Case Number: BC679504 Hearing Date: May 02, 2018 Dept: 47

Carlos Duenas v. Hyun Park a.k.a. Eugene Park, et al.

ANTI-SLAPP SPECIAL MOTION TO STRIKE (CCP § 425.16)

MOVING PARTY: Defendant Iolline Wallace

RESPONDING PARTY(S): Plaintiff Carlos Duenas

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Park obtained a default judgment in LASC Case No. BC557124 without ever having served Plaintiff. Plaintiff alleges that Defendant Wallace conspired with the Park Defendants to sue Plaintiff for housing discrimination to leverage the payment of claims via settlement. As part of the settlement of the discrimination lawsuit (also asserted against Park), Defendant Park assigned his default judgment in LASC Case No. BC557124 to Defendant Wallace.

Defendant Iolline Wallace brings an anti-SLAPP special motion to strike.

TENTATIVE RULING:

Defendant Iolline Wallace’s anti-SLAPP special motion to strike the first and only cause of action asserted against Defendant Duenas and request for damages is GRANTED. The action remains pending against Defendants Hyun Park a.k.a. Eugene Park and Phoebe Park.

DISCUSSION:

Anti-SLAPP Special Motion To Strike (CCP § 425.16).

Request For Judicial Notice

Defendant’s request that the Court take judicial notice of the court records in LASC Case Nos. BC557124 and BC599031 is GRANTED per Evid. Code § 452(d)(court records).

Analysis

Defendant Iolline Wallace brings an anti-SLAPP special motion to strike.

Although Plaintiff is correct that Defendant filed this special motion to strike 6 days after the deadline set forth in CCP § 425.16 (f), the Court exercises its discretion pursuant to that subsection to hear the special motion to strike.

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. This is a two-step process. First, the defendant must show 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.” CCP § 425.16(b)(1). Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. CCP § 425.16(b)(3). The defendant has the burden on the first issue, and the plaintiff on the second. Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919. In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” CCP § 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.

The Defendant’s act underlying the cause of action must itself have been in furtherance of the right of petition or free speech. City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78. The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16, subdivision (e) categories: (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. CCP § 425.16(e); City of Cotati, supra, 29 Cal.4th at 78; see also Equilon Enterprises, LLC, supra, 29 Cal.4th at 67.

If such a showing is made, the burden shifts to plaintiff to show a probability of prevailing on the claim. CCP § 425.16(b)(1). To establish a probability of prevailing on the merits, 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. Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548. In making this assessment, the Court must accept as true the evidence favorable to the plaintiff. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212. The plaintiff needs only to establish that his or her claim has minimal merit (Navellier v. Sletten (2002) 29 Cal.4th 82, 89) to avoid being stricken as a SLAPP. Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at 738.

“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ (Citation omitted.)” Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.

1. Re: Whether the Causes of Action Are Subject To Being Stricken Pursuant to CCP § 425.16.

A. Third Cause of Action (Intentional Misrepresentation); Fourth Cause of Action (Negligent Misrepresentation).

The Complaint alleges a single cause of action for “fraud,” but the Complaint is captioned as one to set aside default judgment on grounds of extrinsic fraud. The gist of this cause of action is not malicious prosecution, as Defendant argues in the motion. The relief sought by the Complaint is for a decree vacating the default judgment entered in the first case, BC557124, Hyun Park v. Carlos Duenas, on the ground that the judgment is void due to lack of personal jurisdiction in that Plaintiff Duenas was never served in BC557124 and he never received notice of that lawsuit. See Complaint at ¶¶ 12, 20, 30, 31. It is this default judgment against Plaintiff Duenas which was assigned to Iolline Wallace, which Wallace is attempting to enforce against Duenas. Complaint, ¶¶ 27 – 29, 32; Prayer for Relief, ¶ A.

As against moving party/defendant Wallace, the action she allegedly took against Plaintiff Duenas is seeking to enforce the assigned default judgment in BC557124 against Plaintiff Duenas. This court finds that the activity at issue is subject to being stricken pursuant to CCP § 425.16.

Acts necessary to enforce a judgment which was obtained through written or oral statements made before a judicial proceeding or in connection with an issue under consideration by a judicial body (here, the default judgment obtained in BC557124 which Plaintiff Duenas alleges was obtained by making misrepresentations on the proof of service and default prove-up documents) come within the scope of the anti-SLAPP statute as acts in furtherance of the right of petition. See, e.g., Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062-65 (discussing post-judgment enforcement activities within the context of the litigation privilege in Civil Code § 47[1]).

