Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
APPEAL from an order of the Superior Court of San Diego County No. GIC843652, Jay M. Bloom, Judge.
HUFFMAN, Acting P. J.
Plaintiff and appellant Jeanette Bunn (plaintiff or Bunn) appeals from the trial court's grant of defendant and respondent Christopher S. Ferguson's (defendant's or Ferguson's) special motion to strike her first amended complaint for equitable and injunctive relief pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP statute (strategic lawsuit against public participation). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon Enterprises); Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92(Navellier).) In granting the motion, the court concluded that Ferguson's conduct was an exercise of his constitutional right of petition arising from litigation conducted in California and Utah, that his conduct in filing a small claims lawsuit in Utah and mailing two letters to Bunn regarding that lawsuit was not illegal as a matter of law, and that Bunn would not be able to show probable success on the merits of her claim.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Relying on Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), Bunn contends the trial court erred as a matter of law in finding Ferguson's conduct, which she asserts amounted to attempted extortion, was constitutionally protected under the anti-SLAPP statute, and in finding that she had not established the probability of prevailing on the merits of her equitable claim for injunctive relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Earlier Case Between Ferguson and Bunn
On January 2, 2004, Ferguson, a Utah resident, mailed a letter to Bunn at her business "Travel To Go," advising her that she had violated the "Federal Telephone Consumer Protection Act of 1991 and the Telephone Facsimile Solicitation Act of Utah" by sending an unsolicited fax to his facsimile machine the day before and that Bunn was thus liable under federal and Utah law for a combined amount of $4,000 in damages. Because of the violations, Ferguson advised that he would file suit in Utah on January 22, 2004 seeking such amount plus costs against Bunn, but would settle the matter with her for $3,000, if she paid him "on or before the date on which the last answer is due to be served and filed by you." If she did not accept the deadline for settlement, the litigation would proceed and he would only settle later for $3,600 plus the costs of litigation up to that point.
On January 23, 2004, Ferguson filed a small claims action in Salt Lake City, Utah for $3,630 in damages against Bunn and the matter was set for trial on March 9, 2004. When Bunn did not appear to oppose the claim, a pro tem judge ordered a default judgment in Ferguson's favor and against Bunn for $3,574.22. Upon Ferguson's motion, a judgment debtor's exam was then set for April 29, 2004, and Bunn was personally served with the order which told her that if she failed to appear, "the court may order a warrant for your arrest."
After Bunn failed to appear for the debtor's exam, the court in Utah on May 17, 2004 issued a $100 civil bench warrant which was returnable on June 16, 2004. The same day Ferguson obtained the bench warrant, he sent a copy of the warrant to the San Diego County Sheriff with instructions and a check in the amount of $50 to process the warrant against Bunn. Ferguson also sent a copy of everything to Bunn.
On July 6, 2004, Ferguson filed an application in San Diego Superior Court, case no. IC-832345, for entry of judgment on sister state judgment, and judgment was accordingly entered that day against Bunn for $3,730.52. On September 21, 2004, Bunn's unopposed motion to vacate judgment on sister state judgment was granted after the trial court determined that there had been "[n]o personal jurisdiction over . . . Bunn" in the Utah case and that she "was not served with process in accordance with Utah law" in that case.
B. The Current Litigation
On March 2, 2005, Bunn filed this lawsuit against Ferguson alleging causes of action for abuse of process, a violation of Business & Professions Code sections 17200 et seq. (unfair business practices), and intentional infliction of emotional distress based on Ferguson's purported illegality in filing and obtaining a default judgment in the small claim's action in Utah against her without proper service, which he then sought to enforce.
