Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeals from judgments and orders of the Superior Court of Orange County, Super. Ct. No. 05CC03849, Peter J. Polos, Judge.
William Tezak and Anice Tezak in pro. per.; Law Offices of Philip A. Putman and Philip A. Putman, for Plaintiffs and Appellants William Tezak and Anice Tezak.
Feldsott & Lee, Stanley Feldsott and Martin L. Lee for Defendants and Appellants, Feldsott & Lee, Stanley Feldsott, and Martin L. Lee.
Kulik, Gottesman, Mouton & Siegel, Thomas M. Ware II, and Francesca Dioguardi for Defendants and Respondents, Richard Carlburg, George Kallas, Catherine J. Lesnick, Jimmy Patopoff, Regina Alcantera, James Strang, Shirley Vogt, Mark Nelson, James P. McIntyre, James Bay, and Chuck Bagby.
Bennett & Bennett and William Greg Bennett for Defendant and Respondent Elizabeth A. McIntyre.
OPINION
IKOLA, J.
We are familiar with the backdrop against which the present controversy is set. The parties figuratively locked horns at their first encounter — a meeting of the Greenbrook Fountain Valley Homeowners Association (HOA) — many years ago, and thereafter became inextricably entangled in a clash over the meaning and application of the covenants, conditions, and restrictions (CC& R’s) governing what homeowners may and may not do with their property located within the 450-home development encompassed by the HOA.
Predictably, the matter ended in litigation, and in a decision some three and one-half years ago, Greenbrook Fountain Valley Homeowners Association v. Tezak (Jan. 28, 2004, G032358) [nonpub. opn.]) (Greenbrook), we affirmed a judgment ordering William and Anice Tezak (the Tezaks) to remove an unapproved construction on their property (a 29-foot green and white vinyl-slat rolling gate anchored by two concrete pilasters and extending along the street-facing side of their home from the front corner of the garage to the property line) and pay the HOA’s attorney fees.
The gate was constructed without HOA approval, in a preemptive strike against the anticipated disapproval. In the process of installing the gate, the Tezaks tore down a conforming vine-covered block wall and uprooted landscaping. The gate was designed so the Tezaks could partially obscure from public view a 35-foot motor home, 24-foot boat and trailer, and 14-foot trailer for motorcycles or other sports equipment they intended to store on their property. The gate provided access to the proposed storage area, but due to lack of a driveway leading to the gate, the Tezaks had to drive the vehicles and/or equipment up and over the curb and through their front yard.
Somewhat akin to the adversaries in Jarndyce v. Jarndyce, and equally intent on achieving an unqualified victory at any cost, the parties have not managed to break sufficiently free of one another to move on. In the instant proceeding, we consider four consolidated appeals. In three of them, the Tezaks challenge sequential judgments of dismissal of their complaint against the HOA, its members, and its attorneys, filed in response to the HOA’s suit for injunctive relief and damages regarding the offending gate. The first judgment was entered in favor of Feldsott & Lee, Stanley Feldsott, and Martin L. Lee (the attorneys), the second in favor of the attorneys’ clients (individual member homeowners, save one), and the third in favor of the remaining homeowner, Elizabeth A. McIntyre (homeowners). All of the judgments followed the court’s granting of the moving parties’ respective anti-SLAPP motions to strike the complaint pursuant to Code of Civil Procedure section 425.16. In the fourth appeal, the attorneys protest they were wrongly denied attorney fees to which they contend they were entitled as a matter of law under the anti-SLAPP statute.
A decades-long fictional court case in chancery in Charles Dickens’s novel, Bleak House.
Defendants Richard Carlburg, George Kallas, Catherine J. Lesnick, Jimmy Patopoff, James Strang, Shirley Vogt, Mark Nelson, and James P. McIntyre are alleged to have been directors and officers of the HOA. Defendant Regina Alcantera is alleged to have been a director, but not an officer, of the HOA. Defendants James Bay, Chuck Bagby, and Elizabeth A. McIntyre are alleged to have been members of the HOA, i.e., homeowners.
All further statutory references are to the Code of Civil Procedure unless otherwise stated. “SLAPP is an acronym for ‘strategic lawsuits against public participation.’ [Citation.] A special motion to strike a SLAPP action, codified in . . . section 425.16, provides a procedural remedy to gain an early dismissal of a lawsuit or a cause of action that qualifies as a SLAPP.” (Slaney v. Ranger Ins. Co. (2004) 115 Cal. App.4th 306, 309, fn. 1.)
The court properly granted the anti-SLAPP motions and denied attorney fees. Thus we affirm the judgments of dismissal and the order denying fees.
