Filed 8/17/18 Bare v. Rago CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

ANDREW BARE,

Plaintiff, Cross-defendant, and Appellant,

v.

MARY RAGO,

Defendant, Cross-complainant, and Respondent.

A151485

(San Mateo County

Super. Ct. No. 16CIV00514)

In 2014, we began our opinion in Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125, 128 with this observation: “Another appeal in an anti-SLAPP case. Another appeal by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no merit, will result in an inordinate delay of the plaintiff’s case and cause him to incur more unnecessary attorney fees. (See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1002–1003.) And no merit it has.” Here is yet another such appeal, this by a losing cross-defendant. And we again affirm.

BACKGROUND

The General Setting

Mary and Robert Rago were married in 1980. In 2012, Mary filed for dissolution, and the action continues to this day, with no final allocation of the marital estate. That estate includes various parcels of real property, one of which is particularly germane to the issues here: a home located at on Willow Road, Hillsborough (Willow Road or the Property).

From all indications in the record—and, indeed, based on representations by counsel here—the marital action has been acrimonious. For example, in February 2013, Mary obtained a two-year restraining order against Robert, who was then 61 years old, which among other things ordered Robert to immediately move out from the property. And two months later, in April 2013, the trial court entered an order after hearing that the parties “are to rent out the . . . Willow Road, Hillsborough family residence”—which they did, though there is no direct evidence of any lease in the record.

On October 31, 2014, Robert posted on the property a 30-day notice to vacate, a notice signed by Robert as “Landlord/Agent.” Three days later, Mary’s attorney, Colleen Coen, wrote to attorney Tim Gomes, who apparently had substituted in as attorney for Robert. Following some discussion about that substitution, Coen’s letter went on as follows:

“Over the weekend I was informed that your client caused to be posted the enclosed 30 day notice to quit on the tenant at . . . Willow Road. It is my position that the Notice is defective. As your client is aware, the tenant’s lease is effective for two years through December 2015. The tenancy is not a month to month tenancy and Mr. Rago has no authority to terminate the tenancy. The parties stipulated to rent the property for a period of two years, which is a court order. If Mr. Rago would like to modify this court order and occupy the property, he needs the family court’s authority. Any such request will be strongly opposed by this office and attorney’s fees sought.

“It is further my position that [Robert’s] attempts in this regard constitute a violation of his fiduciary duties. You have communicated to me that Mr. Rago is struggling financially and if this is in fact the case he will not be able to afford the approximate $7,000 per month mortgage on the property, whereby he would again jeopardize the communities [sic] main asset. My client has done absolutely everything in her power including taking personal loans and selling personal property to save this asset from foreclosure. Your client has no right to possession of this property and no authority to seek the termination of the tenancy without my client’s approval or a court order. Mr. Rago of course has neither.

“The parties’ tenant has cause for concern that Robert or his associates have entered the property. Given Robert’s extensive drug history and the fact that the tenant is entitled to exclusive use, possession and quit [sic] enjoyment of the premises, the tenant has requested that there be a court order preventing Robert from again entering the property. To this end, I have enclosed a proposed stipulation and order requiring Robert stay away from the premise and declaring the 30-Day Notice void. Should this stipulation not be executed by the end of business tomorrow, I will be filing an ex parte requesting the same relief as well as attorney’s fees and costs.”

Robert apparently did nothing, as Mary thereafter filed an ex parte application seeking to void the 30-day notice and to further prohibit Robert from interfering with the tenancy at the property. The application was successful, and the relief sought was granted, the court order providing as “Additional Temporary Emergency Court Orders” the following:

“1. Respondent, Robert Rago will take no action to terminate the tenancy of . . . Willow Road, will not initiate eviction proceedings, post further notices, or act in any manner that interferes with the tenancy of . . . Willow Road without the written consent of Mary Rago or court order. [¶] . . . [¶]

“3. The 30 day notice to vacate executed by Robert Rago and dated 10/31/14 is voided.”

Apparently undaunted, on October 15, 2015, Robert posted another “Thirty Day Notice to Terminate Tenancy.” Mary filed another ex parte request, which the court granted, and by order of November 18, ordered Robert to appear at a December 2 hearing. Papers accompanying the request included a charge, by Mary’s attorney Coen in a letter to Robert’s attorney, that Robert “continues to consistently show a reckless and willful disregard for the community estate.” Mary’s papers also included charges that Robert had improperly taken money out of accounts without authorization.

