Filed 11/12/19 Johnson v. Pawnee Leasing Corp. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

TERRIL W. JOHNSON II,

Plaintiff and Appellant,

v.

PAWNEE LEASING CORPORATION et al.,

Defendants and Respondents.

E071606

(Super.Ct.No. RIC1808641)

OPINION

APPEAL from the Superior Court of Riverside County. Randall S. Stamen, Judge. Affirmed.

Terril W. Johnson II, in pro. per., for Plaintiff and Appellant.

Ferns Adams & Associates and Laurel A. Adams for Defendants and Respondents.

Plaintiff and appellant Terril W. Johnson II (Johnson) sued defendants and respondents Pawnee Leasing Corporation (Pawnee) and Katherine Kane (Kane). Johnson alleged (1) fraud upon the court; (2) a fraudulent business act (Bus. & Prof. Code, § 17200); and (3) that Kane violated her duties as an attorney (Bus. & Prof. Code, § 6068). Pawnee and Kane brought an anti-SLAPP motion. (Code Civ. Proc., § 425.16.) The trial court granted the anti-SLAPP motion. Johnson contends (1) the trial court erred by granting the anti-SLAPP motion; and (2) the anti-SLAPP motion was untimely. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. FIRST AMENDED COMPLAINT

The facts in this subsection are taken from Johnson’s first amended complaint. Leaseprocess and World Black RYU Martial Arts Organization Inc. (RYU Martial Arts) had a contract. Johnson was a guarantor of the contract. On February 3, 2014, the contract was dissolved for the purpose of ending Johnson’s guaranty. A new contract between Leaseprocess and a different business, Black RYU World Wide, Inc., was created (RYU World Wide).

Pawnee claimed it purchased Leaseprocess’s contract rights in the contract with RYU World Wide. On May 31, 2015, Pawnee filed a complaint against RYU World Wide and Johnson alleging RYU World Wide defaulted on the payments due under the contract. On September 30, 2016, Commissioner David E. Gregory found in favor of Pawnee. The judgment was filed on October 20, 2016. Johnson filed a notice of appeal and exhausted his appellate remedies. Johnson filed a motion to vacate the judgment and a hearing was held on the motion.

In the cause of action for fraud upon the court, Johnson alleged that, in the trial before Commissioner Gregory, RYU World Wide and Johnson were the defendants, but “Pawnee only entered into evidence a contract assignment for Lessee [RYU Martial Arts].” (All caps. omitted.) Johnson alleged that because Pawnee’s rights related to the contract with RYU Martial Arts, Pawnee lacked standing to sue Johnson and RYU World Wide. Johnson asserted Pawnee only had a claim against RYU Martial Arts.

Johnson alleged Pawnee and its attorney, Kane, committed fraud on the court, in the trial before Commissioner Gregory, by “using false documents to the point that a[n] impartial adjudication could not happen.” Johnson alleged the false documents consisted of (1) Pawnee’s complaint in which it alleged it had rights related to the contract with RYU World Wide; (2) a personal guaranty by Johnson for RYU World Wide; and (3) an assignment to Pawnee of Leaseprocess’s rights in the contract with RYU World Wide.

In the Business and Professions Code section 17200 cause of action, Johnson cited law and concluded, “[Pawnee and Kane] have impeded [Johnson’s] ability to conduct business in general.” In the Business and Professions Code section 6068 cause of action, Johnson alleged “Kane was the attorney for Defendant Pawnee Leasing. During her representation she attached falsified documents to their complaint, attained a witness that committed perjury, and committed perjury herself.” In his prayer for relief, Johnson requested that the judgment entered by Commissioner Gregory be deemed void.

Johnson attached Pawnee’s May 2015 complaint to his first amended complaint. Attached to Pawnee’s complaint was (1) a contract; and (2) a contract addendum. The contract was dated February 3, 2014, and was between Leaseprocess and RYU Martial Arts. On the front page of the contract was a section titled “Guaranty.” Johnson’s signature appears in the “Guaranty” section. “Schedule A” of the contract reflects RYU Martial Arts leased “rings and cages 20 ft circle cage” and “rings and cages catwalk.” (All caps. omitted.) Johnson’s signature was on “Schedule A” as president of RYU Martial Arts. The addendum was dated February 4, 2014 and read, “Lessee[’s] legal business name shall read: [¶] Black RYU World Wide Inc.” Johnson’s signature appears on the addendum. (All caps. omitted.)

