Filed 10/24/19 Torabi v. Pezeshk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RAMIN TORABI,

Plaintiff and Respondent,

v.

BANAFSHEH PEZESHK,

Defendant and Appellant.

D074264

(Super. Ct. No. 37-2017-00050517- CU-BC-NC )

APPEAL from an order of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.

Suppa, Trucchi & Henein and Samy S. Henein for Defendant and Appellant.

Law Office of Richard Weinthal and Richard W. Weinthal for Plaintiff and Respondent.

Banafsheh Pezeshk appeals an order granting in part and denying in part her motion to strike Ramin Torabi’s complaint under Code of Civil Procedure, section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Torabi borrowed $42,000 from Pezeshk. Around January 2, 2007, Torabi paid Pezeshk $30,000 toward the loan. In 2008, Torabi paid Pezeshk an additional $15,000 as further repayment of the loan.

In 2012, Torabi left the United States for a “short period of time.” While he was out of the country, Pezeshk brought suit against Torabi, alleging that Torabi never repaid the $42,000 loan. Pezeshk served Torabi’s tenant and then “forced” the tenant to pay her $5,000. Torabi reimbursed his tenant the $5,000.

Pezeshk ultimately obtained a default judgment against Torabi. After returning to California, Torabi and Pezeshk entered into a written settlement agreement whereby Torabi would pay Pezeshk $27,000 to satisfy the default judgment.

Torabi subsequently paid Pezeshk $20,000 as part of the written settlement agreement. However, Pezeshk continued to “pursue [Torabi’s] assets to satisfy” the default judgment. To this end, Pezeshk recorded a lien on Torabi’s condominium and recorded an abstract of judgment against Torabi.

On July 10, 2017, Torabi paid $72,469.39 to satisfy the lien on his condominium. On September 12, 2017, Pezeshk paid Torabi $18,186.84. According to Torabi, Pezeshk owes him an additional $82,282.55 “for the unnecessary sums of money that [Torabi] had to pay due to [Pezeshk’s] actions.”

Torabi filed a complaint against Pezeshk alleging causes of action for breach of contract, wrongful use of civil proceedings, abuse of process, and unjust enrichment.

In response to the complaint, Pezeshk filed an anti-SLAPP motion. Pezeshk argued that the first two causes of action (breach of contract and wrongful use of civil proceedings) were actually malicious prosecution claims. She then pointed out that a claim for malicious prosecution requires three elements: (1) the defendant brought or continued to pursue a claim without objective probable cause; (2) the claim was pursued by the defendant with subjective malice; and (3) the underlying action was ultimately resolved in the plaintiff’s favor. (See Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1398.) Pezeshk asserted that the underlying action did not result in a termination favorable to Torabi because Pezeshk obtained a default judgment against him.

As to the third and fourth causes of action (abuse of process and unjust enrichment), Pezeshk argued the claims were barred by the litigation privilege set forth in Civil Code, section 47, subdivision (b). She emphasized that the third cause of action alleged that Pezeshk filed a writ of execution in her superior court case against Torabi and “intentionally used this legal procedure to harass” him. Pezeshk spent the lion’s share of this argument focused on the third cause of action. At the end of her argument, she offered a single sentence as to the unjust enrichment claim: “Furthermore, the unjust enrichment claim is likewise barred by the litigation privilege since it is based on the alleged retention of monies obtained via execution of the judgment.”

Torabi opposed the anti-SLAPP motion, contending that Pezeshk did not show that Torabi’s complaint was based on protected activity and Pezeshk did not present any evidence. Torabi also insisted he could demonstrate a probability of prevailing on his claims.

Regarding the unjust enrichment claim, Torabi maintained there was no authority establishing that the cause of action was barred by the litigation privilege. Moreover, he insisted he would prevail on the merits of the claim. To this end, he offered a self-declaration wherein he declared that he borrowed $42,000 from Pezeshk; he paid her $30,000 on January 2, 2007; paid her an additional $15,000 in 2008; Pezeshk was aware Torabi was out of the country when she filed suit against him; in her suit, Pezeshk alleged that Torabi never repaid the $42,000 loan; Pezeshk “forced” Torabi’s tenant to pay her $5,000 and Torabi reimbursed his tenant that amount; Pezeshk obtained a default judgment against Torabi; Torabi entered into a settlement agreement wherein he would pay Pezeshk $27,000 to satisfy the default judgment; he paid Pezeshk $20,000 under the settlement agreement; Pezeshk “put a lien on [Torabi’s] condominium and recorded an abstract of judgment against” him; Torabi paid $72,469.39 to satisfy the lien; Pezeshk paid Torabi $18,186.84; and Torabi believes Pezeshk still owes him $82,282.55. In addition, Torabi attached checks and other documents evidencing payments made and detailing certain aspects of the financial relationship between Torabi and Pezeshk.

