Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2008-00058244- CU-OR-NC, Thomas P. Nugent, Judge.
HALLER, J.
Simona Bakker (Simona), in her capacity as trustee of the Bakker Family Trust, July 4, 2005 (Bakker Family Trust), filed a complaint against two couples (Michael & Julie Muehl and Stanley & Phyllis Hoffman) and their attorneys, alleging these defendants' actions in recording abstracts of judgment naming her husband as a judgment debtor, and refusing to withdraw the abstracts, were wrongful and constituted slander of title. Defendants (except for the Hoffmans) successfully moved to strike the complaints under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Simona appeals. We affirm.
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTS
In March 2006, the Hoffmans and the Muehls obtained a judgment against Simona's husband, Theodorus Bakker, in his individual capacity and as trustee of the Theodorus Bakker Trust, dated 3/11/96. The Hoffman judgment was in the amount of $30,000, and the Muehl judgment was in the amount of $132,200.86.
Several days later, the Hoffmans and the Muehls filed abstracts of judgment with the San Diego County Recorder's Office. The abstracts were contained on Judicial Council approved forms, that listed the name of the judgment debtor ("Theodorus Bakker" in his individual capacity and as trustee of the "Theodorus Bakker Trust, dated 3/11/96") and the correct amount of each judgment. Pursuant to the instructions on the forms, the parties did not identify any specific property owned by Theodorus. Instead, under the relevant statutes, the abstracts imposed a lien on any property owned under the name of Theodorus Bakker or the Theodorus Bakker Trust, dated 3/11/96. (See § 697.310, subd. (a).)
A judgment lien on real property is created by recording an abstract of judgment with the county recorder where the real property is located. (§ 697.310, subd. (a).) Once an abstract of judgment is recorded, the judgment becomes a lien on all real property owned by the judgment debtor in the county of recordation. (Ibid.; see Federal Deposit Insurers. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1069.)
Several months later, in September 2008, Simona filed a lawsuit in her capacity as the trustee of the Bakker Family Trust. Simona alleged two causes of action: "Slander of Title" and "Cancellation of Cloud on Title." Simona named as defendants: (1) the Hoffmans; (2) the Hoffmans' former attorney (Allen Gruber); (3) the Muehls; (4) the Muehls' former attorney (Michael Wexler); and (5) an alleged assignee of the Muehls' underlying claim (Commonwealth Land Title Co. (Commonwealth)). We shall refer collectively to the Muehls, Attorney Wexler, and Commonwealth, as the Muehl defendants.
It is undisputed the Bakker Family Trust is a different entity from the Theodorus Bakker Trust, 3/11/96.
In her complaint, Simona alleged the Hoffmans and the Muehls (with the assistance of their attorneys) "willfully, wrongfully, without justification and without privilege, published, or caused to be published, an abstract of judgment they obtained in the underlying action against Theodorus Bakker, as an individual and as trustee of the Theodorus Bakker Trust, March 11, 1996." The complaint further alleged: "The abstract of judgment was false, as to Plaintiff herein, because neither Simona R. Bakker, as an individual or as trustee of the Bakker Family Trust, of which she is the sole trustee, are judgment debtors, and neither of the above-described real properties has ever been the subject of litigation. [¶]... [¶]... The aforementioned recordings of the abstracts of judgment were false as to Plaintiff herein and caused doubt to be cast on Plaintiff's title to both properties described above." (Italics added.)
With respect to damages, Simona alleged the abstracts of judgment "directly impaired the immediate selability [sic]" of two properties owned by her (identified as the Portofino property and the Alvarado property). Simona claimed that when she learned of this problem, she "immediately made a demand of the defendants to remove the subject liens, " but "[t]hey refused." Simona alleged "the claims of the defendants to the above-described properties cloud [Plaintiff's] title to both properties and have depreciated the market value of both properties" and have subjected "Plaintiff to extreme financial hardship and expos[ed] her to the high probability of losing both properties to foreclosure...." (Italics added.)
