Judge: Donald F. Gaffney, Case: Li v. Liu, Date: 2023-08-16 Tentative Ruling
TENTATIVE RULINGS:
Cross-Defendant Jie Lie demurs to the Cross-Complaint filed by Cross-Complainant Dehong Liu. For the following reasons, the demurrer is SUSTAINED in part and OVERRULED in part with 30 days leave to amend.
Cross-Defendant Jie Lie moves to strike the punitive damages allegations in the Cross-Complaint filed by Cross-Complainant Dehong Liu. For the following reasons, the motion to strike is GRANTED with 30 days leave to amend.
Cross-Defendant Jie Lie moves to strike the sixth cause of action of the Cross-Complaint filed by Cross-Complainant Dehong Liu pursuant to Code Civ. Proc. § 425.16. For the following reasons, the anti-SLAPP motion to strike is GRANTED.
---------------------------- Motion # 1 ----------------------------
Demurrer to Cross-Complaint
1. Meet and Confer
A party demurring or moving to strike a pleading is required to meet and confer “in person or by telephone” with the party that filed the pleading under Section 430.41. (Code Civ. Proc. § 430.41.) Here, MP’s counsel did not satisfy this requirement. Nevertheless, because Cross-Complainant has filed a substantive opposition to the demurrer and motion to strike, the court will exercise its discretion to proceed to the merits.
2. General Principles on Demurrer
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)
On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)
A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Under normal circumstances, there is no need for specificity in pleading evidentiary facts. However, bare conclusions of law are insufficient. (Code Civ. Proc., §§ 425.10(a), 459; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Doheny Park Terrace HOA v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-99; Berger v. California Insurance Guarantee Assn (2005) 128 Cal.App.4th 989, 1006.)
3. Merits
The Cross-Complaint asserts causes of action for 1) breach of contract, 2) to set aside fraudulent transfer, 3) conspiracy, 4) specific performance, 5) fraud, 6) interference with economic advantage, 7) alter ego liability, 8) alter ego liability, 9) alter ego liability, 10) alter ego liability, 11) alter ego liability, and 12) declaratory relief. Aside from arguing the entire Cross-Complaint is uncertain, the demurrer takes issue with the first, second, third, fourth, fifth, sixth, and twelfth causes of action.
a. Uncertainty
A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).)
Further, uncertainty is a disfavored ground on a demurrer. (See, Rutter, Civil Procedure Before Trial, Section 7:85.) A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616.)
The Cross-Complaint (“CC”) adequately pleads factual allegations against Cross-Defendant and is not so poorly pleaded that Cross-Defendant cannot discern which issues must be admitted or denied. The CC alleges Cross-Defendant breached the purchase agreement by failing to place in escrow the required deposit amount and pay the remainder of the down payment. (See, e.g., Cross-Complaint, ¶ 24.) Thus, the court overrules the Demurrer for uncertainty.
b. Failure to state a claim.
Cross-Defendant contends the first cause of action for breach of contract and the fourth cause of action for specific performance fail because they do not adequately allege performance or a valid excuse from performance and because of the liquidated damages clause.
“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
The CC alleges the contract price of $6,300,000 was to be paid as a cash payment prior to the close of escrow on October 30, 2019. (Cross-Complaint, ¶ 21.) The CC alleges Cross-Defendant breached the contract by failing to pay the amount due and refusing to release the non-refundable liquidated damages escrow deposits. (Id., ¶ 24.) According to Cross-Defendant, however, the purchase agreement attached to the CC shows that close of escrow was contingent on the buyer selling their other homes. (Exhibit A., p. 12.) Specifically, it states that the CC does not allege that “close of escrow is contingent on the buyer selling their homes at [three addresses listed.]” (Id.) The CC does not allege this precondition occurred. The fourth cause of action seeks specific performance of the non-refundable deposit portions of the purchase agreement. Thus, the contention regarding the contingency discussed above is irrelevant to the specific performance claim. Therefore, the court sustains the demurrer with leave to amend as to the first cause of action and overrules the demurrer to the fourth cause of action for specific performance.