After the trial court sustained Ferguson's demurrer to the complaint with leave to amend, Bunn filed her first amended complaint April 10, 2006, seeking in one cause of action "equitable relief in the form of a prohibitory injunction enjoining Ferguson from allowing the Utah judgment and arrest warrant to remain in effect because Bunn has a primary right not to be harassed and threatened with future harm by Ferguson's perjury, fraud and wrongdoing." Bunn specifically alleged that "Ferguson perjured himself to the Utah court by stating that Bunn had been served," when he had personal knowledge that the registered letter giving notice of the small claims lawsuit had been signed by a person named "C. Talbot" at Bunn's business. In addition to alleging the above facts regarding the earlier Utah judgment and Ferguson's attempts to enforce it against her, Bunn alleged that she has no adequate remedy at law "in that, through no fault of her own, she may be subjected to arrest in California or in the state of Utah, should she ever travel there, and a civil judgment against her exists in the state of Utah which has detrimental effect on her credit rating. While Bunn may be precluded from seeking monetary damages against Ferguson in a civil proceeding because of the litigation privilege, that does not mean that she does not have a remedy in equity. Granting the equitable and injunctive relief prayed for herein would prevent an injustice and would prevent future harm to Bunn, otherwise she would be unfairly compelled to spend tens of thousands of dollars to retain counsel to go to Utah to have the judgment set aside and the arrest warrant expunged."
C. The Anti-SLAPP Motion and Ruling
On May 9, 2006, Ferguson again demurred to Bunn's amended complaint, contending, among other things, that Bunn's claim, however entitled, was barred by the litigation privilege of Civil Code section 47, subdivision (b), and also brought a special motion to strike under the anti-SLAPP law.
In opposing the motions, Bunn argued that Ferguson's attempted extortion, evidenced by his threat to have her arrested based on a warrant that he obtained by using perjured testimony concerning personal service on her in the small claims action, was not protected speech subject to a special motion to strike, and that, if it did apply, she had sufficiently pleaded a claim in equity for injunctive relief stemming from Ferguson's violation of her constitutional rights to liberty, privacy and interstate travel by "threatening to use the power of the states of California and Utah to secure [her arrest], if she does not pay him some money."
After considering the briefing filed on the matter, the trial court issued a tentative ruling continuing both motions to August 18, 2006, and ordering the parties to submit letter briefs addressing whether Flatley, supra, 39 Cal.4th 299 applied to this case. After hearing oral argument on August 25, 2006, the court took the matter under submission.
On August 28, 2006, the court granted Ferguson's motion to strike Bunn's amended complaint (§ 425.16) and ordered his demurrer off calendar as moot. In doing so, the trial judge specifically noted the two-step process for analyzing anti-SLAPP cases and then stated:
"Plaintiff seeks equitable relief in the form of a prohibitory injunction enjoying defendant from allowing a Utah judgment and arrest warrant to remain in effect. Filing a lawsuit is an exercise of one's constitutional right of petition and statements made in connection with or in preparation of litigation are subject to [section] § 425.16. [Citation.] Since plaintiff's claims arise from litigation conduct in California and Utah, defendant's initial burden has been met. [Citation.] [¶] Plaintiff claims that defendant perjured himself in the Utah action and sent two letters amounting to extortion, such that his activity is not protected. Usually any claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the plaintiff's burden to provide a prima facie showing of the merits of her case. [Citation.] However, in narrow circumstances where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, a SLAPP motion must be denied because the defendant cannot make the threshold showing that the illegal conduct falls within the purview of the SLAPP statute. [Flatley, supra, 39 Cal.4th 299.] [¶] The Flatley reasoning does not apply here. The Flatley decision is based on its specific and egregious facts and the facts presented here are too dissimilar. The court cannot conclude as a matter of law that defendant's actions in filing a small claims lawsuit and mailing two letters was illegal as a matter of law. [¶] Plaintiff contends defendant committed perjury because he represented to the Utah small claims court that he had effected service of process on plaintiff by mail and that he had complied with Utah law regarding service when he had not. The court notes that there is no document submitted that shows defendant perjured himself. Although there is evidence that Utah required service by mail coupled with a return receipt request signed by plaintiff and that the receipt request was not signed by plaintiff, there is no declaration made by defendant under penalty of perjury that he had complied with Utah law. The fact that a California court later granted an unopposed motion to vacate a sister state judgment based in part because the California court determined service in Utah was improper does not establish that defendant committed perjury. In fact, it could be argued that the Utah court would not have entered judgment in favor