The Hoffmans filed a cross-complaint against Simona.
The Muehl defendants and Attorney Gruber (collectively respondents) moved to dismiss Simona's complaint under the anti-SLAPP statute. (§ 425.16.) Respondents argued that Simona's allegations arose from their filing the abstracts of judgment which constitutes constitutionally protected petitioning activity. Respondents further argued that Simona could not meet her burden to show a likelihood of prevailing on her claims because the filing of the abstracts of judgment was absolutely privileged. Alternatively, respondents argued Simona could not prevail because the abstracts of judgment were factually and legally accurate, i.e., the Muehls and the Hoffmans had obtained valid judgments against Theodorus and his trust, and they filed abstracts of judgment pertaining only to Theodorus and his trust, and not to Simona, individually or as trustee of the Bakker Family Trust. In support, respondents submitted copies of the abstracts of judgment, which showed they were prepared in compliance with the governing statutes. Each abstract identifies the title of the court where the judgment was entered and the case number, the date of entry of the judgment, the date the abstract was issued, and the name and last known address of the judgment debtor (Theodorus Bakker as an individual and as trustee of the Theodorus Bakker Trust, dated 3/11/96). Neither abstract of judgment names or identifies Simona or her trust.
In opposition, Simona argued the filings of the abstracts of judgment were not protected activity, relying primarily on Garretson v. Post (2007) 156 Cal.App.4th 1508 which held the act of noticing a private nonjudicial foreclosure sale does not constitute protected activity. Simona additionally argued defendants' recording of the abstracts was merely the " 'triggering' event, which set in motion a series of events that resulted in the abstract of judgment against Theodorus Bakker to attach to [Simona's] properties...." (Capitalization and underscoring omitted.)
Simona also asserted that even if the anti-SLAPP statute applied, she would prevail on her claims. Simona stated that although respondents' recording of the abstracts was privileged, the privilege no longer applied because their actions "operated as a republication" once she notified defendants that the abstracts of judgment "had improperly attached to her properties." She further argued defendants Wexler, Gruber and Commonwealth lack standing to assert protection under section 425.16, and Gruber could not prevail on his anti-SLAPP motion because he committed "fraud, " relying on a malpractice complaint filed by his former clients against him.
In support of her arguments, Simona submitted her own declaration and the declaration of her husband. However, the court sustained defendants' objections to most of the assertions in these declarations, and Simona does not challenge this evidentiary ruling on appeal. In her declaration, Simona claimed the abstracts of judgment caused her to suffer damages after she learned from her title insurance company that it had listed the abstracts of judgment on a preliminary title report for property owned solely in her name. Simona said she requested that "defendants remove... the liens that had improperly attached to my two properties. They refused and claimed that they had a property claim against my properties, and threatened legal action."
Simona apparently attached several pages from the preliminary title reports to her declaration, but this attachment was not included in the appellate record. Defendants successfully objected to this evidence on the grounds that it lacked foundation and was hearsay.
After the hearing, the court granted respondents' anti-SLAPP motions. The court found respondents' actions in recording the abstracts of judgment constituted protected petitioning activity under the anti-SLAPP statute, and Simona did not meet her burden to show she would prevail on her claims because these actions were "absolutely privileged" under Civil Code section 47, subdivision (b)(2). The court also rejected Simona's arguments based on section 697.410, which she raised for the first time during the hearing on the motion. (See infra at pp. 19-20.) The court entered a judgment of dismissal in favor of defendant Gruber and entered a separate judgment of dismissal in favor of the Muehl defendants.
Simona timely filed a notice of appeal from the court's anti-SLAPP rulings. Simona also appealed from the court's order sustaining a demurrer brought by the Hoffmans. However, on our own motion, we dismissed the appeal as to the Hoffmans, finding the appeal premature because the Hoffmans' cross-complaint remained pending in the superior court.