Two motions are pending in this court regarding the appellate record. The Tezaks moved to augment the record on appeal with three documents: A February 24, 2003, minute order in the Greenbrook litigation; a request for judicial notice filed in the trial court in this action for a hearing on October 26, 2005; and a request for correction and clarification of judgment filed in the Greenbrook litigation on June 1, 2006. The motion to augment is granted with respect to the February 24, 2003, minute order in the Greenbrook litigation; the other two requests are denied. The Tezaks did not provide a copy of their request for judicial notice in the trial court for the October 26, 2005 hearing, and the request for correction and clarification of the judgment in the Greenbrook litigation is not relevant to any issue on appeal.
I. The Complaint
Eschewing the motto “less is more, ” the Tezaks filed a 93-page complaint (exclusive of exhibits), comprising 13 causes of action, stated in 431 paragraphs, and naming 16 defendants. Concluding in a 26-paragraph prayer, the complaint sought relief under legal theories of: malicious prosecution; abuse of process; slander of title; intentional infliction of emotional distress; negligent infliction of emotional distress; invasion of privacy; breach of fiduciary duty; breach of declaration of covenants, conditions and restrictions; anticipatory breach of covenants, conditions and restrictions; breach of implied covenant of good faith and fair dealing; declaratory relief; injunctive relief; and accounting.
To place the Tezaks’ complaint in context, we pause to review the underlying Greenbrook litigation. In Greenbrook, the HOA sued the Tezaks to compel them to remove a structure that had been erected without the HOA’s consent or approval, allegedly in violation of the CC&R’s. Apparently believing a single cause of action seeking to enjoin the alleged breach of the CC&R’s was somehow insufficient to accomplish its desired end, the HOA asserted two additional causes of action: (1) a claim for an injunction to restrain a trespass on the HOA’s equitable servitude based on the questionable theory that an equitable servitude is the functional equivalent of an easement; and (2) damages for the alleged trespass. The HOA took another questionable action: It recorded a lis pendens on the Tezaks’ property giving notice of its action to “enforce equitable servitudes encumbering the” Tezaks’ property.
When the matter came to trial, the court suggested the HOA dismiss the damages claim without prejudice, and treat the two injunction claims as a single claim for breach of the CC&R’s seeking an injunctive remedy. Adopting the court’s suggestion, the HOA moved to dismiss the damages claim without prejudice, and the case proceeded to trial as a request for injunction based on the alleged breach of the CC&R’s. This procedure forms the backdrop for a substantial part of the Tezak’s present complaint; they assert the HOA’s voluntary dismissal of the trespass damages claim, and the effective merging of the trespass injunction claim into the breach of CC&R’s injunction claim, constituted a termination of at least that part of the Greenbrook litigation in their favor providing the basis for their present malicious prosecution claim.
We turn now to a more complete description of the Tezaks’ present complaint. Our description is necessarily selective, given the extreme wordiness of the complaint. The complaint is a model of verbose, conclusory, and vague pleading, bordering on the unintelligible. But we are not reviewing a ruling on a demurrer. Our task is to determine whether each cause of action clears the anti-SLAPP hurdle. To that end, we do our best to distill, from the Tezaks’ prolix, activity that gives rise to the asserted liability. We select those allegations most relevant to our analysis of the anti-SLAPP motions presently at issue.
A. Claims Against Both the Attorney Defendants and the Homeowner Defendants
We review first the allegations made jointly against the attorney defendants and the homeowner defendants. A common thread pervades the complaint, despite its seeming breadth. The first three causes of action identify the nub of the perceived wrong; the malicious prosecution of the Tezaks in the Greenbrook litigation, abuse of process in the course of that litigation, and slander of the Tezaks’ title by the wrongful recordation of a lis pendens giving notice of that litigation. The next three tort claims incorporate anywhere from 253 to 291 paragraphs of the earlier allegations, and contain additional conclusory allegations charging that this previously-alleged conduct constituted variously the intentional or negligent infliction of emotional distress and invasion of privacy.
Thus, in the malicious prosecution cause of action, the Tezaks allege the defendants maliciously instituted civil proceedings against them “for a trespass to an easement and damages due to trespass, for an alleged ‘use’ restriction under the governing documents to [the HOA], ” and based on those causes of action recorded a lis pendens against the Tezaks’ property. In the abuse of process cause of action, the Tezaks allege the attorneys abused the court’s process in two ways: (1) by obtaining an order for the judgment debtor examination of Anice Tezak while the Greenbrook appeal was pending, and by seeking to enforce that order with a bench warrant; and (2) by obtaining an order to show cause why the Tezaks should not be held in contempt for the willful disobedience of the judgment in Greenbrook. The slander of title action is again based upon the recordation of the lis pendens in the Greenbrook litigation. The causes of action for intentional and negligent infliction of emotional distress contained no identifiable additional allegations of fact concerning the defendants’ conduct, but conclude the conduct caused “extreme and permanent mental and emotional distress.” Similarly, the cause of action for invasion of privacy concludes, based on no additional alleged conduct, that the Tezaks have suffered an invasion of their privacy.