of defendant had it not determined that service was proper. [¶] Moreover, neither the January 2, 2004 or May 17, 2004 [letters] can be considered extortion as a matter of law. [Citations.] Both letters were written by defendant, representing himself in a small claims action. The January letter was written in an attempt to avert litigation by making a settlement offer of $3000 before filing a small claims complaint seeking $4000. The May letter was sent to the San Diego Sheriff's department, with a copy to plaintiff, to issue a bench warrant after plaintiff failed to appear to answer questions under oath regarding her property after defendant obtained a default judgment against plaintiff in Utah. [Citations.] Plaintiff received notice of the hearing, but failed to appear. [Citation.] [¶] Defendant has not denied that he wrote the letters. However, neither rises to the level of egregiousness as the letter written by an attorney in Flatley. In fact, Flatley emphasized that the communications at issue in that case were extortion as a matter of law based on the specific and extreme circumstances of the case. The opinion is not to be read to imply that rude, aggressive, or even belligerent prelitigation neo that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing necessarily constitute extortion. Unlike Flatley, the tone of the letters [here] is businesslike, rather than accusatory and appears to be a typical pre-litigation settlement letter. There is no threat to publicly accuse plaintiff of a serious crime unless an enormous amount of money was exchanged. Further, there were no subsequent telephone conversations as in Flatley where the outrageous demands were reiterated and expanded. The essential character of the Flatley letters was extortion. That is not found here. The facts presented do not indicate that defendant's conduct was illegal such that he is not protected by the SLAPP statute. [¶] Because defendant has met his initial burden, plaintiff must show her claim has minimal merit. [Citation.] Plaintiff's claim fails because defendant's activity is protected by the litigation privilege. [Citation.] The privilege applies to all publications made in the course of judicial proceedings. [Citation.] Filing of pleadings is protected, as is post-judgment collection activity. [Citation.] [¶] Therefore, defendant's SLAPP motion is granted."
Bunn appealed.
DISCUSSION
I
SUMMARY OF APPLICABLE ANTI-SLAPP LAW
It is now well-established that the anti-SLAPP law, enacted in 1992 "for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims 'arising from any act' of the defendant 'in furtherance of [his] right of petition or free speech under the United States or California Constitution in connection with a public issue . . .' " (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 186 (Martinez)), involves a two-step process for determining whether a claim is subject to being stricken. In the first step, "the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises, supra, 29 Cal.4th at p. 67.)
"In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citations.]" (Navellier, supra, 29 Cal.4th at p. 89.) The anti-SLAPP statute is construed broadly (§ 425.16, subd. (a)), and includes prelitigation communications (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 (Kashian)), the basic act of filing litigation (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19), claims arising from the judicial proceeding (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115), as well as post judgment enforcement activities necessarily related to communicative acts (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 1063-1065 (Rusheen).)
In analyzing whether the initial "arising from" requirement is met, a court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) A plaintiff cannot avoid the application of the anti-SLAPP statute by attempting, through creative pleading, to characterize an action as a "garden variety" tort, contract or injunctive claim where the basis of the alleged liability is predicated on protected speech or conduct. (Navellier, supra, 29 Cal.4th 82, 90-92.) Nor can a plaintiff "frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one 'cause of action.' " (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) We thus must examine the principal thrust or predominant nature of a plaintiff's cause of action in determining whether the anti-SLAPP statute applies. (Martinez, supra, 113 Cal.App.4th at p. 188; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Further, as our Supreme Court recently pointed out in Flatley, supra, 39 Cal.4th 299, "because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16. [Citation.]" (Id. at p. 313.) Specifically, "section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Flatley, supra, at p. 317.) In Flatley, the court found that the defendant there could not use the anti-SLAPP statute to strike the plaintiff's action that arose from defendant's claimed exercise of protected speech or petition rights via prelitigation demand letters and phone calls that, as a matter of law, constituted criminal extortion. (Id. at pp. 320, 332-333.) The defendant in Flatley was an attorney who had sent Flatley a demand letter threatening to publicly accuse him, a known entertainer, of rape and other unspecified criminal violations involving the Social Security Act and immigration and tax laws unless he immediately paid defendant and his client $1 million. (Id. at pp. 329-332.) The threats were reiterated in telephone calls to Flatley's attorneys. (Id. at pp. 329-330, 332.)