Following the December 2 hearing, on February 2, 2016, the court entered findings and orders, five numbered paragraphs, three pages in total. Paragraph 1 ordered Robert to return $43,702 taken from a joint account “in violation of court order.” The paragraph 2 found that Robert’s conduct “related to the taking of the UNUM proceeds in the parties [sic] joint account is sanctionable under Family Code § 271.” Then, following various other directions to Robert, the order concluded with paragraph 5: “[Mary] is granted temporary exclusive use and possession of [the property on] Willow Road.”

Following a hearing on April 11, on April 14, the court entered more findings and orders after hearing. As pertinent here, those orders provided as follows:

“2. [The property on] Willow Road is to be sold immediately. Respondent will have 72 hours to interview Vic Borelli and Adam Rago to determine whether he will consent to have them act as joint listing agents for the property. Prior to 6:00 p.m. on Thursday April 14, 2016, Respondent’s counsel will notify Petitioner’s counsel via email as to whether or not Respondent approves of Vic Borelli and Adam Rago. If no email is received, the lack of an email will be deemed consent to Vic Borelli and Adam Rago acting as listing agents for the sale of [the property on] Willow Road.

“If Respondent does not consent to Vic Borelli and Adam Rago, Denise Laugerson will be the listing agent for the property.

“3. Respondent is required to cooperate fully with the sales process for [the property on] Willow including signing the listing agreement and all documents needed for the sale. If Respondent does not approve documents required for the sale of [the property on] Willow within 48 hours of sending the required documents to Respondent’s attorney via email, Petitioner, MARY RAGO, will have authority to sign all required documents on behalf of Respondent, ROBERT RAGO, as his attorney in fact.

“4. The sales proceeds from [the property on] Willow will be distributed as follows:

“a) One-half of the net sale proceeds will be distributed to Petitioner, MARY RAGO, and confirmed to her as her sole and separate property. Petitioner will be able to do a 1031 exchange with these proceeds. It is acknowledged and agreed that this distribution confirms to Petitioner her community property interest in [the property on] Willow.

“b) The remainder of the sale proceeds are to be released to COLLEEN COEN, ESQ. for the establishment of a blocked account in the name of COLLEEN COEN in trust for MARY and ROBERT RAGO. Except as herein provided, no funds are to be withdrawn from this account without court order or written agreement of the parties. From this account the following sums will be distributed and charged against Respondent’s community interest in the [the property on] Willow:

“i) $40,000 will be provided to James K. O’Gallagher, Esq. on account of attorneys fees and costs.

“ii) $72,850 will be provided to Colleen Coen, Esq. on account of attorneys fees and costs previously ordered by this Court to be paid by Respondent. The Court reserves jurisdiction to make an order for additional fees and costs as well as Family Code 271 Sanctions.

“iii) $165,000 will be provided to Mary Rago as a non-taxable equalizing payment. This payment is on account of unpaid court ordered spousal support through April 31, 2016. This payment is not taxable to Petitioner and is not deductible to Respondent.

“iv) $26,101 will be paid to Mary Rago as reimbursement for the misappropriation of the $52,202 in UNUM funds by Robert Rago as previously ordered by this Court to be returned to Petitioner.”

On May 20, a sale of the property was apparently agreed to, with a scheduled escrow close on July 29.

On July 28, the day before closing, Robert appeared at Lawyer’s Title and Trust, and provided the title officer there a copy of a notice of pendency of action (lis pendens). Though served by Robert, the notice was signed by Andrew Bare, and listed Bare as attorney of record, “in Pro Per.” The notice represented that it was concerning a lawsuit filed by Bare against Mary, as trustee of the Rago Trust. And it represented that the action included “a cause of action for breach of contract” and that the object of the action was “to demand possession” of the property on Willow Road. Bare’s lawsuit will be discussed in detail below.

The lis pendens had not been recorded, nor had it been served by certified mail, as the law requires. Regardless, the sale of the property was put on hold due to this notice presented to the title company.

This forced Mary to again seek ex parte relief to allow the sale to close. On August 2, the court issued a temporary emergency order, which indemnified Lawyer’s Title from liability associated with Bare’s litigation, thus clearing the way for the close of escrow. And the sale was completed on August 3.

