Filed 7/9/20 Soofi v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RASHEED SOOFI,

Plaintiff and Appellant,

v.

STEPHEN SMITH et al.,

Defendants and Respondents.

D076082

(Super. Ct. No. 37-2019-000001874- CU-FR-CTL )

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

Rasheed Soofi, in pro. per., for Plaintiff and Appellant.

Law Office of Gary Brenner and Gary Brenner for Defendants and Respondents.

Rasheed Soofi was married to Alieh Mahdis Khavari. Ultimately, Khavari petitioned to dissolve that marriage and hired the law firm of Dunne & Dunne LLP to represent her. The marriage dissolution action was extremely acrimonious, involving disputes regarding assets, spousal support, and alleged abuse. As part of the marriage dissolution action, the superior court appointed Kevin Singer of Receiver Specialists to aid the enforcement of the judgment and collect income from Soofi’s business.

Based on alleged acts arising out of and occurring during the marital dissolution action between Soofi and Khavari, Soofi sued Dunne & Dunne LLP, Anthony J. Dunne, Stephen Smith, Vanessa Rae Negrete, Paula Ann Phinney, Smith Family Law, Khavari, Singer, and Receiver Specialists. Initially, Khavari was represented by Dunne and his law firm (Dunne & Dunne LLP) of which Smith and Phinney were associated. Negrete’s involvement in the dispute appears limited as she allegedly “specially appeared” on behalf of Dunne at a deposition of Khavari that did not go forward at that time. Eventually, Smith left Dunne & Dunne LLP, started his own law firm (Smith Family Law), and continued to represent Khavari.

Smith and Smith Family Law filed a motion to strike the complaint under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, Code of Civil Procedure section 425.16. Khavari also filed an anti-SLAPP motion. The superior court granted both motions.

Soofi appeals the order granting the anti-SLAPP motions, arguing that the superior court erred in granting the motions because Soofi’s complaint did not seek relief against Respondents for any statement they made or action they took in the public interest, and he would have prevailed on his claims against them. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Initially, we observe that Soofi, as an in propria persona litigant, is “entitled to the same, but no greater, rights than [a] represented litigant and [is] presumed to know the [procedural and court] rules.” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) It is an appellant’s duty to support arguments in his or her briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Here, Soofi filed a 53 page brief. At times, he cites to the record (largely to exhibits to his complaint consisting of pleadings and documents relating to his marital dissolution action), but for large portions of his opening brief, he merely provides a narrative without pointing us to the record for support of his factual assertions. Such approach does not comply with California Rules of Court, rule 8.204(a)(1)(C) and rule 8.204(a)(2)(C). That said, we attempt to piece together the salient facts and procedural history based on what we can discern from the opening brief that is supported by the record. Where the parties agree on a fact, we will assume that such fact is accurate for purpose of our analysis here.

After being married about four years, Khavari filed a petition to dissolve her marriage to Soofi. She engaged the legal services of Dunne & Dunne LLP to represent her during the divorce proceedings. Various attorneys at Dunne & Dunne LLP participated in the firm’s representation of Khavari, including Dunne, Smith, and Phinney. During the course of Khavari’s representation, Smith left Dunne & Dunne LLP and founded Smith Family Law. Smith and his firm continued to represent Khavari in her divorce proceedings, replacing Dunne & Dunne LLP as counsel of record.

Although it is difficult to ascertain all the details of the marital dissolution proceeding, it is apparent it was contentious and bitter. The parties disputed Soofi’s income and assets as well as the proper amount of spousal support. For example, the amount of spousal support awarded changed substantially. In an order dated August 22, 2017, the court ordered Soofi to pay Khavari $10,000 a month in spousal support. When Soofi did not make the ordered payments, the court appointed Singer as the receiver, causing garnishment of Soofi’s income from his business. Later, on February 8, 2018, the court reduced Khavari’s spousal support to $1,000 per month.

On January 11, 2019, Soofi filed the instant action. His 190 page complaint (including exhibits) alleged four causes of action, consisting of constructive fraud, fraud, aiding and abetting fraud, and conspiracy to commit fraud. Khavari was a named defendant in the constructive fraud, fraud, and conspiracy to commit fraud claims. Smith and Smith Family Law were named defendants in the fraud, aiding and abetting fraud, and conspiracy to commit fraud claims.

The complaint explicitly averred that the causes of action arise out of the marital dissolution action between Soofi and Khavari:

“This lawsuit involves acts of fraud, fraudulent representation, substantial assistance, aiding, abetting, acts of malice and furthering acts of fraud and fraud upon family court of Dunne & Dunne LLP, its employed, associated or contracted attorneys, professional associate and their client Ms. Alieh [Mahdis] Khavari in a certain marriage dissolution proceeding . . . where [Soofi] . . . suffered financially and mentally and still is suffering from its consequences.”