The second cause of action to set aside or annul fraudulent transfer alleges Cross-Complainant holds claims against Cross-Defendant in the sum of $389,000, but Cross-Defendant has not repaid any of this amount. The CC alleges Cross-Defendant held assets in Orange County and China and transferred those assets to other Cross-Defendants to hinder, delay, or defraud collection on the debt.
A fraudulent transfer claim arises when a debtor seeks to avoid a debt by transferring property to someone other than the creditor. The Uniform Voidable Transactions Act (UVTA, Civ. Code § 3439 et seq. (formerly the Uniform Fraudulent Transfer Act) gives the creditor the right to set aside such a transfer, enabling the creditor to reach the property in the hands of the third party. (Mejia v. Reed (2003) 31 Cal.4th 657, 663-664.)
Despite Cross-Defendant’s contention to the contrary, this cause of action is not uncertain. The demurrer to the second cause of action is overruled.
The third cause of action in the CC is for conspiracy. “Conspiracy is not an independent cause of action, but rather a doctrine imposing liability for a tort upon those involved in its commission.” (1–800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 590.) Thus, liability for a conspiracy “must be activated by the commission of an actual tort.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.)
For example, in a claim for intentional misrepresentation, where one defendant ‘A’ ‘alone made representations, the plaintiff can hold [other defendants (B and C) ] liable with “A” only by alleging and proving that “A” acted pursuant to an agreement (conspiracy) with “B” and “C” to defraud. Thus, the purpose of the [conspiracy] allegation is to establish the liability of “B” and “C” as joint tortfeasors regardless of whether either was a direct participant in the wrongful act.’ [Citation.]” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1172 (Daniels ).)
“To allege a conspiracy, a plaintiff must plead ‘(1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design.’ [Citation.]” (Daniels, supra, 246 Cal.App.4th at p. 1173.) “[F]acts must be alleged” as to each element (117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649) and “bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient.” (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 521.) “The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.) Even “actual knowledge of the planned tort, without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be combined with intent to aid in its commission.” (Ibid.)
The CC alleges:
39. [O]n or about November of 2019, and continuing thereafter, Cross-Defendants Jie Li, her husband Bo Weng, her mother Ms. Zhao, and her sister Cynthia, agreed and knowingly and willfully conspired between themselves to hinder, delay, and defraud Cross-Compliant in 1) forcing him to greatly reduce the sale price of his home, 2) stop him from gaining possession of his home, so Jie Li, her husband Bo Weng, her moth Ms. Zhao, Jie Li’s father and her children can continue to live at Mr. Liu’s property as squatters, 3) hide Jie Li’s assets to hinder Mr. Liu’s ability to receive legal judgments he has obtained through the Courts, and 4) bring frivolous and legal actions against Mr. Liu, and place a cloud on his title as a form of blackmail to force Mr. Liu to stop his collection efforts.
40. Under this conspiracy, the above-named Cross-Defendants/Transferees agreed that they should assist Jie Li with hiding Jie Li’s Assets, whether by transferring Jie Li’s funds into their own personal accounts and/or placing them in corporate accounts that she has access to until the statute of limitations had expired on Cross-Complainant’s claim, or M. Liu gives up, at which time they would return the money and Jie Li’s Assets to Jie Li.
For pleading purposes, the CC adequately alleges the formation and operation of a conspiracy between Li and the other Cross-Defendants. Thus, the court overrules the demurrer to this cause of action.
The fifth cause of action is for fraud. To state a cause of action for fraud, Plaintiff must allege the following with specificity: (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to defraud, 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (specific pleading requirement for fraud necessitates pleading facts that show the how, where, when, and who of the fraudulent conduct).) The CC alleges that, from November 25, 2018, through October 30, 2019 (almost a year), Cross-Defendants made certain misrepresentations, but it does not allege how they made these misrepresentations nor does it specify when within the year timeframe (November 2018 through October 2019) Cross-Defendants committed fraud. The demurrer to this cause of action is sustained with leave to amend.
The sixth cause of action is addressed in connection with the anti-SLAPP motion.