An order granting an anti-SLAPP motion is directly appealable, and an appeal from the judgment is not proper. (See §§ 425.16, subd. (i), 904.1, subd. (a).) Although Simona's notice of appeal identified only the judgments (and not the order), we liberally construe the notice as an appeal from the order. (See Cal. Rules of Court, rule 8.100(a)(2).) Simona's notice of appeal is timely from the court's order granting respondents' anti-SLAPP motions.
Respondents moved to strike Simona's appellate reply brief because it contains new arguments and discusses extraneous information. We deny the motion, but we do not consider Simona's assertions to the extent they raise new issues, are based on materials not contained in the appellate record, and/or are unsupported by proper record and/or legal citations. (See Cal. Rules of Court, rule 8.204; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755, fn. 1.)
I. Simona's Propria Persona Representation of the Family Trust
In bringing the lawsuit against respondents, Simona represented the Bakker Family Trust in propria persona in the trial court and has continued to do so on appeal. She is not a licensed attorney. On our own motion, we raised the issue whether it was a violation of the prohibition against the unauthorized practice of law for Simona to represent the trust in the proceedings below and on appeal. (Bus. & Prof. Code, § 6125; Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621-622.) After reviewing the parties' responsive submissions, we conclude Simona engaged in the unauthorized practice of law in the proceedings below, but that this conduct is not a basis for dismissing the action.
Simona and respondents filed various briefs and documentary materials in response to our request for briefing on this issue, and respondents moved for judicial notice of various materials. We grant the unopposed requests for judicial notice, but have considered each party's submitted materials only to the extent they are admissible and relevant to the legal issues before us.
Generally, a nonattorney trustee who represents a trust in court without being represented by an attorney is engaged in the unauthorized practice of law. (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 549.) The rationale underlying this rule is that a trustee acts on behalf of the trust beneficiaries, and persons may represent their own interests in legal proceedings, but may not appear in propria persona for other parties. (Id. at pp. 547-548.) Under this rationale, an exception to the rule applies where the trustee is the sole trust beneficiary. When the trustee who sues on behalf of the trust is also the sole beneficiary, the trustee is not representing the interests of others. (See C.E. Pope Equity Trust v. United States (9th Cir. 1987) 818 F.2d 696, 697-698.)
Simona argues that she fits within this exception because she and her husband (Theodorus) were the sole beneficiaries of the Bakker Family Trust during the proceedings below. Simona further states that while this appeal was pending, on May 24, 2009, she modified the trust to exclude any beneficiaries other than herself. Simona has also presented evidence that Theodorus died on January 17, 2010, during the pendency of this appeal.
Respondents counter that the exception is inapplicable because Simona was not permitted to represent her spouse (while he was living) in bringing an affirmative claim (see § 371), and, in any event, Simona did not present sufficient evidence to prove that she and her husband were the sole beneficiaries of the Bakker Family Trust. Based on Simona's unrepresented status, respondents request that we affirm the dismissal order without ruling on the merits of the court's order, or remand and order the court to dismiss the case without prejudice with "severe sanctions" on Simona. (See Hansen v. Hansen, supra, 114 Cal.App.4th at pp. 621-622.)
For purposes of this appeal only, we accept Simona's representation that she is now the sole beneficiary of the Bakker Family Trust, and that during the proceedings below the only beneficiaries of this trust were her husband and herself. On this record, Simona's current representation of her trust falls within the "sole beneficiary" exception. (See C.E. Pope Equity Trust v. United States, supra, 818 F.2d at pp. 697-698.) However, we agree with respondents that Simona engaged in the unauthorized practice of law in bringing this action in propria persona while her husband was also a trust beneficiary. (See Ziegler v. Nickel, supra, 64 Cal.App.4th at p. 549; see § 371.)
Under section 371, a spouse may act to defend his or her spouse, but the statute does not extend this right to an affirmative claim.