Indeed, Soofi makes it abundantly clear that the foundation of all his causes of action is the marital dissolution proceeding. For example, Soofi alleged that “Khavari’s intention as petitioner in filing . . . [the] divorce petition was to coerce and intimidate [Soofi] by exerting financial pressure on [Soofi] as respondent in the divorce proceeding.” According to Soofi, Khavari’s son had physically attacked and injured Soofi and was facing criminal charges. Thus, Soofi stated that Khavari’s purpose of filing the divorce action was to gain leverage over him to help her son’s defense in the criminal action. Soofi further alleged that, “with the assistance and awareness” of Dunne and Dunne & Dunne LLP, Khavari “inflated, grossly exaggerated, fabricated falsity and lied in the content of initial filing of petition in regards to her financial needs and the financial ability and actual assets of [Soofi].” Soofi claimed that Smith and the other attorneys who represented Khavari during the marital dissolution action were “fully aware of their illegal and unethical actions and lack of proper actions, aided and abetted their client in conception of alleged fraud, its legal preparation, its fabrication, its misrepresentation as well as its furtherance in family court, for promise of hefty legal fee awards ahead and financial gain which they later enjoyed at the cost and detriment of [Soofi].” Soofi additionally averred that Khavari’s attorneys assisted Khavari in the preparation of a fake and unfounded domestic restraining order, made false statements to the court during the divorce proceedings, and caused Soofi to suffer “anguish and emotional harm.”

Regarding the claim for constructive fraud, Soofi alleged that Khavari fabricated and misrepresented certain financial information in court filings in the marital dissolution action. For the fraud claim, Soofi averred Smith had knowledge of [Soofi’s] true financial situation, but instead, “he chose to lie to Family Court in writing and then later in oral argument to profit his firm and himself.”

In the two remaining claims, Soofi repeated and relied on actions that occurred during the marital dissolution action to form the basis of his claims. For example, for the aiding and abetting fraud claim, Soofi alleged:

“[T]h[e] primary acts of fraud existed on the part of Defendant Alieh Mahdis Khavari with obvious motives and intentions to harm, vex and to coerce [Soofi] into accepting certain terms . . . [Soofi] alleges that family law firm of Dunne & Dunne LLP, its principal attorney Anthony J. Dunne, its associated attorney Stephan Smith, Kevin Singer and Receivership Specialist having known of the nature and purpose of the primary fraud encouraged, aided, advanced ‘Substantially Assisted’ the conception and furtherance of the fraud using their professional license, skills and ‘know How’ ability . . . in which it is either evidenced or convincingly inferred that attorney J. Dunne and attorney Stephan Smith both had the ‘Nexus’ and ‘Scienter’ factors. They both substantially assisted the process and furtherance of acts of fraud with total disregard for truth, law of the land, their professional and ethical obligations; and the grave consequences of their action for [Soofi] was significant financial losses, physiological suffering and mental hardship for which [Soofi] is hereby asking for relief.”

Likewise, Soofi’s allegations regarding conspiracy to commit fraud echoed the previous allegations of wrongdoing in connection with the litigation in the divorce proceeding. For example, Soofi alleged:

“The attorneys at family law firm of Dunne & Dunne and their client Defendant Alieh Mahdis Khavari had far more than an average attorney client relationship. They were in fact, from very first moments of drafting the divorce petition on June 20, 2017 were in a joint conspiracy to defraud [Soofi] each for their own benefit. . . . Both sides however enjoyed common goal of advancing the acts of fraud on [Soofi], Fraud upon court as well as exerting malice and oppression on [Soofi]. Attorney Anthony Dunne and Stephan Smith had known the truth about [Soofi’s] financial status and had numerous opportunities to cease their conspiracy to [sic] fraud that was in progress . . . . Attorney Stephan Smith and Anthony J Dunne when drafting and filing the divorce petition had no reasonable ground for believing such falsities they were presenting to Family Court; they had no reasonable ground for vigorously arguing to its truth before Family Court Judge Darlene White not once but on four separate dates . . . . Nevertheless they did it knowing they were committing fraud upon [Soofi] and fraud upon Family Court with sole intention of enriching their firms [sic] account [sic] receivable. [Soofi] alleges herein that Attorney Stephan Smith and Smith family Law Firm chose, for the second time around, knowingly to continue the same fraud scheme with his client except with much more fervor in advancing fraud.”