B. Claims Against the Homeowners
Only the homeowners are charged in the seventh through thirteenth causes of action. The Tezaks incorporate the allegations made in each of the first six causes of action, and plead some additional facts as well.
In the seventh cause of action for breach of fiduciary duty, the Tezaks allege two activities which they assert constitute a breach of fiduciary duty: (1) the selective enforcement of the CC&R’s, i.e., enforcing the CC&R’s against the Tezaks in the Greenbrook litigation, while not enforcing similar violations against other homeowners; and (2) mismanaging the HOA by, inter alia, increasing HOA expenditures “beyond those that were budgeted or allowed by the [CC&R’s]” and by the prosecution of the Greenbrook litigation for the homeowner defendants’ “own pecuniary benefit.”
In the eighth cause of action for breach of the CC&R’s, the Tezaks allege the defendants increased “assessments in excess of the 3% without member approval and budgeting for items other than for maintenance and capitol [sic] improvements to the common areas” in violation of Part II, Article VI, section 3 of the CC&R’s. Further, “[a]fter making these assessment payments, [the Tezaks] became aware that these assessments were to be paid to frivolous litigation fees and out of reserve accounts.”
The ninth cause of action, labeled “anticipatory breach” of the CC&R’s, contains allegations to the effect that defendants were attempting to change the CC&R’s prior to December 31, 2011. According to these allegations, this conduct, undertaken before December 31, 2011, violates Part I, paragraph 11, and Part II, Article IX, section 3 of the CC&R’s.
The tenth cause of action is labeled “breach of implied covenant of good faith and fair dealing.” The Tezaks allege their relationship with defendants was “fundamentally contractual, ” but nevertheless allege an entitlement to punitive damages and emotional distress damages for the alleged violation of the good faith covenant. The Tezaks are exceedingly vague about what conduct constituted such a violation, alleging only that defendant homeowners “have violated the implied covenant of good faith and fair dealing” “[a]s a result of the actions . . . set forth hereinabove.”
The Tezaks seek declaratory relief in the eleventh cause of action for the asserted purpose of declaring “certain residential restrictions invalid and/or clarification for specific ‘uses’ and ‘improvements, ’” and again allege defendants’ are prohibited from modifying the CC&R’s “for the next 10 years.”
In the twelfth cause of action, the Tezaks seek an injunction against defendants prohibiting them from changing the CC&R’s “prior to expiration of its term.”
Finally, in the thirteenth cause of action, the Tezaks allege they have demanded an inspection of the books and records of account of the HOA, and were denied their alleged right to do so.
II. The Motions and the Rulings
The attorney defendants and the homeowner defendants presented separate special motions to strike the complaint under section 425.16 (the anti-SLAPP statute). The court granted each motion in its entirety, but denied attorney fees as to the attorney defendants. The Tezaks appeal the orders striking their complaint and the attorney defendants appeal the order denying their attorney fees.
DISCUSSION
The anti-SLAPP statute, which is to be “construed broadly, ” provides that “[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.” (§ 425.16, subds. (a) & (b)(1).) The activity protected by the statute includes: “(1) any written or oral statement or writing made before a . . . 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 . . . 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.” (§ 425.16, subds. (e).)
In bringing an anti-SLAPP motion, the defendant bears the initial burden of establishing the targeted action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If the defendant makes the requisite showing, the burden shifts to the plaintiff to establish through competent evidence a probability that he or she will prevail on the merits of the targeted claim. (Ibid.) Plaintiff does this by proving “‘“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.”’” (Navellier v. Sletten (2002)29 Cal.4th 82, 89.) We review orders granting anti-SLAPP motions de novo. (Kashian v. Harriman (2002) 98 Cal. App.4th 892, 906.)
I. All of the Causes of Action Arise From Protected Activity
Our first task is to determine which of the 13 causes of action asserted by the Tezaks arise from protected activity. (Equilon, supra, 29 Cal.4th at p. 67.) A cause of action arises from protected activity if it is “based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78. “[A] claim filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. [Citation.] That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Ibid.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)
Applying these rules to the Tezaks’ complaint is an easy task as to some of their claims; more difficult as to others. First, the easy part.