Pezeshk filed a reply in support of her motion to strike, which primarily reiterated the arguments in her motion.

The superior court granted in part and denied in part Pezeshk’s anti-SLAPP motion. The court found that Pezeshk satisfied her burden of establishing that Torabi’s complaint arose from Pezeshk’s free speech or petition activity and was entitled to protection under section 425.16, subdivision (e). The court further determined that the first two causes of action assert malicious prosecution claims, and Torabi did not establish he could satisfy the elements of such a claim. Therefore, he did not show a probability of success on the merits as to the first and second causes of action. Additionally, the court found that the third cause of action for abuse of process was barred by the litigation privilege codified in Civil Code section 47, subdivision (b). However, the court concluded Torabi established the probability of success on the merits of the unjust enrichment claim because Torabi provided evidence showing payments were made to Pezeshk. The court also awarded Pezeshk $4,950 in attorney fees as the prevailing party under the anti-SLAPP statute. (See § 425.16, subd. (c)(1).)

Pezeshk timely appealed.

DISCUSSION

I

THE ANTI-SLAPP MOTION

A. Anti-SLAPP Law and Standard of Review

“A SLAPP suit is ‘a meritless lawsuit “filed primarily to chill the defendant’s exercise of First Amendment rights.” ‘ [Citation.] California’s anti-SLAPP statute allows a defendant to move to dismiss ‘certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.’ [Citation.]” (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613.) Per the anti-SLAPP statute: “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).)

A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) This second step is described as a ” ‘summary-judgment-like procedure.’ ” (Ibid.) Only a claim that satisfies both prongs—i.e., that arises from protected activity and lacks even minimal merit—will be stricken under section 425.16. (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 591.)

We review rulings on anti-SLAPP motions de novo. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727.) We also consider the pleadings, and supporting and opposing affidavits, ” ‘accept[ing] as true the evidence favorable to the plaintiff [citation] and evaluat[ing] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ ” (Ibid.)

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

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

Section 425.16, subdivision (e), clarifies what speech constitutes an ” ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ . . . .” Such speech includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)

Below, the superior court found the allegations in the complaint did arise from a ” ‘written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.’ ” (§ 425.16, subd. (e)(1).) Not surprisingly, Pezeshk does not take issue with the superior court’s conclusion on this issue. She points out that the claim for unjust enrichment arises out of her alleged improper filing of her lawsuit against Torabi as well as her subsequent efforts to enforce the default judgment. Specifically, Pezeshk emphasizes the following allegations in the operative complaint:

“[Pezeshk] received the benefit of the original repayment of the loan, then received the benefit of five thousand dollars from [Torabi’s] tenant after filing of the State Court Case. [Pezeshk] then received the benefit and unjust retention at the expense of [Torabi] by having [Torabi] pay twenty thousand dollars to satisfy the default judgment in the State Court Case, which [Pezeshk] filed against [Torabi] knowing that [Torabi] was out of the Country. [Pezeshk] then received the benefit of another seventy-two thousand four hundred sixty-nine dollars to remove the lien on his real property. [¶] [Pezeshk] was in receipt of the benefit of the monetary gain and unjust retention of the monetary gain at the expense of [Torabi].”

Pezeshk argues that “[t]hese allegations are just another way of saying that the debt that was the subject of the underlying lawsuit was not owed, and that [Pezeshk] was unjustly enriched because she filed suit and enforced the ensuing judgment.” Thus, Pezeshk maintains it is the “constitutionally protected activity of filing the lawsuit and enforcing the judgment” that forms the “gravamen of the alleged unjust enrichment” cause of action.

Torabi’s response to Pezeshk’s argument here is unpersuasive. He correctly notes that, generally, it is not enough for Pezeshk to show that Torabi’s complaint was “triggered by” or filed in response to or retaliation for her exercise of the right to petition. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) We agree with Torabi that the mere fact that he filed his suit after protected activity occurred does not mean his suit arose from that activity. (Id. at pp. 76-77.) Yet, this accurate statement of the law is not of the moment here. Instead, we are concerned with the allegations of Torabi’s complaint. (See Baral, supra, 1 Cal.5th at p. 396.)

In the respondent’s brief, when Torabi discusses the allegations of his complaint, he actually supports Pezeshk’s contention in the instant matter. For example, in describing his claim for unjust enrichment, Torabi asserts the cause of action “encompasses the $3000 loan overpayment, the $5000 improperly collected from plaintiff’s tenant, and funds paid to satisfy the improperly obtained default judgment in the state court case.” Therefore, Torabi does not dispute that at least a portion of the unjust enrichment claim is based on protected activity, i.e., Pezeshk’s lawsuit against him.