Accordingly, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his claim against Defendant Wallace.[2]

2. Re: Whether Plaintiff Has Established That There Is A Probability He Will Prevail On The Claims – CCP ¶ 425.16(b)(1).

[A] void judgment may be attacked by a separate action, without time limit. (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 186, p. 587, & § 203, pp. 601-602.) There is no reason to force the defendants to such an expense when the determinative legal issue has already been correctly decided by the trial court.

Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444 (bold emphasis added).

“It is hornbook law that a judgment rendered without the notice required by due process is void. (E.g., World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 291 [62 L.Ed.2d 490, 100 S.Ct. 559].) And it is equally hornbook law that a void judgment may be set aside at any time. (E.g., People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661 [16 Cal. Rptr. 3d 76, 93 P.3d 1020].)” Adoption of B.C. (2011) 195 Cal.App.4th 913, 925.

“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time.” [Citation.]’ ” (Citation omitted.) The court went on to say, “ ‘A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.’ [Citation.]” (Id. at p. 565.)

Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 149 (bold emphasis and underlining added).

Although courts have often also distinguished between a judgment void on its face, i.e., when the defects appear without going outside the record or judgment roll, versus a judgment shown by extrinsic evidence to be invalid for lack of jurisdiction, the latter is still a void judgment with all the same attributes of a judgment void on its face. (Citation omitted.) “Whether the want of jurisdiction appears on the face of the judgment or is shown by evidence aliunde, in either case the judgment is for all purposes a nullity—past, present and future. [Citation.] ‘… All acts performed under it and all claims flowing out of it are void … [.] No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality.’ [Citation.]” (Id. at p. 732.) In such cases, the judgment or order is wholly void, although described as “voidable” because court action is required to determine the voidness as a matter of law, and is distinguishable from those judgments merely voidable due to being in excess of the court’s jurisdiction. (Ibid.) Consequently, once proof is made that the judgment is void based on extrinsic evidence, the judgment is said to be equally ineffective and unenforceable as if the judgment were void on its face because it violates constitutional due process. (Citation omitted.)

Consistent with these general principles, “[a] judgment is void for lack of jurisdiction of the person where there is no proper service of process on or appearance by a party to the proceedings.” (Citation omitted.) Knowledge by a defendant of an action will not satisfy the requirement of adequate service of a summons and complaint. (Citations omitted.) Because the “total absence of notice in any form cannot comport with the requirements of due process” (citation omitted), it has been said that a judgment of a court lacking such personal jurisdiction is a violation of due process (citation omitted), and that “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute [to establish personal jurisdiction] is void.” (Citation omitted.)

County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226-1227 (bold emphasis and underlining added).

Here, Plaintiff made the mistake of failing to submit any evidence whatsoever to demonstrate a probability of prevailing on the claims. To do so, Plaintiff simply needed to submit a declaration that he was never served with the summons and complaint in BC557124, and never received notice of that lawsuit, such that the court did not acquire personal jurisdiction over Plaintiff in BC557124. However, Plaintiff did not submit any evidence in his opposition.

In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. (Citation omitted.) Thus, declarations may not be based upon “information and belief” (citation omitted) and documents submitted without the proper foundation are not to be considered. (Citation omitted.)

The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court’s responsibility is to accept as true the evidence favorable to the plaintiff (citation omitted) and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Citations omitted.) The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward. (Citation omitted.)

HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (bold emphasis and underlining added).

Accordingly, Plaintiff has failed to meet his burden on the second prong of the anti-SLAPP analysis.

It is important to distinguish between intrinsic fraud versus extrinsic fraud in the context of setting aside a judgment as void. Intrinsic fraud—misrepresentations made before a court to obtain a judgment, such as Plaintiff alleges at ¶¶ 7 – 11, 15 – 19 of the Complaint—are insufficient to render a judgment void. On other hand, extrinsic fraud—where a party such as Plaintiff is precluded from participating in the proceeding due to lack of notice (i.e., was never served with the summons and complaint and never received notice of the lawsuit, such as Plaintiff alleges at ¶ 20 of the Complaint):