A. The First Six Causes of Action
The causes of action for malicious prosecution, abuse of process, and slander of title are based on petitioning activity, i.e., the act of filing the complaint in the Greenbrook litigation and conducting other activities in the course of that prosecution, such as attempting to conduct a judgment debtor’s examination, seeking to hold Anice Tezak in contempt, and recording a lis pendens to give notice of the litigation. By definition, a cause of action for malicious prosecution arises from petitioning activity. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.) Likewise, a cause of action for abuse of process is subject to the anti-SLAPP statutes because it also arises from the exercise of the right of petition. (Siam v. Kizilbash (2005) 130 Cal. App.4th 1563, 1570.) The slander of title action is based on the recordation of a lis pendens in the Greenbrook litigation. A lis pendens, or, as known in modern usage, a “notice of pendency of action, ” is simply a notice that an action is pending in which a cause of action would, if meritorious, affect title to or the right to possession of specific real property or the use of an easement described in the pleading. (§§ 405.2, 405.4.) “[T]he recordation of a notice of lis pendens is in effect a republication of the pleadings.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 379.) Thus, the recordation of a lis pendens also arises from the exercise of the right of petition, and further, is plainly a “writing made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(2).) The alleged slander of title based on the recordation of the lis pendens is therefore subject to the anti-SLAPP statute.
As noted above, the causes of action for invasion of privacy, and intentional and negligent infliction of emotional distress do not add any identifiable additional facts except that the conduct in connection with the Greenbrook litigation caused the Tezaks emotional distress. But “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.) Without question, these claims also arise from protected petitioning activity.
Accordingly, it cannot be gainsaid that the allegations in the first six causes of action against the attorney defendants and the homeowner defendants all arise from their conduct in instituting the Greenbrook litigation and actions they took in the course of those proceedings. The Tezaks acknowledge as much in their opening brief. After identifying the “primary cause of action for Malicious prosecution” and the “related secondary cause of action for Slander to title, ” the Tezaks acknowledge the “remaining tort causes of action are simply various other theories, with some additional facts, on which Tezaks sought to recover damages relating to the same general circumstances giving rise to the Malicious prosecution and Slander to title. The facts are all related to the series of events in the underlying action that led to [the Tezaks’] present action after obtaining a favorable termination and released [sic] of liability from the second and third causes of action in the underlying action.”
There remains the hard part — determining which of the remaining causes of action (alleged only against the homeowner defendants) arise from protected activity. Each of the remaining causes of action arguably includes allegations of both protected activity and nonprotected activity. “[W]here a cause of action is based on allegations that include protected and nonprotected activities, the cause of action is vulnerable to a special motion to strike under the anti-SLAPP statute only if the protected conduct forms a substantial part of the factual basis for the claim.” (A.F. Brown Electrical Contractors, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal. App.4th 1118, 1125.) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statutes 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 apply these principles to the remaining causes of action.
B. Seventh Cause of Action — Breach of Fiduciary Duty
The Tezaks complain the homeowner defendants breached their alleged fiduciary duty by selectively enforcing the CC&R’s, by increasing HOA expenditures “beyond those that were budgeted or allowed by the [CC&R’s], ” and by the prosecution of the Greenbrook litigation for the homeowner defendants’ “own pecuniary benefit.” After reading the complaint as a whole, including the 291 paragraphs incorporated by reference in the seventh cause of action, it is clear to us that the principal thrust or gravamen of the asserted breach of fiduciary duty is the prosecution of the Greenbrook litigation against the Tezaks while allowing others in the community to violate the CC&R’s without challenge, and the expenditure of HOA funds for the purpose of prosecuting the Greenbrook litigation. Protected petitioning activity constitutes a substantial part of the alleged wrongdoing. Thus, the seventh cause of action is subject to the anti-SLAPP statute.
C. Eighth Cause of Action — Breach of the CC&R’s
The eighth cause of action for breach of the CC&R’s is likewise transparently complaining about the prosecution of the Greenbrook litigation, but in the guise of increasing homeowner assessments “for items other than for maintenance and capitol [sic] improvements to the common areas, ” and using the assessments for “frivolous litigation fees.” The incorporation of the previous 331 paragraphs makes rather clear the “frivolous litigation fees” alleged by the Tezaks are the fees incurred in the Greenbrook litigation. Accordingly, we easily conclude the principal thrust or gravamen of the eighth cause of action is the protected petitioning activity in the Greenbrook litigation, and the claim is subject to the anti-SLAPP statute.
D. Ninth Cause of Action — Anticipatory Breach of the CC&R’s
The analysis of the ninth cause of action is somewhat different. In addition to incorporating 361 paragraphs, the substantial portion of which involves the Greenbrook litigation, the Tezaks allege, in substance, that the CC&R’s prohibit any amendment until the year 2011, and that defendants, in violation of this asserted prohibition, are taking steps to amend the CC&R’s. The specifically alleged acts in pursuit of amendment are: (1) the solicitation by the HOA board of directors of recommendations for changes to the CC&R’s for submittal to the members of the HOA; and (2) the announcement at a board of directors meeting that several homeowners present at the meeting were in violation of the CC&R’s and their support of proposed amendments would eliminate their own violation. William Tezak’s declaration, submitted in opposition to the anti-SLAPP motion, describes a regular meeting of the board of directors “dealing with the proposed effort to amend the CC&R[’]s” and states that over “70 angry homeowners” demanded the board “discontinue this proposal to move to change the CC&R[’]s.”
