz filed an anti-SLAPP motion pursuant to section 425.16, and it was granted. Section 425.16, subdivision (i), provides: “An order granting or denying a special motion to strike shall be appealable under [s]ection 904.1.” Section 904.1, subdivision (a)(13), confirms this, stating an appeal may be taken “[f]rom an order granting or denying a special motion to strike under [s]ection 425.16.”

An anti-SLAPP motion may be granted, striking a single cause of action and leaving other claims for further litigation. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) An immediate appeal may be taken from an order granting or denying an anti-SLAPP motion as to some, but not all, causes of action. (Old Republic Construction Program Group (2014) 230 Cal.App.4th 859, 866, fn. 4.) Consequently, we conclude the order granting the anti-SLAPP motion and striking the malicious prosecution cause of action is appealable.

II. Special Motion to Strike

“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 … 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).) An “ ‘act in furtherance of a person’s right of petition or free speech … in connection with a public issue’ includes: (1) any written or oral statement or writing made before a … judicial proceeding, or … (2) any written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body.” (§ 425.16, subd. (e).) “The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims that are brought to chill another’s valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508 (Padres).)

When a defendant files an anti-SLAPP motion, a two-step process is required. First, “[a] defendant bringing an anti-SLAPP motion to strike must make a prima facie showing that the plaintiff’s suit is subject to section 425.16, i.e., that the defendant’s challenged acts were taken in furtherance of his constitutional rights of petition or free speech in connection with a public issue, as defined by the statute.” (Padres, supra, 114 Cal.App.4th at p. 508.) Second, “[i]f the defendant makes such a showing, the burden shifts to the plaintiff to demonstrate, by admissible and competent evidence, a reasonable probability that it will prevail on the merits at trial.” (Id. at pp. 508–509.) “On appeal, we independently review the trial court’s ruling on the motion to strike.” (Id. at p. 509.)

In the first step of the process, the trial court implicitly found Cruz’s malicious prosecution cause of action arose from protected activity, satisfying Abdelaziz’s initial burden of proof. It noted that, “[w]here the malicious prosecution cause of action alleges that the underlying action was brought with a malicious motive and without probable cause, this is sufficient to show the action is subject to” an anti-SLAPP motion (citing Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087). Cruz does not contend Abdelaziz failed to demonstrate the malicious prosecution cause of action arose from protected activity. “The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215.) Abdelaziz satisfied his initial burden.

In the second step, the trial court found that Cruz failed to meet his burden of showing a reasonable probability he would prevail on the merits. The elements of a cause of action for malicious prosecution are: “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) The trial court took judicial notice of the judgment in the underlying unlawful detainer action. The judgment indicated it was taken by default, entered in favor of Abdelaziz, and awarded Abdelaziz possession of the property. The trial court determined there was no termination in Cruz’s favor in the underlying action. Further, Abdelaziz prevailed in that action, indicating he had probable cause to bring it. Cruz does not challenge the trial court’s consideration of the judgment in ruling on the anti-SLAPP motion. The unchallenged judgment establishes the underlying action was not terminated in Cruz’s favor on the merits.

In this appeal, Cruz does not contend he demonstrated in the trial court that he could establish each element of a malicious prosecution cause of action, and therefore he met his burden of showing, by admissible and competent evidence, a reasonable probability that he would prevail on the merits at trial. Rather, Cruz contends that, by agreeing to sell the property to him, Abdelaziz “necessarily waived his … right to institute an unlawful detainer action” because an unlawful detainer action may be maintained only when a landlord-tenant relationship exists. He adds that, “[i]n waiving his right to file an unlawful detainer action, Abdelaziz also necessarily waived the protections of [section] 425.16 regarding it” (citing Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier) & other cases).

In Navellier, the court did conclude a defendant could “in effect” waive the right to the anti-SLAPP statute’s protection, if, through a release of claims, he or she validly contracted not to petition on his or her claims against the plaintiffs, and later faced an action by the plaintiffs, which alleged he or she breached the release agreement by filing a prior cross-action against the plaintiffs that asserted the released claims. (Navellier, supra, 29 Cal.4th at p. 94.) The court indicated, however, that this is a question of breach, which must be addressed in the second step of the anti-SLAPP process: whether the plaintiff has established a reasonable probability he will prevail on the merits at trial. (Id. at pp. 93–94.) Thus, in order to satisfy the second step of the process and obtain a denial of the anti-SLAPP motion, where a breach of a release of claims is alleged, the plaintiff must present evidence substantiating the allegations that the defendant agreed to a release of claims, and subsequently, in breach of that agreement, filed an action asserting the released claims.

In this case, it was Cruz’s burden to substantiate his claim of malicious prosecution by providing evidence in support of each element of the cause of action. This required that Cruz show: (1) Abdelaziz commenced the unlawful detainer action and it resulted in a legal termination in Cruz’s favor; (2) Abdelaziz brought the action without probable cause; and (3) Abdelaziz initiated the action with malice. Because Cruz relied on the waiver argument, it was his burden to substantiate the allegation that Abdelaziz brought the unlawful detainer action knowing the three-day notice to pay rent or vacate the property had been satisfied or extinguished by the purchase and sale agreement. This allegation addressed the elements of probable cause and malice. Even if Cruz provided evidence substantiating that allegation, however, he did not, and could not, substantiate the first element—that the unlawful detainer action terminated in Cruz’s favor. The judgment in the unlawful detainer action was entered in Abdelaziz’s favor. Cruz has not disputed this in his appellate brief, nor has he cited us to any contrary evidence in the record. Consequently, Cruz failed to substantiate every essential element of his malicious prosecution cause of action.

Because Cruz did not meet his burden of demonstrating, “by admissible and competent evidence, a reasonable probability that [he] will prevail on the merits at trial” (Padres, supra, 114 Cal.App.4th at p. 509), the trial court properly granted Abdelaziz’s special motion to strike the malicious prosecution cause of action.

DISPOSITION

The order granting Abdelaziz’s special motion to strike the malicious prosecution cause of action is affirmed. Abdelaziz is entitled to his costs on appeal.