Judge Teresa A. Beaudet, Case 20STCP01263 2022-08-05 Tentative Ruling

Plaintiff Masanobu Hagiike (“Plaintiff”) filed this action on April 3, 2020 against Defendant Yoko Hagiike (“Yoko”). Plaintiff filed the operative First Amended Complaint (“FAC”) on February 16, 2021 against Yoko and Fumiko Nobuto (“Nobuto”) (jointly, “Defendants”) asserting causes of action for (1) recognition and domestication of foreign country judgment; (2) actual intent to hinder, delay, or defraud a creditor (Civ. Code, § 3439.04(a)(1)); (3) common law fraudulent conveyance; and (4) partition by sale of real property.[1]

In the FAC, Plaintiff alleges that he and Yoko were married in Japan on October 20, 1996. (FAC, ¶ 9.) Plaintiff and Yoko received a divorce judgment from a Japanese court on September 2, 2016 (the “Initial Judgment”). (FAC, ¶ 14.) Yoko appealed the Initial Judgment and a final ruling was issued on February 22, 2018 (the “Final Judgment”). (FAC, ¶ 15.) Pursuant to the Initial Judgment, defendant was to pay Plaintiff 87,300,000 Yen plus interest at an annual rate of 5% until paid in full. (FAC, ¶ 19.) In the Final Judgment, that amount was reduced to 69,730,000 Yen, also accruing at 5%. (FAC, ¶ 19.) Plaintiff alleges that Yoko has paid nothing to Plaintiff and refuses to satisfy the Final Judgment. (FAC, ¶ 20.) Yoko has represented to Plaintiff that she has no assets in Japan. (FAC, ¶ 21.)

Plaintiff also alleges that in July of 2018, after Yoko appealed the Initial Judgment but before the Final Judgment was entered, Yoko’s mother, Nobuto, sued Yoko in Los Angeles Superior Court, in Case No. NC061638. (FAC, ¶ 22.) In March of 2018, shortly after the Final Judgment was issued, Nobuto and Yoko stipulated to a judgment for the full amount sought in Nobuto’s Complaint: $1,371,380. (FAC, ¶ 32.) A November 1, 2019 order in Case No. NC061638 noted that Yoko had partially satisfied the judgment in favor of Nobuto in the amount of $589,000, and further ordered certain shares of Emmaus Life Sciences, Inc. stock jointly owned by Plaintiff and Yoko to be reissued with half of the stock issued in Nobuto’s name as further satisfaction of the stipulated judgment. (FAC, ¶ 33.) This reissuance of stock allegedly prevented Plaintiff from recovering at least some of the Final Judgment amount by obtaining Yoko’s half of the stock. (FAC, ¶ 33.)

Plaintiff alleges that Yoko and Nobuto conspired to use the Los Angeles Superior Court system as a tool to facilitate a transfer of Yoko’s funds and property to Nobuto for the purposes of hindering, delaying, and defrauding Plaintiff such that he is unable to recover the Final Judgment. (FAC, ¶ 35.) Plaintiff alleges that the intent of Nobuto’s lawsuit was to prevent Plaintiff from collecting the judgment against Yoko by shielding her U.S. based assets, such as corporate stock and property in San Pedro, California (the “San Pedro Property”).[2] (FAC, ¶ 35.)

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

As an initial matter, Plaintiff contends that the motion should be denied because it is untimely. Pursuant to Code of Civil Procedure section 425.16, subdivision (f), “[t]he 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.” On February 18, 2022, Plaintiff filed a proof of service indicating that Nobuto was served with the FAC on December 2, 2021. The instant motion was filed on June 8, 2022, 188 days after December 2, 2021. In the opposition, Plaintiff cites to Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1188, where the Court of Appeal noted that “[a] late anti-SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense. Recognition of this fact is implicit in the 60-day requirement, which entitles a defendant to use the statute’s ‘special’ procedure (§ 425.16, subd. (b)(1)) only by bringing the motion early enough to avoid the cost of resolving the case by more conventional means.”

Nobuto asserts that the motion is not untimely. She cites to Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787, where the Court of Appeal noted, “a trial court enjoys considerable discretion regarding whether to allow the late filing of an anti-SLAPP motion.…” In addition, “a court has the discretion to consider, and grant or deny on the merits, a special motion to strike filed after the 60-day deadline even if the moving defendant fails to request leave of court to file an untimely motion.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684.)