The Proceedings Below

As indicated, Bare had filed suit in July, specifically, Bare v. Rago, San Mateo Co. Super. Court case No. 16CIV00514. The suit named one defendant, Mary, and alleged one cause of action, for breach of contract. Attached to the complaint was a copy of a residential lease agreement for the property on Willow Road, from the period December 15, 2015 to November 30, 2016, between Robert as landlord and Bare as tenant. The lease agreement represents that a $6,000 security deposit was paid, along with two months’ rent, for a total of $18,000, and attached to the complaint was a copy of a check for $18,000. Interestingly, the check is not from Bare, the claimed tenant, but on the account of Valerie Rago, who is Robert’s daughter—and Bare’s girlfriend!

Bare’s complaint alleged that “Defendant Mary Rago, as trustee of the Rago family trust knowingly, and intentionally refused to deliver possession of the property located at . . . Willow Road per the terms of the lease agreement,” and “Plaintiff ended his current lease in anticipation of moving into the home on 12/01/2015 per the lease agreement. When defendant refused to perform and complete delivery, plaintiff was let [sic] displaced, with no residence to move into. As a result plaintiff suffered damages in finding temporary housing, and storage for all of his belongings. Additionally, plaintiff payed [sic] the first month rent, and a security deposit of 2 times the monthly rent which has not been returned.”

Mary’s response to Bare’s complaint included the cross-complaint leading to the within appeal, a cross-complaint against Bare and Robert. Mary’s cross-complaint alleged four causes of action against both defendants: abuse of process, fraud, negligent misrepresentation, and conspiracy. A fifth cause of action, for indemnity, was alleged only against Robert.

On January 25, 2017, Bare filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). The motion sought dismissal of each of the four causes of action against him on the grounds that his actions constituted protected activity in that they were acts in furtherance of his right of petition or free speech in connection with a public issue, and that Mary could not meet her burden of proving a prima facie case that her claims had a probability of prevailing at trial.

On March 6, Mary filed her opposition to the anti-SLAPP motion. It included a memorandum of points and authorities; two declarations, of Mary and her attorney Colleen Coen, whose declaration authenticated some 24 attachments; and a request for judicial notice, seeking notice of 22 of the 24 documents referred to in Coen’s declaration.

Because Bare argues here, however conclusory, that some of Mary’s evidence was not proper, it is important to note precisely Mary’s evidence, as well as Bare’s objections to it. Specifically:

As noted, Mary’s attorney Coen filed a declaration which authenticated 24 documents. And among other things, Coen testified that “The exhibits attached hereto to this Declaration are true and correct copies of the documents they purport to be. Unless otherwise specified, such exhibits and documents are true and correct copies of pleadings or documents on file in the San Mateo County Superior Court. A separate Request for Judicial Notice pleading is being submitted with these papers as to those documents on file with this Court as part of the Court’s record.” Coen’s declaration then went on to testify to certain facts to which she was a percipient witness, including these:

“I had my law office issue a subpoena for financial documents, including bank records and cancelled checks, to Patelco Credit Union in order to determine whether Valerie Rago’s check for $18,000 made payable to Robert Rago (Check No. 125, attached as an exhibit to Andrew Bare’s Complaint in this case) was ever cashed or otherwise deposited. . . . Those documents reflect that the check was never cashed, deposited, or otherwise negotiated. Moreover, those documents also reflect that Valerie Rago’s account did not have any amount of money nearly close to $18,000 to cover that check.

“6. Andrew Bare personally served copies of Robert Rago’s San Francisco Superior Court lawsuit, Case No. CGC-16-555700, on myself and Oliver Gutierrez, on December 9, 2016. This occurred at the December 9, 2016 hearing before the Honorable Don Franchi during a motion to disqualify hearing. After handing the lawsuit to Oliver Gutierrez and myself, Andrew Bare audibly laughed at us.

“7. Andrew Bare posted a ‘review’ on the website www.yelp.com about the property manager of the Ragos’ Golden Gate Avenue and Beaver Street properties, falsely claiming that Andrew Bare had an ownership interest in the property, even though Cross-Defendant Bare had no ownership interest in those properties. I received a copy of this Yelp ‘review’ directly from Eyal Katz, who operates Brick and Mortar, which is the property manager. A true and correct copy of this ‘review’ is attached hereto as Exhibit 24 to this Declaration. I also independently checked the www.yelp.com website for this review and it matched the review provided to me.”

In the memorandum of points and authorities, Mary argued that Bare had perpetrated “misconduct” that was not protected speech or activity under the anti-SLAPP law “because it involves much more than just the filing of a lawsuit, including fraudulent misrepresentations to third parties outside of the legal proceedings,” and, in any event, she had ample evidence to demonstrate a likelihood of success on her claims.