The twelfth cause of action for declaratory relief fails for the same reasons as the breach of contract claim. To qualify for declaratory relief, Cross-Complainant is required to show two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) Cross-Complainant seeks a judicial declaration that Cross-Defendant breached the purchase agreement. As discussed previously, the breach of contract claim is not sufficiently stated for pleading purposes. Thus, the demurrer to this cause of action is sustained with leave to amend.
Should Cross-Complainant desire to file an amended cross-complaint that addresses the issues in this ruling, Cross-Complainant shall file and serve the amended cross-complaint within 30 days of service of the notice of ruling.
Cross-Defendant to give notice.
---------------------------- Motion # 2 ----------------------------
Motion to Strike
1. General Principles on a Motion to Strike
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.
Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010). The allegations of the complaint are presumed true; they are read as a whole and in context. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.
A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively. (CRC Rule 3.1322(a).) Here, the notice of motion specifies the portions of the Cross-Complaint it seeks to strike.
2. Merits
Cross-Defendant seeks to strike the punitive damages allegations. To support punitive damages, the complaint must allege facts of defendant’s oppression, fraud, or malice. (Civ. Code § 3294(a).) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294(c)(2).) “Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code § 3294(c)(3).)
Here, the Cross-Complaint does not sufficiently plead facts showing Cross-Defendant acted with malice or oppression. And as discussed in connection with the demurrer, the fraud claim is not yet sufficiently pleaded. Thus, the motion to strike the punitive damages allegations is granted.
Cross-Defendants to give notice.
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Anti-SLAPP Motion
1. Timeliness
Code of Civil Procedure 425.16(f) provides that: “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.”
Cross-Complainant served the Cross-Complaint on Cross-Defendant on January 23, 2023. (ROA 179.) Thus, the anti-SLAPP motion should have been filed by March 27, 2023, 62 days later, accounting for the extension for electronic service. Cross-Defendant filed the motion on March 29, 2023.
The court has considerable discretion to consider and grant a late-filed anti-SLAPP motion on the merits even if defendant failed to request leave of court to file an untimely motion. (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684; Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 526 (holding that trial court did not abuse its discretion to allow anti-SLAPP motion filed over a year after a libel action was filed because moving party believed that co-defendant would represent him and plaintiff did not prejudice).)
Here, Cross-Complainant shows no prejudice from the two day delay in filing the anti-SLAPP motion. Thus, the court will consider the merits of the motion.
2. Request for Judicial Notice
Cross-Complainant asks the Court to take judicial notice of the pleadings filed in the unlawful detainer matter, the pleadings filed in this matter, the judgment entered in the UD matter, and the order in this matter granting the motion to expunge. The court grants the request for judicial notice. (Evid. Code § 452(d).)
3. Evidentiary Objection
Liu objects to Li’s declaration as it is in English and Li has previously maintained that she does not understand English and only speaks Mandarin. Li responds that the evidentiary objections do not comply with CRC 3.1354, but that rule of court governs evidentiary objections filed in connection with summary judgment motions and is thus not applicable here.
Evidence Code section 753 provides, in relevant part, that: “When the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing”; and, the translator must be identified. Evid. Code § 753(a)-(b). Where, as here, the writing is in a foreign language, the translator “shall take an oath that he or she will make a true translation in the English language of any writing he or she is to decipher or translate.” Evid. Code § 751(c). Here, however, Li’s declaration is not necessary for the adjudication of the motion, as detailed below. Thus, the court declines to rule on the objection.
4. Merits of the SLAPP motion
The anti-SLAPP motion addresses only the sixth cause of action in the Cross-Complaint for interference with economic advantage. The sixth cause of action alleges the following:
62. On or about January 21, 2021, Cross-Complainant commenced an UD Action against Jie Li, and retained real estate agents and legal counsel to commenced [sic] steps to once again place his Property in the market for sale.
63. Cross-Defendant Jie Li knew of the above described contract and relationships existing between Cross-Complainant and third parties in that she was actively trying to curtail the UD Action going to trial, and the sale of the Property.