In response to the complaint, Smith and Smith Family Law filed an anti-SLAPP motion as did Khavari. They all argued the allegations giving rise to each of Soofi’s causes of action arose from the marital dissolution action, which is protected activity under the anti-SLAPP statute. (See § 425.16, subd. (e)(1), (2).) Khavari also contended her actions were covered under the litigation privilege (see Civ. Code, § 47, subd. (b)), and Soofi could not demonstrate the probability of prevailing on the merits.

Soofi opposed both anti-SLAPP motions, arguing that the anti-SLAPP statute did not apply to his claims in the complaint because his allegations were not connected with a public issue. He also insisted he would “probably prevail” on his claims, but he merely referred to the allegations in his complaint as support for his position.

The superior court granted both anti-SLAPP motions, finding “[t]he allegations in plaintiff Rasheed Soofi’s complaint arose out of the petitioning activity of defendant Alieh Mahdis Khavari, by her attorney of record, defendants Stephen Smith and Smith Family Law.” In addition, the court determined that Soofi could not overcome the litigation privilege (Civ. Code, § 47, subd. (b)) to show the probability that he would prevail on the merits at trial.

Soofi timely appealed.

DISCUSSION

I

THE ANTI-SLAPP MOTIONS

A. Appellant’s Burden on Appeal Generally

For any appellant, “[a]ppellate briefs must provide argument and legal authority for the positions taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.’ ” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) “We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

On appeal, the order of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, if the order is correct on any theory, the appellate court will affirm it regardless of the trial court’s reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All intendments and presumptions are made to support the order on matters as to which the record is silent. (Denham, at p. 564.)

B. Standard of Review and Governing Law

California’s anti-SLAPP statute authorizes a court to strike a cause of action arising from a defendant’s free speech or petitioning activities unless the plaintiff shows a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).) To resolve the merits of a section 425.16 special motion to strike, the court undertakes a “two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) The defendant has the burden on the first issue; the plaintiff on the second. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1536 (Kolar).) The trial court “considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based,’ ” and we do the same in our independent review of the trial court’s ruling. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon); Freeman v. Schack (2007) 154 Cal.App.4th 719, 727.)

Soofi claims the superior court erred in both parts of the analysis. We take each in turn.

C. Whether the Lawsuit Falls Within the Scope of the Statute

To make a showing under the first prong, Respondents need only establish a prima facie case that their alleged actions fell into one of the categories listed in section 425.16, subdivision (e). (Flatley v. Mauro (2006) 39 Cal.4th 299, 314 (Flatley).) They may do so by identifying the allegations of protected activity in the complaint and the claims for relief supported by them. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) As such, the analysis of the first prong focuses on the allegations of the complaint.

Here, all the allegations of the complaint are based entirely upon what occurred during the marital dissolution proceeding. Every cause of action is based on conduct Smith, his law firm, or Khavari took in preparing for or litigating the divorce action, including but not limited to, filings with the court and representations made to the court at hearings. Soofi does not assert otherwise. Instead, he makes a more foundational argument. Without citation to California authority that supports his position, Soofi maintains that the anti-SLAPP statute does not apply here because his lawsuit did not concern any actions taken or statements made regarding a matter of public interest. In other words, because the marital dissolution action was between two individuals and did not concern a matter of public interest, Soofi could bring suit based upon what occurred during that litigation without running afoul of the anti-SLAPP statute. We disagree.

Section 425.16 protects a wide range of speech and petitioning conduct, including any “statement or writing made before a . . . judicial proceeding” and “any other conduct in furtherance of the exercise of the constitutional right of petition.” (§ 425.16, subd. (e)(1), (4).) Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute. (See, e.g., Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen) [anti-SLAPP statute protects “communicative conduct such as the filing, funding, and prosecution of a civil action,” including such acts when “committed by attorneys in representing clients in litigation”]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [filing a lawsuit is an exercise of one’s constitutional right of petition]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671-672 [attorneys’ opposition to administrative agency’s efforts to appoint receiver for client was protected by anti-SLAPP statute]; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088 [anti-SLAPP statute protected attorneys from malicious prosecution action against them by parties whom they had sued on behalf of a client].) Indeed, “[t]he anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Kolar, supra, 145 Cal.App.4th at p. 1537.) “[A] party’s litigation-related activities constitute ‘act[s] in furtherance of a person’s right of petition or free speech,’ ” and “courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ ” (Ibid., quoting Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 (Kashian).) A claim arises from litigation-related activities if those activities ” ‘ “form[ ] the basis for” ‘ ” the cause of action. (Equilon, supra, 29 Cal.4th at p. 66.)