Nobuto contends that the delay in filing the instant motion is explained by her initial challenge to jurisdiction over her in California. Nobuto notes that she filed a motion to quash service of summons on January 3, 2022. On April 21, 2022, the Court issued an order denying the motion. Nobuto asserts that she “filed her anti-SLAPP motion as soon as practicable following the ruling on her jurisdictional challenge and ensuing discussions with counsel, and has undertaken no other activities respecting the lawsuit, save the present motion.” (Reply at p. 6:9-11.) Nobuto notes that “[t]he overall purpose of the SLAPP statute is to provide defendants with a procedural remedy which would allow prompt exposure and dismissal of SLAPP suits…. The 60-day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended to permit the defendant to test the foundation of the plaintiff’s action before having to devote its time, energy and resources to combating a meritless lawsuit.” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 783 [internal quotations omitted, emphasis in original].)

Based on the foregoing, the Court exercises its discretion to consider the untimely anti-SLAPP motion. The Court finds that this case has not advanced so far out of the early stages of litigation that the purposes of the anti-SLAPP statute would be frustrated by allowing Nobuto’s motion to proceed on the merits.

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (emphasis in original).) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted].)

Nobuto contends that Plaintiff’s second cause of action for actual intent to hinder, delay, or defraud a creditor (Civ. Code, § 3439.04(a)(1)) and third cause of action for common law fraudulent conveyance are directed at Defendants’ “resort to the courts and their litigation activities,” such that the first prong of the anti-SLAPP statute is satisfied. (Mot. at p. 5:25.) The Court agrees.

In support of the second cause of action, Plaintiff alleges that “Yoko’s transfer of property to [Nobuto] was a substantial factor in causing Plaintiff’s harm. Indeed, but for the $1,371,380 stipulated judgment between Yoko and Fumiko and subsequent transfers, Yoko could have satisfied the Final Judgment.” (FAC, ¶ 48.) In support of the third cause of action, Plaintiff alleges that “the basis for [Nobuto’s] Complaint in Case No. NC061638 and the stipulated judgment were fraudulent, and Yoko did not actually owe the amounts conveyed to [Nobuto]. Rather, the case was filed and the property transferred for the purpose of preventing Plaintiff from collecting on the Final Judgment.” (FAC, ¶ 52.) Plaintiff alleges in both the second and third causes of action that “Yoko and [Nobuto’s] use of the California courts to perpetuate a fraudulent transfer aimed at thwarting collection of a valid judgment constitute fraud, oppression, and/or malice…” (FAC, ¶¶ 49, 55.) Nobuto notes that “[u]nder Code of Civil Procedure section 425.16 [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 ... shall be subject to a special motion to strike....A cause of action arising from defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [internal quotations and citations omitted.]) “‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action.” (Ibid.)

In the opposition, Plaintiff does not appear to dispute that the second and third causes of action of the FAC arise from protected activity for purposes of the first prong of the two-step anti-SLAPP analysis. The Court finds that Nobuto has established that her lawsuit in Case No. NC061638 is protected activity for purposes of the anti-SLAPP statute. The first prong of the two-step anti-SLAPP analysis is thus satisfied, and the burden now shifts to Plaintiff on prong two.

“[P]laintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making the prong two determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Nobuto asserts that Plaintiff cannot demonstrate the probability of prevailing because his fraudulent transfer claims are barred by the litigation privilege set forth in Civil Code section 47. This statute provides in part that, subject to certain exceptions, “[a] privileged publication or broadcast is one made…(b) In any…(2) judicial proceeding.” (Civ. Code, § 47.) “The principal purpose of section 47(2) is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 [internal citations omitted].)

Plaintiff argues that the litigation privilege does not apply to fraudulent transfer causes of action. Plaintiff cites to Chen v. Berenjian (2019) 33 Cal.App.5th 811, 814-816, where the plaintiff (Pang Yen Chen) sued Shazad Berenjian and his brother Sharmad Berenjian, alleging as follows:

“Shazad owns and operates a business called Digital Ear, Inc. In September 2012, Chen paid Shazad $32,952.22 for goods which Shazad did not deliver. Chen filed a lawsuit against Shazad and obtained a judgment against him for that amount.

In August 2014, Shazad became indebted to Chen for an additional $50,000 for goods that were never delivered. In September 2015, Chen filed a second lawsuit against Shazad and obtained a judgment against him for $57,997.26.

In June 2015, after the judgment in the first lawsuit was entered and before the second lawsuit was filed, Shazad and Sharmad entered into an agreement by which Sharmad would file a lawsuit against Shazad and Shazad would allow a default judgment to be taken. The agreement enabled Sharmad to obtain title to or a lien against all of Shazad’s assets. Sharmad and Shazad intended ‘to create a shield against claims of other creditors, including [Chen].’