Although we have the authority to order the superior court to dismiss the complaint without prejudice based on this prior violation of the legal representation requirement (see Hansen v. Hansen, supra, 114 Cal.App.4th at p. 622), we conclude it would not be appropriate to do so under the particular circumstances here. (See Russell v. Dopp (1995) 36 Cal.App.4th 765, 774 [issue whether unlicensed representation taints the judgment depends on the circumstances of the case].)
Respondents had ample opportunity to raise the issue during the proceedings below, which would have triggered the necessary evidentiary findings as to the true identity of the beneficiaries and the trustees of the trust. Further, the record does not show any actual prejudice from Simona's bringing this matter in propria persona because the only other beneficiary, Theodorus, has now passed away. Finally, because we conclude Simona's claims are without merit, judicial efficiency and preservation of limited judicial resources makes it appropriate that we reach the merits of the claims, rather than dismissing the matter without prejudice. To the extent that Simona's actions in bringing the lawsuit without legal representation may have caused injury to third parties not before us, these parties would have standing to seek civil remedies against Simona. (See Russell v. Dopp, supra, 36 Cal.App.4th at p. 774 & fn. 11.)
II. The Court Properly Granted Respondents' Anti-SLAPP Motions
A. General Principles
The Legislature enacted section 425.16 to deter lawsuits "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) " ' "Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources'..., the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target." ' " ' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 312.) The Legislature has mandated that courts construe the statute "broadly." (§ 425.16, subd. (a).)
In ruling on a defendant's anti-SLAPP motion, the trial court engages in a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the court determines "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Ibid.) Second, if the court finds this showing has been made, it must dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (Ibid.) On appeal, we conduct a de novo review of these issues. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
B. Simona's Claims Arise from Protected Activity
On the first step of the section 425.16 analysis, a cause of action is subject to a defendant's motion to strike if the claim arises from an act "in furtherance of" the defendant's "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue...." (§ 425.16, subd. (b)(1); see Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396.) This protected activity includes "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body...." (§ 425.16, subd. (e)(2).)
The factual basis for each of Simona's claims was that respondents wrongfully recorded abstracts of judgment, which caused Simona to suffer damages because the abstracts appeared on a preliminary title insurance report for property owned solely in Simona's name. This alleged wrongful action qualifies as protected petitioning activity governed by the anti-SLAPP statute. (§ 425.16, subd. (e)(2).) Under section 425.16, the protection for petitioning activities applies not only to the filing of lawsuits and activities during the litigation, but extends to conduct that relates to the enforcement of the judgment. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Recording an abstract of judgment is a continuation of the litigation, a preparatory step to executing on the judgment, and thus constitutes protected petitioning activity. (§ 674; see O'Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134-135 [analyzing issue in context of litigation privilege]; see also Laubisch v. Roberdo (1954) 43 Cal.2d 702, 707.)
As she did below, Simona concedes the filing of an abstract of judgment is protected activity under the anti-SLAPP statute. But she argues "the gravamen" of her action did not arise from defendants' recording of the abstracts of judgment, and instead "arose from defendants' refusal to remove the liens that had improperly attached to [her] two properties, which prevented her from selling both properties." Simona states that the "recording of the abstracts was only the 'triggering event'" and was merely "incidental to the alleged nonprotected acts, which gave rise to Plaintiff's causes of action." (Emphasis omitted.)
The argument fails for several reasons. First, Simona alleged defendants acted "willfully, wrongfully, without justification, and without privilege" in "publish[ing], or caus[ing] to be published, an abstract of judgment they obtained in the underlying action against Theodorus Bakker [and his trust]...." (Italics added.) This allegation pertaining to the wrongful filing of the abstract of judgment was central to her causes of action for slander of title and cancellation of instrument, and was not "incidental" to these claims. We agree that conduct does not "aris[e]" from protected activity under section 425.16 merely because it occurs after, or is triggered by, the protected activity. (See Freeman v. Schack (2007) 154 Cal.App.4th 719, 729-730.) But here, a primary focus of Simona's complaint was respondents' filing of the abstracts of judgment, and not merely the actions (or nonactions) that followed these filings.