Although our high court in Flatley, supra, 39 Cal.4th 299, concluded that "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action" (id. at p. 320), it also stressed its ruling was limited to the extreme facts in that case. (Flatley, supra, 39 Cal.4th at p. 332.) In a footnote, the court specifically stated:
"We emphasize that our conclusion that [defendant's] communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. Extortion is the threat to accuse the victim of a crime or 'expose, or impute to him [or her] . . . any deformity, disgrace or crime' (Pen. Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made. Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion. [Citation.] . . . In short, our discussion of what extortion as a matter of law is limited to the specific facts of this case." (Flatley, supra, at pp. 332-333.)
We independently review a trial court's ruling on each step of a SLAPP motion under a de novo standard of review. (Martinez, supra, 113 Cal.App.4th at p. 186; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) Moreover, whether section 425.16 applies to a particular complaint, presents a legal question subject to the same de novo review. (Kashian, supra, 98 Cal.App.4th at p. 906.)
II
ANALYSIS
A. Ferguson Satisfied the First Step of the Section 425.16 Analysis
As to the first step of the anti-SLAPP motion, Bunn contends her sole cause of action in the first amended complaint for equity and injunctive relief is based on Ferguson's illegal conduct in sending a prelitigation letter to her threatening a lawsuit unless she paid a certain amount of money and then later sending a letter to the San Diego County sheriff with a warrant attached for her arrest and a copy of that letter to her and allowing the warrant for her arrest to remain in effect after knowing that it was invalid. Relying on Flatley, supra, 39 Cal.4th 299, Bunn characterizes Ferguson's conduct of obtaining the arrest warrant to assist in enforcing the Utah small claim's default judgment and his letters as attempted extortion. She specifically contends that Ferguson's conduct, like that in Flatley, is not a protected petitioning activity under section 425.16, and argues that the trial court erroneously found such conduct was protected when reaching its decision by focusing on Ferguson's filing of the small claims action instead of on his subsequent conduct of allowing an unlawfully obtained arrest warrant to stand. Bunn asserts Ferguson failed to produce any evidence to dispute her showing that he was attempting to extort money from her by sending the letters and using the bench warrant that had been unlawfully issued because he knew she had not been personally served with a copy of the underlying complaint in the Utah small claims action in which he obtained a default judgment against her. Our independent review of the record, pleadings and motion papers reveals the trial court properly found that Ferguson had made a threshold showing that the challenged cause of action was based on his protected petitioning activity in filing and pursuing through enforcement the judgment obtained in the Utah small claims action.
Here, unlike the plaintiff in Flatley, supra, 39 Cal.4th 299, Bunn has not shown as a matter of law that Ferguson's conduct and communications in obtaining a bench warrant for her appearance in Utah at a judgment debtor's examination based on the default judgment there and his letters to her or the sheriff regarding such matter constituted extortion or attempted extortion. In Flatley, the purported prelitigation demand letter specifically threatened to accuse the plaintiff there of various crimes combined with a demand for payment to prevent the accusations from being made public. In this case, Ferguson did not threaten Bunn of committing a crime or ask for money in return for not making his threat public. Instead, he merely mailed her a prelitigation demand letter advising her that she was in violation of certain U.S. and Utah laws by sending an unsolicited junk fax to him for which he intended to bring civil suit against her if she did not settle by a certain time in an amount less than the statutory damages for those violations. Neither the civil bench warrant nor the cover letter accompanying it, which were issued after a default judgment had been entered in the small claims lawsuit Ferguson brought after the demand letter, included any claims of criminal activity by Bunn or a demand for money to silence his claims. Ferguson has not conceded illegality in his actions and Bunn has not provided conclusive evidence establishing Ferguson's conduct and communications constituted extortion or attempted extortion. As the trial court correctly noted, the situation in this case is vastly different from Flatley and illegal conduct is not established as a matter of law.