Thus, apart from the incorporation of 361 previous paragraphs, the principal thrust of the ninth cause of action is the threatened amendment of the CC&R’s. This conduct, however, constitutes protected activity under section 425.16, subdivision (e)(3): “[A]ny 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.” Homeowner association board meetings and newsletters have been held to be “public forums” under subdivision (e)(3), (Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App.4th 468, 475-478), and, where the conduct relates to governance of the HOA, the “‘public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Id. at p. 479.) The potential amendment of the CC&R’s concerns the governance of the HOA, “in a manner similar to that of a governmental entity, ” and is manifestly a matter of importance to the members of the 450-home Greenbrook community. Efforts to amend the CC&R’s thus constitute protected activity under the anti-SLAPP statute.
E. Tenth Cause of Action — Implied Covenant of Good Faith
The tenth cause of action contains no additional material facts. It merely attempts to create a tort out of the alleged breach of the CC&R’s. As we have noted, it “is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability” (Navellier, supra, 29 Cal.4th at p. 92) that must be analyzed to determine whether the anti-SLAPP statute applies. Since no additional material facts are alleged beyond those incorporated in the previous 380 paragraphs which, we have already concluded substantially constitute protected activity, the tenth cause of action also is subject to the anti-SLAPP statute.
F. Eleventh, Twelfth and Thirteenth Causes of Action — Declaratory Relief, Injunction, and Accounting
In the final three causes of action the Tezaks allege the existence of a controversy concerning the residential restrictions in the CC&R’s, namely, the same controversy giving rise to the Greenbrook litigation and the efforts being made to amend the CC&R’s, that the defendants should be enjoined from modifying the CC&R’s, and that defendants should account for their misuse of HOA funds by initiating malicious litigation. We have concluded all of this activity is protected activity under the anti-SLAPP statute. The Tezak’s request for the additional remedies of declaratory relief, injunction and accounting does not change the underlying conduct at the heart of this action.
II. The Tezaks Have Failed to Demonstrate a Probability of Prevailing on Any of Their Claims
We turn to the second prong of the anti-SLAPP analysis. The Tezaks had the burden to demonstrate a probability of prevailing on each of their causes of action. To meet this burden, they were required to “‘“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.”’” (Navellier, supra, 29 Cal.4th at pp. 88-89.) Thus, we examine the Tezak’s allegations and evidence for each of their 13 causes of action. We consider only evidence that would be admissible at trial. (Gilbert v. Sykes (2007) 147 Cal. App.4th 13, 26.) “[D]eclarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Ibid.) We “accept[] all admissible evidence [from plaintiff] as true and indulge[] in every reasonable inference to be drawn from that evidence.” (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal. App.4th 39, 52; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal. App.4th 204, 212.) We do not “weigh the credibility or comparative probative strength of competing evidence.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson).)
A. First Cause of Action: Malicious Prosecution
In California, “the elements of the [malicious prosecution] tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) To that end, a malicious prosecution plaintiff must “‘plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations.]’” (Crowley v. Katleman (1994) 8 Cal.4th 666, 676.)
The favorable termination requirement is not satisfied by a partial victory. (StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal. App.4th 1392 (StaffPro).) The Tezaks nevertheless rely upon the HOA’s dismissal of its trespass cause of action in the Greenbrook litigation, and the effective dismissal of its claim for an injunction to restrain that trespass, as sufficient to sustain their malicious prosecution case. According to their argument, a voluntary dismissal is a favorable termination, and a favorable termination of two causes of action in the Greenbrook litigation satisfies their burden on the malicious prosecution claim, even though they lost on the HOA’s claim for an injunction compelling removal of the unapproved fence. The Tezaks argument “demonstrates the flaw that lies at the core of [their] analysis, namely, the failure to distinguish between cases evaluating the probable cause element of the tort of malicious prosecution . . . and those that concern the distinct element at issue here — favorable termination.” (StaffPro, at p. 1402.) While the maintenance of a malicious prosecution action requires only one of several causes of action in the underlying case to have been commenced without probable cause, the malicious prosecution plaintiff must nevertheless plead and prove a favorable termination of the entire underlying action.