Pursuant to this agreement, Sharmad filed a lawsuit against Shazad. The allegations of Sharmad's complaint were false. In October 2015, Sharmad and Shazad entered into a stipulated judgment against Shazad in the amount of $199,900. There were no ‘genuine grounds’ for that amount.

‘The stipulated judgment was not followed by any effort to actually enforce the judgment or obtain assets from [Shazad] in satisfaction of the judgment. Instead, [Shazad] continued to operate his business called Digital Ear, Inc., as he had done previously. However, when an attempt was made to enforce the above mentioned claims and judgments by [Chen], or any other creditor, [Sharmad] would levy on the property subject to the claim, pursuant to the sham judgment mentioned above, solely in order to defeat the attempts by [Chen] to enforce his own judgments.’

When Chen filed his second lawsuit against Shazad, Sharmad levied on two stereo speakers that were owned by Shazad through Digital Ear….The speakers had been previously sold to Chen and were the basis of his second lawsuit against Shazad. Sharmad levied on the speakers to defeat Chen’s claims. Shazad has transferred other assets to Sharmad without reasonable consideration in order to conceal them from Chen.”

The Court of Appeal found that the “primary issue presented by [the] appeal [was] whether, on the face of Chen’s complaint, the litigation privilege of Civil Code section 47, subdivision (b) (section 47(b)) barred the cause of action for fraudulent transfer under the UVTA. Exercising de novo review…[the Court of Appeal] conclude[d] the litigation privilege of section 47(b) [did] not bar the fraudulent transfer cause of action as alleged because the gravamen of that cause of action is the noncommunicative act of transferring assets by executing on a judgment.” (Id. at p. 815.) The Chen Court reasoned that “the acts causing injury to Chen were the agreement to defraud him and the transfer of the speakers from Shazad to Sharmad by means of executing on the judgment. The acts of filing the sham complaint and agreeing to the stipulated judgment, though communicative in nature, were not the gravamen of Chen’s fraudulent transfer cause of action. Chen’s complaint alleged, when an attempt was made to enforce the … claims and judgments by [Chen] … [Sharmad] would levy on the property subject to the claim. The levy was the allegedly voidable transfer producing the injury and was, therefore, the gravamen of the cause of action for fraudulent conveyance.” (Id. at p. 821 [internal quotations omitted].) The Court noted that “[l]evying on property as part of a scheme to defeat a creditor’s rights in violation of the UVTA is not communicative conduct; therefore, extending the litigation privilege to such conduct advances none of the privilege’s purposes.” (Id. at p. 822.)

Nobuto counters that unlike the claims at issue in Chen, Plaintiff’s claims here are based on communicative conduct. But similar to the plaintiff’s claims in Chen, Plaintiff alleges here that Nobuto sued Yoko for nonpayment of alleged debts, that Yoko stipulated to a judgment for the entire amount demanded by Nobuto’s complaint, and that Yoko then transferred at least $589,000 to Nobuto. (FAC, ¶ 34.) In support of the second cause of action, Plaintiff alleges that Yoko’s transfer of property to Nobuto was a substantial factor in causing Plaintiff’s harm, and but for the $1,371,380 stipulated judgment between Yoko and Nobuto and subsequent transfers, Yoko could have satisfied the Final Judgment. (Compl., ¶ 48.) In support of the third cause of action, Plaintiff similarly alleges that the basis for Nobuto’s Complaint in Case No. NC061638 and the stipulated judgment were fraudulent, and that the case was filed and the property transferred for the purpose of preventing Plaintiff from collecting on the Final Judgment. (Compl., ¶ 52.)

Nobuto cites to Rusheen v. Cohen, supra, 37 Cal.4th at page 1058, where the California Supreme Court noted that the “threshold issue in determining the applicability of the privilege is whether the defendant’s conduct was communicative or noncommunicative. The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.” (Internal quotations and citation omitted].) But the Court agrees with Plaintiff that the facts of Chen are more on point here than those in Rusheen, where the California Supreme Court addressed two issues: “(1) whether actions taken to collect a judgment, such as obtaining a writ of execution and levying on the judgment debtor’s property, are protected by the litigation privilege as communications in the course of a judicial proceeding; and (2) whether a claim for abuse of process based on the filing of an allegedly false declaration of service is barred by the litigation privilege on the ground the claim is necessarily founded on a communicative act.” (Id. at p. 1055.) Like in Chen, where the gravamen of Chen’s fraudulent transfer cause of action was “the noncommunicative act of transferring assets by executing on a judgment” (Chen v. Berenjian, supra, 33 Cal.App.5th at page 815), Plaintiff’s second and third causes of action are based on the act of transferring assets from Yoko to Nobuto based on the stipulated judgment in Nobuto’s lawsuit. Thus, the Court finds that Plaintiff has shown that the litigation privilege does not apply to the second and third causes of action.

