Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC336475, Terry A. Green, Judge.
Malhotra & Malhotra, Krishna R. Malhotra; and Howard Posner for Cross-defendants and Appellants.
Escandari & Michon and Alexander H. Escandari for Cross-complainant and Respondent.
EPSTEIN, P. J.
Mashid Salami and Ali Reza Khaleghi Moghadam appeal from the order denying in part their special motion to strike a cross-complaint against them. We find no error and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
This case comes to us during the pleading stage, so our factual summary is taken from the allegations of the complaint and cross-complaint. Appellant Mashid Salami and respondent Naghmeh Salami are sisters, and appellant Ali Reza Khaleghi Moghadam is Mashid’s adult son. (We refer to the parties by their first names to avoid confusion.)
In July 2005, Mashid and Ali filed an action against Naghmeh, asserting their interest in a residence purchased by Naghmeh in April 2002. According to the allegations of the complaint, in February 2002, the parties entered into an oral agreement to purchase a residence together. Mashid and Ali would provide the down payment, and Naghmeh would make the monthly mortgage payments after the property was purchased. Mashid and Ali would have a 50 percent interest in the property, and Naghmeh would have a 50 percent interest in the property, and they would hold title as tenants in common.
In April 2002, the parties made an offer to purchase a residence in Tarzana (the property). After the offer was made, Naghmeh informed Mashid and Ali that “they could not qualify for the loan by reason of their credit rating, but assured them that their names would be placed on title to the Property.” Mashid and Ali instructed Naghmeh to proceed with the purchase, and provided $370,000 for the down payment and $10,000 for closing costs on the $740,000 house. “Plaintiffs believed, at all times after the purchase of the Property, that title had been vested in the names of Plaintiffs jointly with Defendant Naghmeh, based upon their agreement, and Defendant Naghmeh’s representations that she had acted consistently with their agreement.” When the purchase was completed, the parties began living together at the property. Naghmeh made the monthly mortgage payments.
In March 2005, Ali wanted to obtain a loan using the property as collateral, and spoke to Naghmeh about it. She was opposed to this plan. After this discussion, Mashid and Ali “ascertained for the first time, to their shock and surprise, that the Property had been vested in the name of Defendant Naghmeh alone, and in exclusion to Plaintiffs.” Mashid and Ali demanded that their names be added to the title, but Naghmeh refused, and moved out of the house “by way of protest.”
Mashid and Ali filed an action against Naghmeh, seeking a declaration that they have a joint and equal interest in the property, and to quiet title in their names, jointly with Naghmeh. They also sought to impose a constructive trust on the property, and to enjoin Naghmeh from encumbering, transferring, selling, or otherwise alienating the property.
Naghmeh filed a first amended cross-complaint against Mashid and Ali. In the first cause of action for breach of contract, she alleged that in March 2002, Mashid and Ali learned of her intent to purchase residential property. “They offered to extend a loan to Cross-Complainant NAGHMEH SALAMI in the amount of $370,000. Cross-Complainant purchased a Property located at 4918 Calvin Avenue, Tarzana, California 91356, and utilized the loan she received from Cross-Defendants. In exchange for the loan, the parties agreed that Cross-Defendants would be allowed to reside at the Property with Cross-Complainant without paying (1) rent; (2) mortgage payments; (3) property taxes; (4) property insurance; (5) utilities; or (6) renovation or maintenance expenses. This arrangement would continue until Cross-Complainant provided 30-day notice to Cross-Defendants to vacate the property at which time [Cross-Defendant] would be repaid the loan within a reasonable time after their departure from the premises by selling or refinancing the Property, at the sole discretion of Cross-Complainant. At no time was there any agreement between the parties that Cross-Defendants would acquire any ownership interest in the Property.”