Whether a malicious prosecution action will lie where the plaintiff prevailed on some, but not all, of the causes of action in the underlying action is an issue that has divided the courts. (See, e.g., StaffPro, supra, 136 Cal. App.4th 1392 [favorable termination requires plaintiff to have prevailed entirely in underlying case]; Dalany v. American Pacific Holding Corp. (1996) 42 Cal. App.4th 822 [same]; Sierra Club Foundation v. Graham (1999) 72 Cal. App.4th 1135 [prevailing on severable claims is sufficient to satisfy favorable termination requirement]; Paramount General Hospital Co. v. Jay (1989) 213 Cal. App.3d 360 [same].) The StaffPro court undertook an extensive analysis of the conflicting decisions and concluded that, with the exception of one case, all of the cases decided after the Supreme Court decision in Crowley v. Katelman (1994) 8 Cal.4th 666 (Crowley) had concluded a partial favorable termination is insufficient to satisfy the favorable termination requirement. And this is true even though the underlying claims are severable in the sense that the violation of more than one primary right was alleged. (StaffPro, supra, 136 Cal. App.4th at pp. 1403-1404.) Based also on its reading of Crowley, a different panel of the same court had earlier reached the same conclusion in Dalany v. American Pacific Holding Corp, supra, 42 Cal. App.4th 822. We agree. As we now explain, it is difficult, if not impossible, to read Crowley differently.
The stated purpose of the Supreme Court’s review in Crowley was to decide whether the court should reaffirm the rule of Bertero v. National General Corp. (1974) 13 Cal.3d 43 (Bertero), “that a suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.” (Crowley, supra, 8 Cal.4th at p. 671.) After an extended analysis, Crowley did, in fact, adhere to the Bertero rule. In doing so, however, the Supreme Court found it necessary to distinguish cases which, it had been argued, set forth a rationale inconsistent with the Bertero rule, principally Friedberg v. Cox (1987) 197 Cal. App.3d 381 (Friedberg). In Friedberg, a defendant in a malicious prosecution action had obtained a summary judgment on the ground the underlying action had not been terminated favorably to the malicious prosecution plaintiff. The plaintiff in the underlying action (defendant in the malicious prosecution case) had obtained a judgment on one cause of action, but lost on three others. In the course of rejecting the malicious prosecution claim based on a partial favorable termination, the Friedberg court had included a discussion of the “‘primary right’ theory of pleading followed in California” (id. at p. 388) and had relied in part on that theory in holding that only one “primary right” was violated in the underlying case, and, by prevailing on one cause of action, the plaintiff had successfully remedied the breach of that single right. Reliance on the primary right theory of pleading, and the severability analysis which inevitably follows, thus potentially threatened the validity of the Bertero rule that allows a malicious prosecution case to proceed provided at least one of several causes of action was maliciously prosecuted without probable case.
In rejecting reliance on the primary right theory advanced in Friedberg, the Crowley court explained the Friedberg decision was not about whether plaintiff in the underlying action had probable cause to bring all of the causes of action asserted against the defendant, but, rather more simply, whether the underlying action had terminated favorably. (Crowley, supra, 8 Cal.4th at p. 684.) The Crowley court held it had been unnecessary in Friedberg for the court to have engaged in a severability analysis based on a “primary right” theory of pleading to reach its result. The fact of a partial favorable termination was enough to deny the malicious prosecution claim. The Crowley court concluded its analysis of the decisions potentially at odds with Bertero by quoting with approval Jenkins v. Pope (1990) 217 Cal. App.3d 1292, 1300. “‘[T]he Supreme Court’s holding that a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause [citation] does not alter the rule there must first be a favorable termination of the entire action. [Citation.] In Bertero, the question whether all or only part of the prior action had to be without probable cause arose only after judgment had been reached in the plaintiff’s favor in the prior action as a whole.’” (Crowley, supra, 8 Cal.4th at p. 686.) The Supreme Court has reaffirmed this view, albeit in dicta, in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336. “To determine ‘whether there was a favorable termination, ’ we ‘look at the judgment as a whole in the prior action . . . .’” (Id. at p. 341, italics added.)
Looking at the judgment as a whole in the Greenbrook litigation, it is obvious the case was not terminated favorably to the Tezaks. The HOA sued to compel the Tezaks to remove a fence constructed in violation of the CC&R’s. The HOA was successful in obtaining an injunction compelling the removal of the fence, and that judgment was affirmed on appeal. The HOA won the case. The Tezaks lost. It does not get much simpler than that. Accordingly, the Tezaks could not overcome the second prong of the anti-SLAPP analysis. There was no possibility whatsoever they could prevail on the malicious prosecution claim.
B. Second Cause of Action: Abuse of Process
“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) The Tezaks cannot prevail on their claim based, as it is, on the alleged wrongful pursuit of (1) a judgment debtor examination and (2) a contempt citation. Both matters were absolutely privileged.
The Tezaks allege defendants pursued a judgment debtor examination of Anice Tezak in August 2004 “while the case of Greenbrook v. Tezak was pending an appeal knowing . . . that . . . § 917.1(d) stayed all processes and proceedings while a matter is on appeal.” Apparently the pleading is in error. The remittitur in the Greenbrook litigation was issued on April 2, 2004, thus ending any automatic stay of the cost award some four months before the alleged abuse. However Anice Tezak stated in her declaration that a bench warrant for her arrest for failure to appear at a judgment debtor’s examination was issued on July 28, 2003, a time when the Greenbrook litigation was, in fact, still pending in our court.