The Court notes that in its previous April 26, 2022 Order on Yoko’s anti-SLAPP motion, the Court found that “Plaintiff has not presented any evidence demonstrating that he can establish a probability of prevailing on the second or third causes of action. As Yoko notes, Plaintiff solely cites to the FAC in support of his argument that Plaintiff has shown a probability of success on the merits.” (Order at p. 7:14-17.)[3] As Nobuto notes, unlike Plaintiff’s opposition to Yoko’s anti-SLAPP motion, Plaintiff’s opposition to the instant motion is now supplemented with evidence.

Plaintiff’s second cause of action is for Actual Intent to Hinder, Delay, or Defraud a

Creditor (Civ. Code § 3439.04, subd. (a)(1).) In the second cause of action, Plaintiff alleges that Yoko transferred property to Nobuto with the intent to hinder, delay, and defraud Plaintiff such that he was unable to collect on the Final Judgment. (FAC, ¶ 46.)

Civil Code section 3439.04, subdivision (a)(1) is contained in the Uniform Voidable Transactions Act (“UVTA”) (Civ. Code, § 3439, et seq.). “A fraudulent conveyance under the [UVTA] involves a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 829 [internal quotations omitted].) Pursuant to Civil Code section 3439.04, subdivision (a)(1), “[a] transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor.”

Pursuant to Civil Code section 3439.04, subdivision (b), “[i]n determining actual intent under paragraph (1) of subdivision (a), consideration may be given, among other factors, to any or all of the following: (1) Whether the transfer or obligation was to an insider. (2) Whether the debtor retained possession or control of the property transferred after the transfer. (3) Whether the transfer or obligation was disclosed or concealed. (4) Whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. (5) Whether the transfer was of substantially all the debtor’s assets. (6) Whether the debtor absconded. (7) Whether the debtor removed or concealed assets. (8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. (9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred. (11) Whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.”

Plaintiff contends that in this case, there is proof that all eleven factors set forth in Civil Code section 3439.04, subdivision (b) point to the conclusion that Defendants, including Nobuto, have perpetrated intentional fraudulent transfers. As to the first and eleventh factors of Civil Code section 3439.04, subdivision (b), Plaintiff asserts that the transfer of assets from Yoko to Nobuto was made to an “insider,” as Nobuto is Yoko’s mother. (Hagiike Decl., ¶ 5.) Plaintiff also contends that Nobuto is the “purported lienor.” As to the second factor, Plaintiff indicates that Yoko continues to receive rental income from the San Pedro Property. (Hagiike Decl., ¶ 3.) As to the third and seventh factors, Plaintiff asserts that he is a resident of Japan, and that Yoko failed to notify him of Nobuto’s lawsuit. (Hagiike Decl., ¶ 19.) Plaintiff asserts that Nobuto’s filing of her lawsuit in California thus ensured that Plaintiff would not know of the lawsuit until it was too late. Plaintiff also asserts that in the filings submitted in the Japanese divorce proceedings, Yoko listed only one of the four purported loans from Nobuto which served as the basis for the stipulated judgment. (Hagiike Decl., ¶ 15, Ex. B, p. 13.) As to the fourth and tenth factors, Plaintiff indicates that the stipulated judgment was entered in Nobuto’s lawsuit on March 22, 2018, a month following the entry of the Final Judgment on February 22, 2018 in the divorce proceedings in Japan. (Plaintiff’s RJN, ¶ 3, Ex. G; Hagiike Decl., ¶ 6, Ex. D.) As to the fifth and ninth factors, Plaintiff asserts that Yoko has represented that she has no assets in Japan, meaning her primary assets are her 50% interest in the San Pedro Property and shares of stock in Emmaus Life Sciences, Inc. (“Emmaus”) (Hagiike Decl., ¶ 7.) Plaintiff asserts that on May 3, 2019, Nobuto recorded the Abstract of Judgment on title of the San Pedro Property thereby encumbering it, and that on January 31, 2019, the Court in Nobuto’s action ordered Emmaus to reissue stock certificates in Yoko’s name to Nobuto. (Hagiike Decl., ¶¶ 11, 12; Silva Decl., ¶ 2; Plaintiff’s RJN, ¶ 4, Ex. H.) As to the sixth factor, Plaintiff contends that Yoko attempted to evade personal jurisdiction by claiming to be a Japanese resident and forcing Plaintiff to effectuate service through the Hague Convention. (Silva Decl., ¶¶ 4-9. ) As to the eighth factor, Plaintiff asserts that Nobuto’s lawsuit claimed she extended 4 loans, but Yoko only disclosed one of the four loans in her divorce proceeding. (Hagiike Decl., ¶ 15, Ex. B, p. 13.) Plaintiff asserts that this renders the alleged three undisclosed loans to be highly suspicious.