Naghmeh alleged that she has performed her obligations, but that cross-defendants “breached the parties’ agreement. Since property prices in Southern California have boomed in recent years, they are wrongfully and illegally claiming 50% ownership of the Property when, in fact, they merely extended a loan to Cross-Complainant. Cross-Defendants have also filed and recorded a notice of lis pendens that has encumbered the Property and clouded the title presently and has prevented Cross-Complainant from selling or refinancing the Property. Cross-Defendants have further breached the parties’ agreement by refusing to vacate the property upon a demand by Cross-Complainant.”
The second cause of action is for fraud. Naghmeh alleged, as she had in her first cause of action, that Mashid and Ali represented that they would loan her $370,000 to purchase the property; in exchange for this loan, they could reside there without payment; and that there was no agreement that they would acquire any ownership interest in the property. She alleged Mashid and Ali made these representations knowing them to be false, and made them with the intent to deceive and defraud Naghmeh, and to induce her to rely on them, which she did. She further alleged that the fraud is evidenced by Mashid and Ali’s “present claim of 50% ownership of the Property when, in fact, they merely extended a loan to Cross-Complainant. Cross-Defendants have also filed and recorded a notice of lis pendens that has encumbered the Property and clouded the title presently.”
The third cause of action is for slander per se. Naghmeh alleged that during the past year, Mashid and Ali stated to numerous family members and friends that she had perpetrated a fraud against them, had stolen their interest in the property, is a liar, is a cheater, and is untrustworthy. The fourth cause of action is for intentional infliction of emotional distress, based on the defamatory statements in the preceding cause of action. The fifth cause of action is to quiet title to the property.
Mashid and Ali brought a special motion to strike the first four causes of action in the cross-complaint as a strategic lawsuit against public participation, subject to the provisions of Code of Civil Procedure section 425.16 (the anti-SLAPP statute; hereafter section 425.16). The trial court granted the motion as to the first cause of action for breach of contract, and denied it as to the second, third and fourth causes of action. Mashid and Ali appeal from the denial of their anti-SLAPP motion as to these three causes of action.
DISCUSSION
Section 425.16, subdivision (b)(1), provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Subdivision (e) defines an “‘act in furtherance of a person’s right of petition or free speech’” to include “(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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
The trial court engages in a two-step process to determine whether to grant a special motion to strike: “First, 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 v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
A classic example of a cause of action subject to the anti-SLAPP statute is Naghmeh’s first cause of action for breach of contract. She alleged that Mashid and Ali “are wrongfully and illegally claiming 50% ownership of the Property when, in fact, they merely extended a loan to Cross-Complainant. Cross-Defendants have also filed and recorded a notice of lis pendens that has encumbered the Property and clouded the title presently and has prevented Cross-Complainant from selling or refinancing the Property. Cross-Defendants have further breached the parties’ agreement by refusing to vacate the property upon a demand by Cross-Complainant.” The gravamen of this cause of action is that appellants utilized the process of the courts to assert their ownership interest in the property. The trial court properly found this to be activity protected under the anti-SLAPP statute, and concluded Naghmeh had no probability of prevailing on the claim. There is no challenge to this finding.
Whether the second cause of action for fraud implicates the anti-SLAPP statute is not so clear-cut. As she did in the first cause of action, Naghmeh alleged that Mashid and Ali represented that they would loan her $370,000 to purchase the property in exchange for which they would reside in the residence without payment, and that there was no agreement that they would acquire any ownership interest in the property. She alleged that when Mashid and Ali made these representations, they knew them to be false, and made them with the intent to deceive and defraud Naghmeh and to induce her to rely on them, which she did. She further alleged: “That Cross-Defendants intentionally defrauded Cross-Complainants [sic] is evidenced by their present claim of 50% ownership of the Property when, in fact, they merely extended a loan to Cross-Complainant. Cross-Defendants have also filed and recorded a notice of lis pendens that has encumbered the Property and clouded the title presently.”
The alleged fraud was appellants’ representations that they were loaning Naghmeh money to purchase the property, which induced her to make the purchase, when in fact they intended to obtain an ownership interest in the property. Although the cause of action refers to appellants’ actions asserting their 50 percent ownership of the property, and filing a lis pendens, it does so as evidence that their representations at the time the loan was made were false, not as the actionable conduct itself.