B. ANTI-SLAPP MOTION

Pawnee and Kane (defendants) brought an anti-SLAPP motion. Defendants asserted Johnson’s lawsuit concerned protected activity because Johnson’s allegations centered on defendants’ actions in Pawnee’s lawsuit before Commissioner Gregory. Defendants argued, “Clearly they were in the act of petitioning a court, a constitutionally protected activity.”

In regard to Johnson’s probability of prevailing, defendants asserted fraud could not be proven “because all of the evidence and arguments were made IN OPEN COURT.” Defendants also cited Civil Code section 47, which concerns privileged speech, and concluded its interaction with the anti-SLAPP statute “is often challenging to decipher in the limited time that is afforded to an anti-SLAPP motion.”

C. OPPOSITION

Johnson opposed defendants’ anti-SLAPP motion. Johnson asserted the motion should be denied because it was untimely. Johnson’s summons and complaint were served on Pawnee on May 17, 2018, and on Kane on May 21, 2018. Defendants filed their anti-SLAPP motion on August 1, 2018, which was 76 days after service of the summons and complaint. Johnson asserted defendants missed the 60-day deadline for an anti-SLAPP motion.

Johnson asserted he had a probability of prevailing on the merits of his lawsuit because Pawnee only succeeded to the rights of Leaseprocess’s contract with RYU Martial Arts. As a result, Pawnee lacked standing to sue Johnson and RYU World Wide. Johnson attached his declaration to his opposition. In the declaration, Johnson declared, “Pawnee attempted to ‘carry over’ my guarantor status from the original contract to the new one. This is not permitted by law. I would have to sign a new contract making me the guarantor all over again.”

D. REPLY

Defendants asserted their anti-SLAPP motion was timely because, on June 24, Johnson informed defendants of his intent to file a first amended complaint. Defendants asserted that if they filed an anti-SLAPP motion to the original complaint, then it would have been rendered moot by the filing of the first amended complaint.

In regard to the protected activity prong, defendants asserted, “The Defendants are being sued for statements made and conduct during the trial, which clearly falls into the category of protected conduct under CCP § 425.16.” In regard to the probability of prevailing prong, the defendants asserted, “This is clearly a frivolous lawsuit.” Defendants contended, “He has no information, evidence, fact or argument that has not been raised before and considered before.”

E. TENTATIVE RULING

The trial court issued a tentative ruling. The court wrote that it would consider the merits of the anti-SLAPP motion. The court explained that when Johnson and defendants met and conferred regarding the original complaint, defendants informed Johnson that they would be filing an anti-SLAPP motion and/or demurrer. Johnson replied that he would file a first amended complaint to remedy the problems. The anti-SLAPP motion was filed within 30 days of Johnson filing the first amended complaint. The trial court concluded defendants provided an adequate explanation of their delay in filing the anti-SLAPP motion, and Johnson had sufficient time to oppose the motion on its merits.

The trial court tentatively ruled that defendants met their burden of proving Johnson’s complaint arose from defendants’ protected activity. The trial court explained that Johnson’s lawsuit “is predicated on the statements made by Defendants and Commissioner Gregory during trial of the Prior Action.” (§ 425.16, subd. (e).)

The trial court tentatively concluded Johnson failed to demonstrate a probability of prevailing on the merits of his lawsuit. The trial court explained that the contract addendum reflected the only change made to the contract was that RYU World Wide was substituted for RYU Martial Arts—Johnson’s guaranty remained intact. Therefore, the trial court reasoned that Johnson had not established a prima facie case of fraud or violation of an attorney’s duties.

F. HEARING

The trial court held a hearing on defendants’ anti-SLAPP motion. Johnson asserted the filing of the first amended complaint did not restart the 60-day deadline for filing an anti-SLAPP motion. The court explained that it had discretion to consider an untimely motion. Johnson responded that defendants failed to argue that the trial court had discretion to consider an untimely motion, so it appeared the trial court was “essentially, saving them at this point.”