Taylor v. Taylor, 192 Cal. 71 [218 P. 756, 51 A.L.R. 1074] and Milekovich v. Quinn, 40 Cal.App. 537 [181 P. 256] as well as Howard v. Howard, 27 Cal.2d 319 [163 P.2d 439], recognize that when equitable relief from a final judgment is sought, it makes an important difference whether the fraud or mistake is intrinsic or extrinsic to the issues involved in the case in which the judgment was entered. The public policy underlying the principle of res judicata that there must be an end to litigation requires that the issues involved in a case be set at rest by a final judgment, even though a party has persuaded the court or the jury by false allegations supported by perjured testimony. This policy must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which fully to present his case. Thus, equitable relief will be denied where it is sought to relitigate an issue involved in the former proceeding on the ground that allegations or proof of either party was fraudulent or based on mistake, but such relief may be granted if the party seeking it was precluded by fraud or the mistake of the other party from participating in the proceeding or from fully presenting his case. ([*19] Citations omitted.) The terms “intrinsic” and “extrinsic” fraud or mistake are generally accepted as appropriate to describe the two different categories of cases to which these policies of the law apply (Freeman, ibid., p. 2568). They do not constitute, however, a simple and infallible formula to determine whether in a given case the facts surrounding the fraud or mistake warrant equitable relief from a judgment. (Larrabee v. Tracy, 21 Cal.2d 645, 649 [134 P.2d 265]; see, Freeman, ibid., p. 2570.) It is necessary to examine the facts in the light of the policy that a party who failed to assemble all his evidence at the trial should not be privileged to relitigate a case, as well as the policy permitting a party to seek relief from a judgment entered in a proceeding in which he was deprived of a fair opportunity fully to present his case.

Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 18-19 (bold emphasis and underlining added).

These cases denying a tort remedy for the presentation of false evidence or the suppression of evidence rest on a concern for the finality of adjudication. This same concern underlies another line of cases that forbid direct or collateral attack on a judgment on the ground that evidence was falsified, concealed, or suppressed. After the time for seeking a new trial has expired and any appeals have been exhausted, a final judgment may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified; in the language of the cases, such fraud is “intrinsic” rather than “extrinsic.” (Citations omitted.) Similarly, under the doctrines of res judicata and collateral estoppel, a judgment may not be collaterally attacked on the ground that evidence was falsified or destroyed. (Citations omitted.)

As we explained more than a century ago, the rule against vacating judgments on the ground of false evidence or other intrinsic fraud serves the important interest of finality in adjudication: “[W]e think it is settled beyond [*11] controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is, that there must be an end of litigation; and when parties have once submitted a matter . . . for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive . . . . [P] . . . [W]hen [the aggrieved party] has a trial, he must be prepared to meet and expose perjury then and there. . . . The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice . . . .” (Citations omitted.)

Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10-11 (bold emphasis and underlining added).

The anti-SLAPP special motion to strike the first and only cause of action asserted against Defendant Duenas and request for damages relating thereto is GRANTED. The action remains pending against Defendants Hyun Park a.k.a. Eugene Park and Phoebe Park.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 2, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1]

[A]lthough section 425.16 and Civil Code section 47, subdivision (b) are not coextensive and are substantively different, “the two statutes serve similar policy interests, and courts ‘look[] to the litigation privilege [Civ. Code, § 47] as an aid in construing the scope of section 425.16, subdivision [(e)(2)] with respect to the first step of the two-step anti-SLAPP inquiry … .’ (Flatley[ v. Mauro], supra, 39 Cal.4th at p. 323; see Briggs, supra, 19 Cal.4th at p. 1115; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 [72 Cal.Rptr.3d 847]; Rohde[ v. Wolf], supra, 154 Cal.App.4th at pp. 35–36; see also Healy v. Tuscany Hills Landscape & Recreation Corp.[, supra,] 137 Cal.App.4th [at p.] 5 … [‘Both section 425.16 and Civil Code section 47 are construed broadly, to 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.’ ” [Citations.]’].)” (Neville v. Chudacoff, supra, 160 Cal.App.4th at pp. 1262–1263.)

Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965-66 .

[2] As will be discussed infra., Plaintiff appears to be under the gross misunderstanding that the Defendant bears such a burden of proof in an anti-SLAPP motion. (“Wallace does not make any attempt in her moving papers to show why Duenas will not be able to succeed in defending himself against the allegations in Hyun Park’s complaint.” Plaintiff’s Opposition, p. 3, lines 23-25). This may be true. However, the burden is upon the Plaintiff, not the Defendant to demonstrate a reasonable probability of success in the case.