“[A] defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. . . . [I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
We agree with the trial court that appellants’ protected activities of bringing an action to claim a 50 percent interest in the property and filing a lis pendens were incidental to the fraud alleged in the second cause of action of the cross-complaint. Since the gravamen of this cause of action is not protected activity, the special motion to strike was properly denied.
The court also was correct in denying the motion as to the third cause of action for slander. Naghmeh alleged that “During the year past, Cross-Defendants spoke the following words of and concerning Cross-Complainant:
“Cross-Complainant has perpetrated fraud against them
“Cross-Complainant is a thief who has stolen their interest in the Property from them
“Cross-Complainant is a liar
“Cross-Complainant is a cheater
“Cross-Complainant is untrustworthy.”
Appellants make no claim that the allegedly defamatory statements were made before a legislative, executive or judicial proceeding. They argue that the alleged statements were made in connection with a judicial proceeding.
Although the same dispute that gave rise to the appellants’ lawsuit may have been at the heart of the statements, there is no suggestion in the cross-complaint that the statements were made in connection with the action. Naghmeh alleged only that the statements were made in the year preceding the cross-complaint, and that they “were heard by numerous family members and friends” and were defamatory because they were false and imputed to her crimes she had not committed.
Appellants rely on Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 (disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 68, fn. 5), a case we find distinguishable. In Wilcox, plaintiffs were certified shorthand reporters who filed suit against defendants, an alliance of certified shorthand reporters, alleging defendants’ “direct contracting” with insurers was an unfair business practice, interfered with plaintiffs’ prospective economic advantages, and interfered with existing contracts. Two insurance companies which contracted with the defendant reporters also were named as defendants. The defendant reporters filed a cross-complaint against plaintiffs and others, including Sondra Wilcox, who had made a financial contribution to support the litigation. The cross-complaint alleged that Wilcox distributed a memorandum to various shorthand reporters stating that shorthand reporting agencies were banding together to sue the defendants for extortion and racketeering. The memorandum encouraged reporters to tell insurance company attorneys about the litigation to discourage direct contracting agreements, and asked reporters to contribute money toward the lawsuit. In reviewing the ruling on Wilcox’s anti-SLAPP motion, the Court of Appeal held that her alleged defamatory statements “were clearly made in connection with the underlying judicial challenge to direct contracting. As shown by the cross-complaint itself those statements were made in the context of exhorting shorthand reporters to contribute to the cost of pursuing that litigation. Thus, there is a strong showing those statements are rationally connected to the litigation itself.” (Id. at pp. 821-822.) No such tie between the litigation and appellants’ alleged defamatory statements is evident in our case.
“[I]f the speech is made or the activity is conducted in an official proceeding authorized by law, it need not be connected to a public issue. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.) But if it is made or conducted apart from an official proceeding, then there is a public issue requirement. (Ibid.)” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 811.) The alleged statements bear on Naghmeh’s character, but she is not a public figure, nor is her good character a matter of public interest. (See Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280.) The court properly concluded that the defamation cause of action does not implicate protected activity within the meaning of the anti-SLAPP law.
The fourth cause of action, for intentional infliction of emotional distress, is premised on the same defamatory statements alleged in the slander cause of action. Naghmeh alleged that appellants “waged a relentless campaign of character assassination against Cross-Complainant by disseminating vicious lies about Cross-Complainant to numerous members of the parties’ immediate and extended family.” As with the third cause of action, the alleged conduct was neither connected with an official proceeding, nor did it concern a matter of public interest. Hence, it is not protected activity for purposes of section 425.16. The anti-SLAPP motion was properly denied as to this cause of action.
Having concluded that the second, third, and fourth causes of action do not arise from protected activity, we need not consider whether respondent demonstrated a probability of prevailing on these claims.
DISPOSITION
The order is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.