Nor does Bunn's citation to People v. Jones (1938) 25 Cal.App.2d 517 provide her any assistance in showing that Ferguson's conduct of mailing a copy of the bench warrant to Bunn and the San Diego sheriff constituted extortion in this case. In Jones, the defendant was convicted of extortion after he, along with several others, "showed a [false] badge, declared he was a detective, exhibited and presented to the complainant a fictitious warrant of arrest in which the latter was charged with the offense of sodomy, in connection with which bail was fixed in the sum of $2,500. The record also disclose[d] that [the defendant] said to complainant . . . at the time the former produced what appeared to the latter to be a warrant or summons, 'You are under arrest.' " (Id. at p. 519.) In this case, the warrant was real, obtained as part of judicial proceedings and Ferguson merely provided notice of it to Bunn and the sheriff. Bunn was never arrested, told she was under arrest or threatened that if she didn't pay a certain amount of money that she would be arrested. No extortion is shown as a matter of law on these facts.
Bunn simply fails to appreciate that regardless of how she has pleaded her equitable cause of action seeking injunctive relief it basically stems from Ferguson's acts and communications made and taken in furtherance of his right of petition in filing the Utah small claims action and pursuing it through judgment and execution. Although Bunn alleges that Ferguson committed perjury in the Utah small claims action by representing that she had been properly served and asserts that Ferguson has somehow conceded he did so by not specifically providing evidence otherwise, Bunn has not pointed to any record evidence that shows conclusively that Ferguson committed perjury. Instead, the evidence reflects that the pro tem judge in the Utah small claims action found that the proof of service submitted to the court by Ferguson, which showed "C. Talbot was served by mail on January 27, 2004," was sufficient to enter a default judgment there. No document in the record demonstrates that Ferguson, who represented himself, made any statement at such time about that service or about his knowledge of whether Bunn had been properly served for the small claims action. As evidenced by the pleadings, the chronological history of events in this case suggests that Ferguson learned about the deficient service for the small claims judgment only when Bunn filed her motion to vacate the California judgment on sister state judgment in September 2004, months after the purported claimed attempted extortion via the warrant and letters.
Nor does the record show that Ferguson has subsequently admitted to such claimed perjury in his pleadings to Bunn's lawsuit as she now contends. Ferguson's supplemental brief filed in support of his demurrer and motion to strike Bunn's amended complaint specifically denied perjury was committed in Utah by representing that Bunn was properly served. Moreover, "conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical." (Kashian, supra, 98 Cal.App.4th at pp. 910-911.) Because the evidence does not conclusively show that Ferguson's conduct in writing the letters and obtaining and attempting to enforce the bench warrant arising from the small claims action in Utah was illegal, the exception set out in Flatley, supra, 39 Cal.4th 299, for indisputably illegal conduct does not apply in this case.
In sum, Bunn's cause of action, however captioned, is clearly based on conduct and communications that were made by Ferguson in the exercise of his right to petition the courts or law enforcement in Utah and California. Ferguson thus properly sought protection under the anti-SLAPP law.
B. Bunn Cannot Demonstrate a Probability of Prevailing on Her Claim
Because Ferguson has prevailed on the first step, whether his conduct was wrongful is an issue Bunn "must raise and support in the context of the discharge of [her secondary] burden to provide a prima facie showing of the merits of [her cause of action]." (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on other grounds in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.) Such burden can be met by Bunn showing that Ferguson's alleged "defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824, disapproved on other grounds in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.)
Here, Ferguson's main defense is that Bunn's cause of action for equitable injunctive relief is barred by the litigation privilege of Civil Code section 47, subdivision (b). As our Supreme Court has noted, "[t]he litigation privilege is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing." (Flatley, supra, 39 Cal.4th at p. 323.) Quoting Silberg v. Anderson (1990) 50 Cal.3d 205 at page 212 (Silberg), Bunn herself concedes that " 'the [litigation] privilege is now . . . applicable to any communication, whether or not it amounts to a publication [citations], and [to] all torts except malicious prosecution.' [Citations.]"