Assuming the truth of the July 2003 timeframe, it is clear defendants should not have been pursuing a judgment debtor examination. The only money awarded in the Greenbrook litigation was for attorney fees and costs. “Except as provided in Sections 917.1 to 917.9, inclusive, . . . the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from . . . including enforcement of the judgment or order.” (§ 916, subd. (a).) And section 917.1, subdivision (d) provides that an undertaking is not required to stay an award of costs, including attorney fees. (Ziello v. Superior Court (1999) 75 Cal. App.4th 651.) Accordingly, collection efforts were automatically stayed pending the appeal, and should not have been pursued.
We agree the Tezaks had cause to be outraged at the conduct of defendants for having caused an arrest warrant to be issued for failure to appear at an examination which was stayed by operation of law. Nevertheless, there is no hope they can prevail on the abuse of process claim because the alleged activity was absolutely privileged under the litigation privilege of Civil Code section 47, subdivision (b). “A privileged publication . . . is one made [¶] . . . [¶] [i]n any . . . judicial proceeding.” (Civ. Code § 47, subd. (b).) Our Supreme Court has recently held the privilege applies to an abuse of process claim based on a communicative act and to “those noncommunicative actions which are necessarily related to that communicative act.” (Rusheen, supra, 37 Cal.4th at p. 1052.) In Rusheen, the court held “postjudgment enforcements efforts, including the application for writ of execution and act of levying on property, were protected by the privilege” (ibid.), where the default judgment had been obtained by the communicative act of submitting false declarations of service. So it is here. The pursuit of collection efforts, including the obtaining of a bench warrant for Anice Tezak’s arrest, were necessarily commenced by a communicative act in a judicial proceeding, the submission of a written application for an order for judgment debtor examination. (§ 708.110, subd. (a).) Under Rusheen, the related acts that followed were absolutely privileged. “[T]he litigation privilege is absolute and applies regardless of malice.” (Rusheen, supra, 37 Cal.4th at p. 1063.) “[M]odern public policy seeks to encourage free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation-related misconduct and by favoring sanctions within the original lawsuit.” (Ibid.) Thus, while we do not condone the alleged conduct, we must hold it absolutely privileged.
Similarly, the other act constituting an alleged abuse of process was the pursuit of a judgment of contempt in August 2004. But a proceeding for indirect contempt is initiated by a communicative act in a judicial proceeding — the filing of a declaration or affidavit with the court causing the court to issue an order to show cause re contempt. (§ 1211, subd. (a) [“When the contempt is not committed in the immediate view and presence of the court . . . an affidavit shall be presented to the court or judge of the facts constituting the contempt”.) Under Rusheen, the acts of presenting the affidavit and its related aftermath were also absolutely privileged.
Accordingly, the court correctly granted the anti-SLAPP motion as to the abuse of process claim. The Tezaks had no probability of prevailing.
C. Third Cause of Action: Slander of Title
The Tezaks claim for slander of title is based on their assertion that defendants recorded a lis pendens against their property giving notice that the Greenbrook action was pending “to enforce equitable servitudes encumbering the subject property.” This lis pendens was very likely misguided. A lis pendens may only be recorded by one who asserts a “real property claim.” (§ 405.20.) A “real property claim, ” in turn, is defined as a “cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading.” (§ 405.4.) Since nothing in the Greenbrook litigation involved the title to or the right to possession of the Tezaks’ property, defendants took the position that an equitable servitude is the same as an easement for purposes of the lis pendens statute. We doubt the language can be stretched that far. The cases relied upon by defendants are all marginally inapt. But we need not discuss defendants’ cited authority or, indeed, decide that issue because, in any event, the recordation of the lis pendens was absolutely privileged under the litigation privilege of Civil Code section 47, subdivision (b). (Albertson v. Raboff, supra, 46 Cal.2d at p. 379.) “The publication of the pleadings is unquestionably clothed with absolute privilege, and we have concluded that the republication thereof by recording a notice of lis pendens is similarly privileged.” (Ibid.) That the recordation of the lis pendens may have been unmeritorious because the claim did not qualify as a real property claim is of no moment. If done maliciously and without probable cause, the remedy of malicious prosecution is still available since the litigation privilege does not apply to that tort. (Id. at p. 382 [“[T]he fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case”].) But here, as explained above, the Tezaks have no recourse to a malicious prosecution action because they did not achieve a favorable termination of the entire action. Thus, there is no probability the Tezaks will prevail on their slander of title action. The court correctly granted the anti-SLAPP motion on this claim.