In regard to the merits, Johnson asserted, “There was no guarantee language within the addendum, anyway. [¶] So even if we read this as it reads, it still has nothing to do with me as a guarantor. It has to do with the lease that was never even agreed upon by [RYU World Wide] in regard to that.” Johnson continued, explaining that the name change in the contract addendum “was a party change, at which point, there was a new contract and a new lease, which the statute of fraud says I did not guarantee that, because I did not give a writing to that. . . . Nobody wants to recognize that. Everybody wants to carry it over, in which neither case says you can’t carry over a guarantee to a whole other entity.” The trial court granted the anti-SLAPP motion, and made the tentative ruling the ruling of the court.

DISCUSSION

A. MERITS OF THE ANTI-SLAPP MOTION

1. CONTENTION

Johnson contends the trial court erred by granting the anti-SLAPP motion because Johnson’s “claim does not meet the elements of a SLAPP case.”

2. LAW AND STANDARD OF REVIEW

“The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. 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. [Our high court has] described this second step as a ‘summary-judgment-like procedure.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted.) We apply the de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

3. PROTECTED ACTIVITY

We examine whether the complaint concerns a protected activity. A protected activity includes “any 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).)

In Johnson’s first amended complaint, he alleged defendants defrauded Commissioner Gregory by (1) Kane perjuring herself; (2) Kane acquiring a witness who perjured himself; and (3) filing false documents including (a) Johnson’s personal guaranty for RYU World Wide; and (b) an assignment to Pawnee of Leaseprocess’s rights in the contract with RYU World Wide.

All of Johnson’s allegations of fraud arise from actions taken in Pawnee’s lawsuit against Johnson and RYU Worldwide. Therefore, Johnson’s lawsuit arises from “written or oral statement[s] or writing[s] made before a . . . judicial proceeding.” (§ 425.16, subd. (e)(1).) As a result, we conclude Johnson’s first amended complaint arises from defendants’ protected activity.

4. LIKELIHOOD OF PREVAILING ON THE MERITS

We now turn to the second-prong of the anti-SLAPP analysis, which concerns Johnson’s likelihood of prevailing on the merits.

The second-prong is akin to a summary judgment analysis. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) “ ‘The court does not weigh evidence or resolve conflicting factual claims. [Our] inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. [We] accept[] the plaintiff’s evidence as true, and evaluate[] the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] “[C]laims with the requisite minimal merit may proceed.” ’ ” (Ibid.)

“The extrinsic/intrinsic fraud rule is a doctrine developed in courts of equity governing the basis for successful collateral attack on a final judgment by way of an independent proceeding. The rule is that fraud internal to the adversary proceeding, such as perjury committed during trial or error or mistake during the trial, is intrinsic and is not a basis for relief; but fraud that prevented the trial of a claim or prevented the defrauded party from getting into court at all, is extrinsic to the proceeding and is a basis for relief.” (Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 7.)

Johnson provided a declaration in opposition to the anti-SLAPP motion. Johnson’s declaration begins with the statement, “A court trial was held on 9/30/16 before Commissioner David E. Gregory, who ruled in favor of Defendant Pawnee Leasing.” In Johnson’s verified first amended complaint, he alleged, “A court trial was held on 9/30/16 before Commissioner David E. Gregory, who ruled in favor of Pawnee.” As set forth ante, all the fraudulent acts described by Johnson occurred during the pretrial activities and trial.

Because the alleged fraud occurred as part of the trial process, it is internal to the adversary proceeding. Johnson has not demonstrated a probability of prevailing on the merits of his lawsuit because intrinsic fraud is not a basis for relief in a collateral proceeding. All of Johnson’s causes of action involve the same factual allegations, so our conclusion applies to all of Johnson’s causes of action.

Johnson contends he demonstrated a probability of prevailing because “Commissioner Gregory did not allow the judicial machinery to ‘perform in the usual manner its impartial task of adjudging cases.’ If he had, he would have ruled in favor of [Johnson]. Instead, Commissioner Gregory imposed a surety on [Johnson] that he did not consent to in writing.” Commissioner Gregory is not a defendant in Johnson’s lawsuit. Johnson fails to explain what evidence demonstrates that defendants committed fraud, which resulted in Johnson not having a trial. (Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at p. 7 [“fraud that prevented the trial of a claim or prevented the defrauded party from getting into court at all”].) Accordingly, we find Johnson’s contention to be unpersuasive.