Simona states that she was not intending to challenge respondents' filing of the abstracts of judgment, and instead she brought the action solely to challenge their refusal to remove the abstracts once she realized that the judgments had clouded title to property owned by her. However, in evaluating an anti-SLAPP motion, we are required to evaluate the complaint as written, and not the plaintiff's prior subjective intent or whether the complaint could be amended to take the pleading outside the anti-SLAPP statute. (See Sylmar Air Conditioning v. Pueblo Contracting Services (2004) 122 Cal.App.4th 1049, 1055; Simmons v. Allstate (2001) 92 Cal.App.4th 1068, 1073-1074.) Because Simona's complaint alleges that the publishing (filing) of the abstracts of judgment was wrongful, we are required to consider those allegations in determining the applicability of section 425.16.
Moreover, the fact that Simona's complaint also included an allegation that defendants refused her request that they remove the abstracts does not establish the complaint falls outside section 425.16. The principal thrust or "gravamen" of the plaintiff's cause of action determines whether the anti-SLAPP statute applies. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) The core of Simona's allegations pertained to the fact that the abstracts of judgment had an alleged detrimental impact on property owned by her. Respondents' sole involvement in this activity was their filing of the abstracts of judgment. Their subsequent refusal to withdraw the abstracts was essentially the same protected conduct, i.e., it was part of their continued efforts to collect on the superior court judgment against Theodorus. Thus, the "failure to remove" allegation remains subject to anti-SLAPP protection.
Further, even if respondents' conduct in failing to remove the abstracts is not petitioning activity, "[a] mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1288.) Viewing the complaint as a whole, the allegations pertaining to the wrongful filing of the abstracts of judgment were not "incidental" to the unprotected activity.
Without citing any applicable authority, Simona argues respondents' alleged wrongful conduct was not protected petitioning activity because she was not held liable in the underlying litigation. However, in determining whether an individual engaged in petitioning activity, we focus on the defendants' alleged wrongful conduct and not the identity of the person who claims injuries. (See Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249 [discussing issue in context of litigation privilege].) Filing an abstract (and related conduct) to enforce a judgment against the judgment debtor constitutes protected petitioning activity, regardless of who later complains about this activity.
Simona additionally contends the "collection of debt" is not necessarily protected conduct under the anti-SLAPP statute. We agree with this argument. (See Garretson v. Post, supra, 156 Cal.App.4th 1508 [private nonjudicial foreclosure sale constituted a purely commercial transaction, and thus did not involve an official proceeding under anti-SLAPP statute].) But where, as here, the debt collection arose from an official proceeding, the conduct is protected under section 425.16.
Simona's reliance on Freeman v. Schack, supra, 154 Cal.App.4th 719 is also misplaced. In Freeman, this court determined a client's claims against her former attorney were not subject to the anti-SLAPP statute. (Id. at pp. 722-723.) We reasoned that the activity giving rise to the claims was the defendant attorney's agreement to represent a party with conflicting interests (unprotected conduct), and not a new lawsuit filed by the attorney (protected conduct). (Id. at pp. 727-732.) Thus, unlike here, in Freeman the petitioning activity was incidental to the allegations of wrongful conduct.
Taking a different tack, Simona contends the two attorney defendants (Wexler and Gruber) and the alleged assignee of the Muehls' claims (Commonwealth) "lack standing to assert the protections" of the anti-SLAPP statute. In support, she relies on language in Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, in which the Court of Appeal observed that "in some cases" a lawyer's activities may not constitute protected conduct if the attorney is not exercising his or her own free expression or petition rights. (Id. at p. 152.)
This dicta does not support Simona's contention. The California Supreme Court has since confirmed that an attorney may successfully invoke the anti-SLAPP statute to dismiss a claim arising from petitioning activity undertaken on behalf of a client. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) The Courts of Appeal have reached similar conclusions. (See Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420; see also Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629 ["[W]e agree... that an attorney who has been made a defendant in a lawsuit based upon a written or oral statement he or she made on behalf of clients in a judicial proceeding or in connection with an issue under review by a court... may have standing to bring a SLAPP motion"].)