Bunn, however, contends that she has sufficiently pleaded an equitable claim for injunctive relief outside that privilege because she has no adequate remedy at law to right the wrong committed by Ferguson of threatening to use the power of the states of California and Utah to secure her arrest "as a means of punishing her for refusing to pay the unlawfully obtained judgment in the Utah small claims court." Bunn argues that the litigation privilege was not meant to be used as a shield to protect the ongoing criminal conduct of attempted extortion by Ferguson, which threatens her constitutional right of liberty that outweighs his claim of such privilege.
Bunn again does not appreciate that her attempt to plead around what is essentially a retaliatory cause of action cast as a plea for injunctive relief in equity to circumvent the litigation privilege that foreclosed her first complaint for abuse of process, violation of Business and Professions Code section 17200 and intentional infliction of emotional distress filed in this action fails as it is based on the same claimed illegal conduct--that Ferguson perjured himself regarding service of process to obtain judgment in Utah and then obtained the bench warrant against her to enforce that illegal judgment. The predominant thrust of her first amended complaint is thus the same as her originally pled complaint and similar to the situation in Rusheen, supra, 37 Cal.4th 1048, where our Supreme Court held that the filing of a perjured statement of service, a resulting judgment, and a subsequent execution of a levy on property were all encompassed within the litigation privilege and therefore was the type of communicative conduct subject to being stricken on an anti-SLAPP motion. (Id. at p. 1065.) Aside from the fact that Civil Code section 47, subdivision (b) virtually bars all such claims (Rusheen, supra, 37 Cal.4th at p. 1065; Silberg, supra, 50 Cal.3d at p. 215 [claims for abuse of process]; Rubin v. Green (1993) 4 Cal.4th 1187, 1203 [claims of unfair business practices]; Heller v. Norcal Mutual Insurance (1994) 8 Cal.4th 30 [claims of intentional infliction of emotional distress], as well as applying to postjudgment collection efforts (Rusheen, supra, 37 Cal.4th at p. 1052) including communications to law enforcement (Passman v. Torkan (1995) 34 Cal.App.4th 607, 616), Bunn cannot show that she does not have an adequate remedy at law for Ferguson's alleged wrongful communicative acts.
By her own pleading, Bunn alleges she seeks equitable and injunctive relief "otherwise she would be unfairly compelled to spend tens of thousands of dollars to retain counsel to go to Utah to have the judgment set aside and the arrest warrant expunged." As Ferguson points out in his respondent's brief, Bunn has the legal remedy of taking her California order vacating the Utah small claims judgment for lack of personal jurisdiction to the Utah court and requesting application of a sister state judgment to ensure any arrest warrant still in existence is vacated and to preclude the issuance of any future warrant being issued. (Utah Code, § 78-22a-2.)
Further, because the gravamen of Bunn's cause of action, regardless of being entitled a claim in equity for injunctive relief, is that Ferguson's communicative conduct in obtaining the Utah small claims judgment and attempting to enforce it was essentially an abuse of process or a type of malicious prosecution that is not properly based upon a small claims proceeding (Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476, 479), her reliance on Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, which found that the anti-SLAPP statute does not apply to prayers for injunctive relief but only to causes of action, to argue the court erred in granting the motion in this case is unavailing. Bunn's attempt to artfully plead around Ferguson's communicative acts arising out of judicial proceedings that are constitutionally protected rights of petition and subject to the anti-SLAPP statute has fallen short. Accordingly, we conclude the trial court properly found that Bunn had not met her burden of showing a probability of prevailing on her claim and granted Ferguson's motion to strike Bunn's first amended complaint under section 425.16.
DISPOSITION
The order appealed from is affirmed. Ferguson to recover his costs on appeal.
WE CONCUR: NARES, J, O'ROURKE, J.