Johnson contends the trial court erred by treating his lawsuit as a contract dispute. The trial court discussed contracts for the purpose of explaining that Johnson had not established a prima facie case of fraud. The trial court explained that the contract and contract addendum belied Johnson’s claims of fraud. Accordingly, we are not persuaded that the trial court treated Johnson’s lawsuit as a contract case.

Johnson contends the trial court erred by issuing a tentative ruling the day before the hearing. Johnson asserts he did not have time to prepare his defense because the trial court went beyond the arguments raised by defendants. First, defendants argued the trial court should accept their late-filed anti-SLAPP motion because they were delayed due to Johnson filing a first amended complaint. The trial court accepted the late-filed anti-SLAPP motion because defendants “provided an adequate explanation for the delay.” Thus, the trial court did not go beyond defendants’ argument in ruling on the issue of timeliness.

Second, defendants asserted Johnson’s lawsuit arose from defendants’ protected activity because defendants were “being sued for statements and conduct they took during the trial of the underlying action.” The trial court found the protected activity prong was satisfied because “[s]tatements and writings made during judicial proceedings are protected by the anti-SLAPP statute.” Thus, the trial court’s reasoning matches that of defendants—the protected activity prong is satisfied because Johnson’s lawsuit arose from defendants’ activity in Pawnee’s lawsuit before Commissioner Gregory.

Third, in asserting the probability of prevailing prong was met, Johnson argued, “The lease agreement that was assigned to Pawnee, the named party is [RYU Martial Arts]. [Johnson’s] signature solely applied to that business entity. [Johnson’s] rights were therefore exclusive to that business as well.” The trial court explained that Johnson failed to meet his burden under the probability of prevailing prong because the contract and contract addendum contradicted his argument. Thus, the trial court’s finding was in direct response to Johnson’s argument. In sum, we are not persuaded that the trial court went beyond the parties’ arguments. Therefore, we are not persuaded that the trial court erred by issuing its tentative opinion one day prior to the hearing.

B. TIMELINESS OF THE MOTION

Johnson contends the trial court erred by exercising its discretion to consider the late-filed anti-SLAPP motion.

The anti-SLAPP statute provides, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (§ 425.16, subd. (f).) “A court ‘enjoys considerable discretion’ in determining ‘whether to allow [a] late filing of an anti-SLAPP motion.’ ” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624.) “In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff.” (Ibid.) We apply the abuse of discretion standard of review. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 782.)

Defendants provided the declaration of Laurel Adams (Adams), who was an attorney at the law firm representing defendants. Adams declared, “I did a series of meet and confer letters in regards [sic] to my opinion that this action should be dismissed without leave to amend. [Citation.] On or about June 24, 2018 as I was preparing the Anti Slapp Motion, (well within the 60 day period) I spoke to [Johnson] by telephone. He advised that in response to Meet and Confer positions, that he was filing an Amended Complaint that would address my contentions. I held off filing this Motion or any other pleading as I was told that the FAC would address my contentions.”

The register of actions reflects Johnson’s first amended complaint was filed on June 27, 2018. Defendants’ anti-SLAPP motion was filed on August 1. Johnson filed his opposition to the motion on August 21. In the opposition, Johnson raised procedural and substantive arguments. The trial court explained that it accepted the untimely anti-SLAPP motion because “[d]efendants provided an adequate explanation for the delay.” The explanation being that defendants were waiting for Johnson to file a first amended complaint.

The first factor is whether the motion advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings. Johnson filed his first amended complaint before Pawnee or Kane filed a responsive pleading or motion. Thus, the litigation was still at an early stage when defendants filed their anti-SLAPP motion. Therefore, the trial court could reasonably conclude that defendants’ motion advanced the statute’s purpose of examining the merits of covered lawsuits during the early stages of the proceedings.

Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff. Johnson asserts the anti-SLAPP motion was filed on the 76th day, which meant a 16-day delay occurred. The trial court could reasonably conclude a 16-day delay was minor. The reason for the delay was that defendants wanted to respond to Johnson’s first amended complaint, rather than his original complaint. The trial court could reasonably conclude defendants’ delay was rational because filing a motion in response to the first amended complaint, at an early stage of the litigation, is more efficient than filing two anti-SLAPP motions (one to the original complaint and a second to the first amended complaint). The trial court could reasonably conclude Johnson was not harmed by the untimely motion because Johnson had sufficient time to raise both procedural and substantive arguments in opposition to the motion. In sum, the trial court did not abuse its discretion by reaching the merits of the late-filed motion.

Johnson contends the trial court erred by accepting the late-filed anti-SLAPP motion because defendants believed the filing of the first amended complaint restarted the 60-day clock. We review the trial court’s ruling, not defendants’ argument. (See Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th at p. 782 [“A trial court’s ruling on an application to file a late anti-SLAPP motion is reviewed for an abuse of discretion”].) The trial court did not treat the filing of the amended complaint as restarting the 60-day clock. Rather, the trial court exercised its discretion to consider the late-filed motion. (See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1027, 1217 [“a defendant must file an anti-SLAPP motion within 60 days of service of the first complaint . . . unless the trial court, in its discretion . . . permits the motion to be filed at a later time”].) Because Johnson does not focus on the trial court’s ruling, we find his contention to be unpersuasive.

Johnson contends the trial court erred because defendants did not seek leave to file the late anti-SLAPP motion. As set forth ante, the anti-SLAPP statute provides, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (§ 425.16, subd. (f).) “[S]ome courts have suggested that this provision empowers a trial court to require advance leave before the defendant is permitted to file such a motion.” (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1186-1187.) However, at least one court has held, “[S]ection 425.16, subdivision (f), . . . does not require a moving defendant to request leave of court prior to filing an untimely motion. Instead, subdivision (f) authorizes the court, in its discretion, to consider an untimely motion without restriction as to whether or when the moving defendant so requests.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684.)

Johnson provides only the language of section 425.16, subdivision (f), to support his assertion that defendants were required to obtain leave of court before filing a late anti-SLAPP motion. Johnson does not provide statutory interpretation or set forth the split of authority. Because Johnson has not provided meaningful legal analysis to support his assertion, we will not resolve the issue of whether a defendant must obtain leave of court prior to filing a late anti-SLAPP motion. (Vanacore & Associates, Inc. v. Rosenfield (2016) 246 Cal.App.4th 438, 450.)

Johnson contends the trial court erred by accepting the late-filed anti-SLAPP motion because “[d]efendants never provided . . . any explanation.” In defendants’ reply to the anti-SLAPP motion, they explained that they filed the anti-SLAPP motion late because they were waiting to respond to Johnson’s first amended complaint, rather than respond to the original complaint. Because defendants did provide a reason for their delay, we find Johnson’s contention to be unpersuasive.

Johnson contends the trial court erred by holding a hearing on the anti-SLAPP motion on September 5, because Pawnee and Kane were in default. Pawnee and Kane filed their anti-SLAPP motion on August 1. The trial court clerk entered Pawnee’s and Kane’s defaults on August 7. It appears that the entries of default were erroneous because Pawnee and Kane filed their anti-SLAPP motion approximately one week before the entries of default, and the filing of the anti-SLAPP motion constitutes an appearance (§ 1014). (§ 585, subds. (a) & (b) [default may be entered after failure to appear].) Because the entries of default seem to be improper, we are not persuaded by Johnson’s contention.

Johnson contends the trial court erred by accepting the late-filed anti-SLAPP motion because, while Johnson told defendants he would be filing a first amended complaint, he never said “he would be making any amendments that affect them or his allegations against them.” We do not find Johnson’s argument to be persuasive for two reasons: (1) Johnson fails to provide any record citations to a declaration or affidavit in the record that includes his version of the events (Cal. Rules of Court, rule 8.204(a)(1)(C) [record citations]); and (2) defendants submitted a declaration reflecting that, during a meet and confer telephone call, Johnson said he would be “filing an Amended Complaint that would address [defendants’] contentions” concerning the deficiencies in the original complaint. The trial court could reasonably rely on the declaration submitted by defendants, and therefore we are not persuaded that an abuse of discretion has been demonstrated.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.