Although Simona also challenges Commonwealth's standing to bring the motion, she does not provide any factual or legal basis for this argument. Thus the issue is waived.
We also reject Simona's argument that the judgment as to respondent Gruber is improper because "he engaged in illegal activity." (Emphasis omitted.) Simona presented no evidence that Gruber engaged in illegal activity. Instead, she refers only to a malpractice complaint filed by the Hoffmans against Gruber, and does not cite to the portion of the record that contains this complaint. In any event, the allegations in a third party complaint are hearsay and do not constitute admissible evidence to support Simona's claim. Further, the allegation that Gruber engaged in improper conduct toward his client does not show that Simona's claims are excluded from the scope of anti-SLAPP protection. (See Flatley v. Mauro, supra, 39 Cal.4th at p. 320 [defendants' protected activity alleged to be "illegal" remains subject to anti-SLAPP statute unless it is undisputed the defendant engaged in the illegal activity and the activity "was illegal as a matter of law"].)
C. Simona Did Not Meet Burden to Show Probability of Prevailing
Because respondents satisfied their burden on the first prong of the test, the burden shifted to Simona to show she could prevail on her complaint. (Salma v. Capon, supra, 161 Cal.App.4th at p. 1283.) She did not meet this burden.
First, the litigation privilege bars Simona's claims. Civil Code section 47, subdivision (b) makes privileged any "publication or broadcast" made "[i]n any... judicial proceeding." (See Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212.) The privilege " 'applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.' " (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.) The privilege thus bars claims based on activities that are "logically and legally related to the realization of a litigation objective, " including the "collection of a judgment." (O'Keefe v. Kompa, supra, 84 Cal.App.4th 130, 135; see also Brown v. Kennard (2001) 94 Cal.App.4th 40, 49-50; Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 65-66.)
Under these principles, respondents' actions in filing the abstracts of judgment, and in their communications related to this filing (i.e., refusing to remove the abstracts) are absolutely privileged.
Moreover, even assuming the privilege does not apply, Simona did not present any evidence to show she will prevail on her claims. To establish her slander of title cause of action, Simona was required to show that defendants made a disparaging statement about her property, the statement was untrue and not privileged, and the statement was made with malice. (See Forte v. Nolfi (1972) 25 Cal.App.3d 656, 685-686.) Similarly, to prevail on a cancellation of instrument claim, Simona was required to show a legal basis that the instruments (the abstracts of judgment) were invalid.
The undisputed evidence shows the abstracts of judgment met all the applicable statutory requirements. (See § 674, subd. (a).) The abstracts (1) correctly identify Theodorus, as an individual and as trustee of the Theodorus Bakker Trust, as the judgment debtor; (2) correctly identify the judgment debtor's Social Security number to make clear the correct identity of the debtor; (3) do not include Simona's name or the name of her trust as a judgment debtor; and (4) do not identify any properties that are the subject of a lien. Because Simona did not produce any evidence showing respondents made a false publication, she could not establish a probability of prevailing on her slander of title or cancellation of instrument claims. (See Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264.)
Simona argues that respondents' conduct was wrongful because they "knowingly interfered with [her] efforts to transfer (sell and refinance) her properties, " and that it was the "improper attachment" of the abstract of judgment to her property that caused her injury. This argument is legally unsupported. Once an abstract is recorded, a judgment lien is created only on property in which the judgment debtor has an interest. (§§ 697.310, 697.340.) Thus, the abstract was not a lien against Simona's property, and was a lien only against any real property owned by Theodorus or his trust. (§ 697.340; see Kinney v. Vallentyne (1975) 15 Cal.3d 475, 478-479; Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1320.)