On March 10, Bare filed his reply, accompanied by 10 pages of evidentiary objections. Again, it is important to focus on Bare’s specific objections, which were as follows: the first seven pages of objections were to the specific exhibits in the “RJN,” that is the request for judicial notice. Bare then objected to two paragraphs of Coen’s declaration, and one paragraph of Mary’s declaration. That was it. Bare did not object to any of the documents authenticated in Coen’s declaration.

The motion came on for hearing on March 17. Following that hearing, the court entered an order denying the motion, an order that provided in relevant part as follows:

“Here, Cross-Defendant has not met his moving burden of demonstrating that the conduct underlying Cross-Complainant[’]s claims arises from protected activity, as required on the first prong of the anti-SLAPP analysis. While Cross-Defendant asserts that the claims set forth in the Cross-Complaint arise out of his filing the instant lawsuit, a plain reading of the Cross-Complain[ant’]s allegations demonstrates otherwise. Cross-Defendant fails to show how his alleged conduct of presenting a void/invalid Notice of Pendency of Action and misrepresenting his right to possession of the premises at [on] Willow Road in order to halt or delay its sale constitutes protected activity under the anti-SLAPP statute.

“Even if he had met his burden, however, Cross-Complainant has demonstrated a probability of prevailing on her claims for abuse of process, intentional and negligent misrepresentation, and related claim for conspiracy. Accordingly, the motion is DENIED.”

Because, as noted, Bare asserts some evidentiary issues here, we add that the trial court’s order also ruled as follows:

“Cross-Complainant[’]s Request for Judicial Notice is GRANTED as to Exhibits 3, 5, 6, 8, 11, 13, and 17, as well as to the judgment in San Mateo County Superior Court Case No. CLJ538344.

“Cross-Defendant[’]s evidentiary objections are MOOT with respect to Cross-Complainant[’]s Request for Judicial Notice in light of the above ruling. Cross-Defendant[’]s objections to the Declarations of Colleen Coen and Mary Rago are OVERRULED.”

On May 15, Bare filed a timely notice of appeal. And then, on July 6, a request for dismissal of his complaint with prejudice.

DISCUSSION

Code of Civil Procedure section 425.16, subdivision (b)(1) provides that “[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.” Subdivision (e) of section 425.16 elaborates the four types of acts within the ambit of a SLAPP.

A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the acts underlying the plaintiff’s complaint fit one of the categories spelled out in Code of Civil Procedure section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

As indicated, the trial court ruled that Bare failed on both steps of the anti-SLAPP analysis. And the parties devote a significant amount of their briefing to the step one issue, whether the causes of action arise from protected activity. While a step one analysis may give rise to an interesting discussion, we see no need to wade in on it, as even if Mary’s claims (or some of them) arose from protected activity, Mary has succeeded on step two, demonstrating a probability of prevailing on her claims.

As to how we deal with step two, we set forth the governing law in Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989–990 (Grewal):

“We decide the second step of the anti-SLAPP analysis on consideration of ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.)

“That is the setting in which we determine whether plaintiff has met the required showing, a showing that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of ‘minimal merit.’ (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier[, supra,] 29 Cal.4th 82, 95, fn. 11.)

“. . . As the Supreme Court early on noted, 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.) Or, as that court would later put it, ‘Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]’ (Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192; accord, Taus v. Loftus (2007) 40 Cal.4th 683, 714.)

“Numerous Courts of Appeal have articulated the test in similar language. (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” ’]; 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’]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 [‘similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment’].)”

With those principles in mind, we turn to our analysis, concluding that Mary established a probability that she will prevail on her claims, an analysis we make on de novo review. (Grewal, supra, 191 Cal.App.4th at p. 988.)

Mary’s cross-complaint named two cross-defendants, Robert and Bare. And as against Bare it alleged four causes of action: abuse of process, fraud, negligent misrepresentation, and conspiracy. That cross-complaint alleged among other things that Bare was the boyfriend of Valerie Rago, Robert’s daughter, and that Rago acted “in conjunction with” Bare. In short, the cross-complaint alleged that Bare and Rago were in cahoots—or, as the fourth cause of action put it, a conspiracy.