In short, there is no restriction in the anti-SLAPP statute that limits its application to complaints that are based on other litigation that only concern an issue of public interest. Here, the operative complaint is completely based upon what Respondents represented to the court in filings and at hearings as well how they litigated the marital dissolution action. It falls squarely within the anti-SLAPP statute.

D. Whether Soofi Can Show a Probability of Success on the Merits

To satisfy the second prong of the anti-SLAPP analysis, ” ‘ “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 the evidence submitted by the plaintiff is credited.’ [Citations.]” [Citation.]’ [Citation.] ‘Thus, plaintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.’ [Citation.] If the plaintiff fails to carry that burden, the cause of action is ‘subject to being stricken under the statute.’ ” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-1478; accord, Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 946-947.)

In determining whether Soofi will probably prevail on the merits, we consider the pleadings and evidentiary submissions on both sides, but we do not weigh credibility or comparative strength of the evidence. (Kashian, supra, 98 Cal.App.4th at p. 906.) A plaintiff can only sustain its burden with admissible evidence. (See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017 [“The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.”].)

Initially, we observe that the superior court determined that Soofi could not show a probability of success on the merits because all of the conduct giving rise to his causes of action fell under the litigation privilege found in Civil Code section 47, subdivision (b). The litigation 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 have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege, or more apt, immunity, applies to all communications with “some relation” to judicial or quasi-judicial proceedings, rendering the communications ” ‘absolutely immune from tort liability.’ ” (Rusheen, supra, 37 Cal.4th at p. 1057.) The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Ibid.; see Silberg, at p. 212 [privilege applies “even though the publication is made outside the courtroom and no function of the court or its officers is involved”]; Spitler v. Children’s Institute International (1992) 11 Cal.App.4th 432, 438 [child care professional’s alleged statements to journalist in preparation of her testimony at the preliminary hearing are shielded].) Immunity “is accorded . . . to witnesses, even where their testimony is allegedly perjured and malicious.” (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 641.) “[T]he privilege is not restricted to the actual parties to the lawsuit but need merely be connected or related to the proceedings,” in other words, there must be “some reasonable connection between the act claimed to be privileged and the legitimate objects of the lawsuit in which that act took place.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529 (Adams).)

The litigation privilege is relevant to prong two of the anti-SLAPP analysis because it “present[s] a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley, supra, 39 Cal.4th at p. 323; see Kashian, supra, 98 Cal.App.4th at pp. 926-927 [plaintiff failed to satisfy prong two because litigation privilege barred his defamation action]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 [same].)

There is significant overlap between conduct protected under section 425.16, subdivision (e) and conduct to which the litigation privilege applies. (See Flatley, supra, 39 Cal.4th at p. 323 [noting that courts look to the litigation privilege as an aid to determining whether conduct is protected by the anti-SLAPP statute].) Both statutes “protect the right of litigants to ‘ “the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.” ‘ ” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) “Any doubt as to whether the privilege applies is resolved in favor of applying it.” (Adams, supra, 2 Cal.App.4th at p. 529.)

Here, as we discussed ante, there are no allegations of wrongdoing on behalf of Respondents that are not based on actions taken or statements made in preparation for or during the marital dissolution action. Soofi does not really argue otherwise. Nevertheless, he claims an exception to the litigation privilege, as set forth in Civil Code section 47, subdivision (b)(1), is pertinent here. Soofi misreads the statute.

Civil Code section 47, subdivision (b)(1), provides:

“(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:

“(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution . . . . made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.”

This exception does not apply here because the alleged statements by Respondents in the dissolution proceedings related to Soofi, who was either seeking relief or against whom relief was sought. (See Holland v. Jones (2012) 210 Cal.App.4th 378, 381.) The exception to the litigation privilege “may apply only to statements made in a marital dissolution proceeding by or against a third party, not under the circumstances of this case when the statements are made against a party to the action.” (Ibid.) As such, because all of the alleged fraudulent statements concerned Soofi and/or his financial status and Soofi was a party to the marital dissolution action, the exception to the litigation privilege does not apply. The superior court did not err in finding that Soofi could not overcome the litigation privilege.

In the alternative, even if the litigation privilege did not apply to the causes of action in the operative complaint here, Soofi still has not satisfied his burden of showing a probability of success on the merits. He has not cited to any portion of the record where he submitted evidence to oppose Respondents’ anti-SLAPP motions. Our independent review of the record has uncovered none. Instead, Soofi simply refers this court to the allegations in his complaint and the exhibits attached to his complaint. The allegations in the complaint, however, are not evidence. (See Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672-673.) Without providing any admissible evidence, Soofi has not shown the probability of prevailing on his claim.

DISPOSITION

The order is affirmed. Smith and Smith Family Law are entitled to their costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.