64. On or about March 24, 2022, which was 20 days after a judgment was entered against Cross-Defendant Jie Li, evicting her and her family, she filed a bad faith, improper notice of Lis Pendens with the Orange County Recorder’s office, claiming a right to the property, placing a cloud on the property, and effectively ending all efforts to sell the Property.
…
66. As a result of Cross-Defendant, Jie Li’s conduct all attempts to sell the Property came to a halt.
…
Code Civ. Proc. § 425.16 provides in relevant part: “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 or 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.” This section is to be construed broadly. Cal. Code Civ. Proc. § 425.16(a).
The court’s determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navelier v. Sletten (2002) 29 Cal.4th 82, 88.)
a. Step One: Protected Speech? YES
There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc. § 425.16(e)):
(1) statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) statements 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) statements 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.
The first issue is determining whether Cross-Defendant met her initial burden to show that the interference with economic advantage cause of action in the Cross-Complaint arises from an act in furtherance of Cross-Defendant’s free speech rights.
In the unlawful detainer (UD) matter, On 1/12/2021, Cross-Complainant Dehong Liu commenced an unlawful detainer action against Cross-Defendant Jie Li. On 3/3/2022, the jury found in favor of Liu and against Li, awarding Liu possession of real property located at 1 Coral Cay, Newport Coast, California 92657 and awarding Liu rental damages in the amount of $470,000. (Cross-Complainant’s RJN.)
Cross-Defendant Li claims that the CC alleges “should be held liable for her statements and actions in a lawsuit Any statements made in defense of the Unlawful Detainer action.” (Motion at 5:7.) However, Cross-Defendant Li did not prosecute the UD matter as Li was the defendant in that matter. And the CC only appears to take issue with Li’s alleged efforts to stall the UD action going to trial.
The next issue is the lis pendens. The CC alleges Cross-Defendant “filed a bad faith, improper notice of Lis Pendens with the Orange County Recorder’s office, claiming a right to the property, placing a cloud on the property, and effectively ending all efforts to sell the Property.” (Cross-Complaint, ¶ 4.)
On 3/24/2022, Cross-Defendant recorded a lis pendens against the Property. On 9/7/2022, the Court granted Cross-Complainant’s motion to expunge lis pendens and ordered Cross-Defendant to pay Cross-Complainant fees and costs in the amount of $3,060. (ROA 112.)
Thus, the basis of the intentional interference claim in the Cross-Complaint is Cross-Defendant’s conduct in recording the lis pendens against Cross-Complainant’s property.
Recording a lis pendens is protected by the anti-SLAPP statute. (Code Civ. Proc. § §425.16(e)(1); Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290 (“Capon's filing of the notice of lis pendens in superior court and the naming of Salma's lenders as defendants in his lawsuit were writings made in a judicial proceeding. They are squarely covered by section 425.16, subdivision (e)(1).”); La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 471 (“Unquestionably, the recording of the lis pendens constituted a written statement made in connection with issues under consideration in a judicial proceeding—that is, the underlying [civil] action. [Citations.] Therefore, as conceded by appellants in their opening brief, the challenged complaint for slander of title arose out of protected activity under section 425.16, and respondents satisfied their burden under the first step of the analysis.”).)
Cross-Complainant does not dispute that the sixth cause of action claim concerns a protected activity. Cross-Defendant has met her threshold burden, and Cross-Complainant now must establish a probability of prevailing on the claim.
b. Step Two: Probability of Prevailing? No
Once the defendant has met its burden, the burden shifts to the plaintiff to establish that there is a probability it will prevail on its claim. (Code Civ. Proc. § 425.16(b)(1); Taus v Loftus (2007) 40 C4th 683, 713; Equilon Enters. v Consumer Cause, Inc. (2002) 29 C4th 53, 67.) “Probability” means “reasonable probability.” (Schoendorf v U.D. Registry, Inc. (2002) 97 CA4th 227, 238.)
To meet this burden, the plaintiff must show that the complaint is legally sufficient and supported by a prima facie showing, by admissible and competent evidence, of facts that would be sufficient to sustain a favorable judgment on the plaintiff's claims under the applicable evidentiary standard.