In support of this fundamental position, Mary provided significant evidence of the relationship between Bare and Robert, including the following:

—Robert and Bare are long-time acquaintances; Robert’s daughter Valerie is Bare’s girlfriend;

—Bare was Robert’s videographer at the November 24, 2015 deposition of Mary;

—Robert provided the notice of pendency of action to Lawyer’s Title, despite that the lawsuit was by Bare;

—Bare acted as Robert’s agent when in December 2016, he personally served a San Francisco Superior Court lawsuit filed by Robert (case No. CGC-16-555700) on Mary’s attorneys Coen and Gutierrez.

—The $18,000 check attached to Bare’s complaint, allegedly supporting Bare’s deposit and first month’s rent, was drawn on the account of Robert’s daughter,

Valerie—an account, not incidentally, without sufficient funds to honor the check;

—Bare submitted a token offer to purchase the Ragos’ community real property located on Pebble Way when the property was already about to close on a valid sale contract;

—Robert and Bare applied for a joint loan together against the Ragos’ community real property on Golden Gate Avenue, San Francisco, with the provision that Bare be added to the title;

—Bare posted a false accusation on the Yelp website about the property manager of the Ragos’ Golden Gate Avenue and Beaver Street properties, even though Bare had no ownership interest in those properties; and

—Bare sent text messages to Mary that she described as “intimidating,” indicating that Robert would be relentless in his conduct vis-à-vis Mary.

This evidence supports the conclusion that Mary provided prima facie evidence that she would prevail on her causes of action here.

Abuse of Process

Mary’s first cause of action is for abuse of process. “To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792; CACI No. 1520.) The abundant evidence described here included that Bare claimed he had a tenancy at the Willow Property, presenting through Robert a lis pendens to the listing agent and title company for the property in an effort to stop the sale of the property. No notice of pendency of action was served by certified mail on Mary, nor was any such notice recorded at the assessor’s office. As such, no valid lis pendens existed. (Code Civ. Proc., § 405.23 [“Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”].)

And as to the purported tenancy referred to in the complaint, the tenancy was invalid—indeed, in direct violation of court orders. Moreover, Bare misrepresented the facts about the payment for the deposit and the first month’s rent. And, of course, all this was against the background of Bare’s intimidating text messages to Mary. Mary met step two of the anti-SLAPP analysis as to her first cause of action.

Fraud

Mary’s second cause of action is for fraud, intentional misrepresentation. “The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; accord, Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) And, of course, the “misrepresentation need not be oral; it may be implied by conduct.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567.)

The thrust of this cause of action is that Bare misrepresented his use of the legal process by: (1) making the factual representation to Lawyer’s Title that there was a valid notice of pendency of action recorded against the property on Willow Road, and (2) making the factual representation to the listing agent that he had a valid right to possess the property. Moreover, Bare never provided the $18,000 to his supposed landlord (and co-cross-defendant) Robert. Indeed, the check was never cashed or otherwise negotiated, and the account it was drawn from, Valerie’s, did not have sufficient funds to cover the $18,000 payment. So, the claim in Bare’s complaint that he paid the first month’s rent and a security deposit is simply false.

Moreover, Robert admitted to the title officer that the check in question was never cashed, and further stated he would allow escrow to close if he was paid $15,000 out of escrow instead of the $7,500 he had stipulated to receiving in family law court. And Bare’s false representations resulted in damage to Mary, including delay in the close of the sale, increased costs, attorney fees, and the need for judicial intervention. Mary met step two on her fraud claim.

Negligent Misrepresentation

Mary’s third cause of action is for negligent misrepresentation. This “is a separate and distinct tort, a species of the tort of deceit. ‘Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’ ” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) “Whether a defendant had reasonable ground for believing his or her false statement to be true is ordinarily a question of fact.” (Quality Wash Group V, Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1696.) The discussion set forth in the prior section addressing intentional misrepresentation is a fortiori applicable here.

Conspiracy

Mary’s last claim is for conspiracy. Although the caption on Mary’s cross-complaint lists “Conspiracy” as an independent cause of action, it “is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.) “As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. [Citation.] ‘The effect of charging . . . conspiratorial conduct is to implicate all . . . who agree to the plan to commit the wrong as well as those who actually carry it out.’ ” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.)

“To support a conspiracy claim, a plaintiff must allege the following elements: ‘(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.’ ” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022; see generally CACI No. 3600.) As set forth in detail above, the numerous items linking Bare and Robert manifest a plan or design to act to harm Mary.

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. Mary shall recover her costs on appeal.

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Richman, J.

We concur:

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Kline, P.J.

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Stewart, J.