Simona claims the abstracts of judgment constituted a lien on her property because the abstracts were listed as an exception on a preliminary title report by her title insurer. However, even if this claim as to the contents of the title report was supported by admissible evidence, it is without merit. A preliminary title report is not a representation of the status of title, and thus is not a statement as to title. (See Siegel v. Fidelity Nat. Title Ins. Co. (1996) 46 Cal.App.4th 1181, 1191.) Instead, an exception in a preliminary title report means that the title insurance company is not willing to insure against claims that are based on the exception. (Ibid.) The alleged determination by the title insurer to exclude the abstracts from a preliminary title report did not show the existence of a lien on Simona's property, nor did it show that respondents committed any wrongful conduct.
Although there was no evidence presented as to why the abstracts were excluded on the preliminary title report for Simona's properties, on appeal respondents have suggested that the title company may have excluded the abstracts because of concerns that Simona had obtained the property from Theodorus under circumstances in which the title company was not willing to insure the validity of the ownership transfer.
Simona alternatively argues respondents had a legal obligation to remove the abstracts of judgment under section 697.410. That code section provides a method to seek removal of a recorded lien that has improperly attached to property because the name of the judgment debtor is confused with the name of the property owner.
Section 697.410 states in relevant part: "(a) If a recorded abstract of a money judgment... appears to create a judgment lien on real property of a person who is not the judgment debtor because the name of the property owner is the same as or similar to that of the judgment debtor, the erroneously identified property owner may deliver to the judgment creditor a written demand for a recordable document releasing the lien.... [¶] (b) Within 15 days after receipt of the property owner's demand... that the property is not subject to enforcement of the judgment, the judgment creditor shall deliver to the property owner a recordable document releasing the lien on the property of such owner. If the judgment creditor improperly fails to deliver a recordable document releasing the lien within the time allowed, the judgment creditor is liable to the property owner for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to the property owner. [¶] (c) If the judgment creditor does not deliver a recordable document pursuant to subdivision (b), the property owner may apply to the court on noticed motion for an order releasing the judgment lien on the property of such owner...." (Italics added.)
The record does not support that Simona could prevail on this claim. Section 697.410 applies only where a recorded abstract created a lien on property "because the name of the property owner is the same as or similar to that of the judgment debtor...." (§ 697.410.) Simona presented no evidence showing the abstracts created a lien on her property, or that her claimed injuries were caused by a confusion in names. Without this showing, there was no basis to obtain relief under section 697.410. Moreover, Simona never sought relief under this code section. In opposing an anti-SLAPP motion, a plaintiff must show by admissible evidence a probability of prevailing on the claims alleged in the complaint. Simona's complaint did not allege a failure to comply with section 697.410 as a basis for her legal claims.
D. Attorney Fees
Simona contends the court erred in granting attorney fees to respondents as prevailing parties under the anti-SLAPP statute. (See § 425.16, subd. (c).) However, the sole basis for the argument is that the court erred in granting the anti-SLAPP motions. Because we have rejected those contentions, we similarly reject Simona's challenges to the attorney fees awards.
III. Jurisdictional Contentions
In her appellate briefs, Simona raises two jurisdictional issues. First, she contends we must reverse the court's anti-SLAPP dismissal order because the court issued two judgments rather than a single judgment (one pertaining to the Muehl defendants and one pertaining to Gruber). The argument is without merit. When a plaintiff sues multiple defendants there may be different judgments with respect to the different defendants. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) There is no jurisdictional prohibition to a court entering separate judgments with respect to different defendants.
Simona also challenges our earlier ruling that her appeal with respect to the Hoffmans was premature. In dismissing that portion of the appeal, we stated the dismissal was without prejudice to Simona's later challenging the court's demurrer ruling on appeal from a final judgment. The dismissal of this portion of the appeal was proper because the Hoffmans' cross-complaint remains pending. Accordingly, we do not reach Simona's arguments in her appellate briefs challenging the court's order sustaining the Hoffmans' demurrer.
DISPOSITION
Affirmed. Appellant to bear respondents' costs on appeal.
WE CONCUR: BENKE, Acting P.J., AARON, J.