A judge is not required to weigh conflicting evidence to determine whether it is more probable than not that the plaintiff will prevail on the claim. Instead, the judge should evaluate the motion as he or she would evaluate a motion for summary judgment, nonsuit, or directed verdict. (Taus v Loftus, supra, 40 C4th at 714; Gilbert v Sykes (2007) 147 CA4th 13, 22.)
Civil Code section 47, subdivision (b) provides a broad and absolute privilege to a “publication or broadcast” made “[i]n any ... judicial proceeding.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 472.) However, Civil Code § 47(b)(4) imposes a limitation on that absolute privilege so that a lis pendens is privileged only if it “identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.” (Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664–665.)
This means that “the litigation privilege ... applies if the lis pendens (1) identifies an action ‘previously filed’ in a court of competent jurisdiction that (2) affects title or right to possession of real property.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 473.) This does not require that “there must also be evidentiary merit” to the underlying real-property claim upon which the lis pendens was based and recorded. There is no such added-requirement for the litigation privilege to shield the recorder from liability for the mere act of recording a lis pendens. (Id. at 476.) “If the Legislature had intended to erect an evidentiary hurdle or create an exception to the privilege based on lack of evidentiary merit, it would have said so. Since the Legislature did not do so, we are not at liberty to insert what has been omitted. For these reasons, we reject appellants' proposition that the availability of the litigation privilege to a recorded lis pendens depends upon whether the claimant is able to make a certain evidentiary showing of merit to support the real property claim.” (Id. at 477.)
In Alpha, 200 Cal.App.4th 656 the plaintiff brought a slander of title action for the defendant's wrongful recording of a lis pendens. The defendant filed an anti-SLAPP motion, arguing the plaintiff could not show the likelihood of prevailing because the lis pendens was privileged under Civil Code section 47(b)(4). In opposing the motion, the plaintiff relied on Palmer, arguing there was no privilege because the lis pendens had no evidentiary merit. Nonetheless, the trial court granted the motion based on the privilege. In affirming that ruling, the Court of Appeal held “the definition of ‘real property claim’ ” in section 405.4 does not include an evidentiary merit element. (Alpha, supra, 200 Cal.App.4th at p. 667.) A real property claim is defined as a “ ‘cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property ....’ ” (Ibid., italics omitted.) Thus, “[s]ection 405.4 does not define [a] ‘real property claim,’ or lack thereof, on the basis of the strength or weakness of the evidence to support that claim. Instead, it is clear from the plain language of section 405.4 that a ‘real property claim’ is determined from the cause or causes of action set forth in the pleading(s)” (Ibid., italics omitted.)
Likewise, “[t]he language of subdivision (b)(4) of Civil Code section 47 is not ambiguous and in any event is not reasonably susceptible to a construction that would create an additional exception to the absolute litigation privilege based on the lack of ‘evidentiary merit’ of a claimant's real property claim in connection with a recorded lis pendens.” (Alpha, supra, 200 Cal.App.4th at p. 667, italics omitted.) “ ‘ “ ‘Courts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority.’ ” ’ ” (Ibid.)
The language of Civil Code section 47(b)(4) contains no evidentiary merit element. The rules of statutory interpretation would be violated if it added an evidentiary merit exception to Civil Code section 47(b)(4) when the Legislature had not done so. (La Jolla, supra, 211 Cal.App.4th at p. 476.)
Thus, Cross-Defendant need not establish evidentiary merit to a real property claim. In order to invoke the litigation privilege, Cross-Defendant must only show that the lis pendens she recorded identifies an action previously filed in a court of competent jurisdiction that affects title or right to possession of real property. The Notice of Pendency of Action identifies this lawsuit and affects title or right to possession of the property.
The fact that the motion to expunge the lis pendens was granted does not take away the litigation privilege. Further, Cross-Complainant has not provided any evidence at all to show that the sixth cause of action is legally sufficient and supported by a prima facie showing.
Thus, the anti-SLAPP motion is granted.
Cross-Defendant to give notice.