Nobuto responds to the evidence proffered by Plaintiff in footnote 2 of her reply. She asserts that Plaintiff’s challenge to the legitimacy of Nobuto’s loans to Yoko is contradicted by the Japanese judgment he relies on. Plaintiff cites to Exhibit B to Plaintiff’s declaration, the asserted English translation of the Initial Judgment, which references money in Yoko’s deposits and assets she claimed were funded with contributions from her mother, but which the court found were mixed with Hagiike’s deposits making them community property under Japanese law. (Hagiike Decl., ¶ 4, Ex. B, p. 8, ¶ 4(1)(A)(a).) Plaintiff also cites to Exhibit D to Plaintiff’s declaration, the asserted English translation of the Final Judgment, which references “the 31 million yen that Appellant borrowed from her mother in order to purchase a condominium, which Appellee also acknowledges occurred” and the “20 million yen Appellant granted by her mother to pay for Appellee’s studies abroad…” (Hagiike Decl., ¶ 6, Ex. D, p. 4, ¶ 2(8)(a)(iii) & (iv).) Nobuto contends that the evidence thus supports the legitimacy of Nobuto’s claims against Yoko for return of the loans. The Court notes that other than this point, Nobuto fails to address much of the evidence cited to by Plaintiff in support of his assertion that “the 11-factor test set forth in Civil Code § 3439.04(b) provides overwhelming proof that the Defendants engaged in intentional fraudulent transfers.” (See Opp’n at p. 12:22-15:13.) The reply does not mention Civil Code section 3439.04, and Nobuto also does not present any evidence in connection with the motion.

As Plaintiff notes, the Court of Appeal in Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 457 found that “[w]e 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. 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. That is the setting in which we determine whether plaintiff has met the required showing, a showing that is not high. In the words of the Supreme Court, plaintiff needs to show only a minimum level of legal sufficiency and triability. In the words of other courts, plaintiff needs to show only a case of minimal merit.” (Internal quotations and citations omitted.)

Based on the evidence presented, the Court finds that Plaintiff has demonstrated that he can establish a probability of prevailing on the second cause of action.

Plaintiff’s third cause of action is for common law fraudulent conveyance. Like the second cause of action, Plaintiff’s third cause of action alleges that Nobuto’s lawsuit was filed and the property transferred for the purpose of preventing Plaintiff from collecting on the Final Judgment. (FAC, ¶ 52.) Plaintiff notes that “the [UVTA] is not the exclusive remedy by which fraudulent conveyances and transfers may be attacked. They may also be attacked by, as it were, a common law action.” (Macedo v. Bosio (2001) 86 Cal.App.4th 1044, 1051.) Plaintiff contends that “[t]he ample evidence and analysis set forth in the preceding section also supports Plaintiffs’ claim for common law fraudulent conveyance.” (Opp’n at p. 16:13-15.)

As set forth above, other than the discussion in footnote 2 of the reply, Nobuto does not address the evidence Plaintiff submitted in connection with his opposition. Based on the evidence presented, the Court finds that Plaintiff has demonstrated that he can establish a probability of prevailing on the third cause of action.

“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).) The Court finds that the motion was neither frivolous nor intended to cause unnecessary delay. Therefore, the Court declines to award Plaintiff the requested attorney’s fees.

[1]The first and fourth causes of action are asserted against Yoko only. The second and third causes of action are asserted against both Defendants. On April 26, 2022, the Court issued an Order granting Yoko’s special motion to strike the second and third causes of action.

[2]Plaintiff alleges that in 2008, he and Yoko purchased property at 2235 25th Street, Unit 126, San Pedro, California 90732 for $430,000. (FAC, ¶¶ 5, 11.)

[3]As Plaintiff notes, in the April 26, 2022 Order, the Court did not make any finding that the litigation privilege bars Plaintiff’s claims. (See Order at p. 7:13.)

MASANOBU HAGIIKE, Plaintiff, vs. YOKO HAGIIKE, et al., Defendants.	Case No.:	20STCP01263
	Hearing Date:	August 5, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

Superior Court of California

County of Los Angeles

Department 50