Torabi also argues that Pezeshk “fail[ed] to provide evidence in support of . . . her mistaken contention that . . . Torabi’s claims would infringe her constitutional right of petition.” But the first prong of our anti-SLAPP analysis is not concerned with evidence. Rather, we focus on the allegations of the complaint and whether they arise out of protected activity. (See Baral, supra, 1 Cal.5th at p. 396.)

Here, Torabi’s fourth cause of action is based on allegations of both protected and unprotected activity. The protected activity is the filing of the Pezeshk’s lawsuit and her attempts to enforce the default judgment. The unprotected activity would be the prelitigation repayment of the $42,000. “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral, supra, 1 Cal.5th at p. 396.) Consequently, we conclude Pezeshk has satisfied her burden under the first prong of our anti-SLAPP analysis, and we move on to the second prong.

C. Probability of Success on the Merits

The second prong of the statute deals with whether the plaintiff has “demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) For purposes of an anti-SLAPP motion, “[t]he 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 . . . .” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) A plaintiff “need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) In this sense, the anti-SLAPP statute operates like a “motion for summary judgment in ‘reverse.’ ” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719; see Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062 [“a standard ‘similar to that employed in determining nonsuit, directed verdict or summary judgment motions’ “]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 [same]; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317 [“plaintiff’s burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment”].) With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit. (Navellier, at p. 89.)

Torabi’s cause of action for unjust enrichment requires him to establish that Pezeshk received a benefit at his expense and that it would be unjust for her to retain that benefit. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662-1663.)

Pezeshk makes two arguments that Torabi cannot prevail on the merits. First, she argues that unjust enrichment is not a cause of action. In making this argument, Pezeshk acknowledges that California courts are split regarding whether unjust enrichment “is a stand-alone cause of action.” (Compare Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939 [concluding a cause of action for unjust enrichment exists] with McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [noting unjust enrichment is not a cause of action].) However, Pezeshk did not make this argument below. She raises it for the first time on appeal. Although we retain discretion to address a purely legal issue raised under certain circumstances for the first time on appeal (see Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 5-7), we decline to exercise that discretion here. Below, Pezeshk argued that the unjust enrichment cause of action should be stricken under the anti-SLAPP statute. We address that issue here and eschew Pezeshk’s invitation on appeal to wade into whether unjust enrichment is a stand alone cause of action under California law.

Pezeshk’s second argument is that Torabi cannot show a probability of prevailing on the unjust enrichment claim because the cause of action is barred under the litigation privilege codified by Civil Code section 47, subdivision (b). We disagree.

Civil Code section 47 defines “[a] privileged publication or broadcast,” in part, as one made in a “judicial proceeding.” (Civ. Code, § 47, subd. (b).) Pezeshk claims that because a portion of the unjust enrichment claim takes issue with her filing of a complaint against Torabi and then attempting to enforce the default judgment, the cause of action is barred under Civil Code section 47, subdivision (b). In support of this argument, she relies on four cases wherein courts found the litigation privileged barred a cause of action for abuse of process. (See Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 65-66; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134-135; Brown v. Kennard (2001) 94 Cal.App.4th 40, 49-50; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1064-1065.) However, none of these cases address a claim for unjust enrichment or otherwise deal with a cause of action seeking restitution. Pezeshk offers no cogent, persuasive argument why we should extend those abuse of process cases to the instant matter. And we see no reason to do so on the record before us.

Concluding that the litigation privilege does not bar Torabi’s fourth cause of action, we evaluate whether Torabi has presented sufficient evidence to show the probability that he will succeed on the merits. Torabi submitted his declaration and accompanying exhibits that show he repaid Pezeshk more than the amount originally borrowed. This evidence also shows that Torabi paid additional amounts in connection with Pezeshk’s lawsuit against him, but after making those payments, Pezeshk paid Torabi nearly $20,000. Torabi claims that payment evidences Pezeshk’s acknowledgment that she owed him money for his overpayments. Torabi further asserts that Pezeshk owes him additional funds based on the same overpayments. Pezeshk submitted no evidence to contradict or otherwise challenge Torabi’s claim. She also does not offer any explanation for her payment of $18,186.84. Accordingly, we agree with the superior court that Torabi has satisfied his burden under the second prong of the anti-SLAPP analysis. He has shown his claim has at least minimal merit and should not be stricken under section 425.16. (See Navellier, supra, 29 Cal.4th at p. 89.) The superior court did not err.

DISPOSITION

The order is affirmed. In the interest of justice, the parties are to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

GUERRERO, J.