In Crowley, supra, 8 Cal.4th at page 685, the Supreme Court explained that the severability discussion in Albertson, dealt only with the appealability of a severable part of the judgment. Crowley did not discuss (or confront) the uncomfortable fact that the Albertson court had permitted a malicious prosecution case to go forward in the trial court, even though the malicious prosecution plaintiff had suffered an adverse judgment on one cause of action in the underlying case. Despite Crowley not expressly disapproving the actual disposition in Albertson, there can be little question about the rule to be derived: a favorable termination for malicious prosecution purposes must be measured with respect to the entire judgment in the underlying action.
D. Fourth Through Sixth Causes of Action: Intentional and Negligent Infliction of Emotional Distress and Invasion of Privacy
The fourth through sixth causes of action add nothing to the claims made in the Tezaks’ first three causes of action, except that they suffered emotional distress. Dressing up these causes of action by labeling them intentional and negligent infliction of emotional distress and invasion of privacy does not avoid the litigation privilege as to the alleged conduct of pursuing collection efforts while the underlying action was stayed, pursuing a contempt citation, or recording a lis pendens. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [The litigation privilege “is now held applicable to any communication, whether or not it amounts to a publication . . ., and all torts except malicious prosecution”] italics added.) And simply relabeling allegations of malicious prosecution as intentional or negligent infliction of emotional distress or invasion of privacy is insufficient to remove the conduct from the “carefully circumscribed” (Sheldon Appel, supra, 47 Cal.3d 863, 872) elements of the malicious prosecution tort. Moreover, evidence of emotional distress is lacking. The closest the Tezaks come to providing evidence of such distress are the conclusory statements in their declarations that they are “being subjected to continued harassment and undue personal injury based on the Board members herein and its agents acts and conduct . . . .” This is not the stuff of a prima facie claim of emotional distress. The court did not err in granting the anti-SLAPP motions as to the fourth through sixth causes of action.
E. Seventh and Eighth Causes of Action: Breach of Fiduciary Duty and Breach of the CC&R’s
The Tezaks failed to establish probable validity of their causes of action for breach of fiduciary duty and breach of the CC&R’s for lack of evidence. As described above, except for realleging the first six causes of action by incorporation, the Tezaks complain additionally about wrongful expenditures by the HOA and the prosecution of the Greenbrook litigation for the homeowner defendants’ “own pecuniary benefit, ” and the use of assessments for “frivolous litigation fees.” The “evidence” offered in opposition to the anti-SLAPP motions consisted of the declarations of William and Anice Tezak. These declarations are a model of inadmissible matter. “[D]eclarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Gilbert v. Sykes, supra, 147 Cal. App.3d at p. 26.) The Tezaks’ declarations are all of that. And even if we disregard the technical rules of evidence, there is simply nothing contained in the wordy and argumentative declarations demonstrating a breach of fiduciary duty or a breach of the CC&R’s. That a war of wills is raging in the community regarding whether recreational vehicles may be parked on an owner’s property is certainly demonstrated. But nothing concrete is shown suggesting the breach of a fiduciary duty or a breach of the CC&R’s. The court correctly granted the anti-SLAPP motion on the seventh and eighth causes of action.
F. Ninth Cause of Action: Anticipatory Breach of CC&R’s
The Tezaks claim in the ninth cause of action that the homeowner defendants are wrongfully soliciting an amendment to the CC&R’s which, they assert, may not be amended until 2011. The Tezaks misread the CC&R’s. Part I, paragraph 11 of the CC&R’s provides: “The covenants in this Part I are to run with the land and shall be binding on all parties and persons claiming under them until December 31, 2001, at which time said covenants shall automatically be extended for successive periods of ten (10) years, unless by a vote of a majority of the then owners of the lots, it is agreed to change said covenants in whole or in part.” The Tezaks read the phrase “then owners of the lots” to be those persons who own lots on December 31, 2001, December 31, 2011, December 31, 2021, etc. Under this reasoning, a vote to amend cannot be held except on the 31st day of the last month of each successive 10-year period.
We conclude the Tezak’s reasoning is strained; moreover it yields an unlawful result. The phrase “then owners of the lots” is more reasonably interpreted to refer to the persons owning the lots at the time the votes to amend are submitted. In other words, only the current owners get to vote.
Any other construction would render the provision unlawful. Civil Code section 1355, subdivision (b) provides: “Except to the extent that a declaration provides by its express terms that it is not amendable, in whole or in part, a declaration which fails to include provisions permitting its amendment at all times during its existence may be amended at any time.” (Italics added.) The Greenbrook CC&R’s do not contain any provision suggesting it is not amendable. Thus, if the Tezak’s interpretation of the CC&R’s is correct, the CC&R’s would necessarily fail to permit amendment “at all times during its existence.” Under Civil Code section 1355, subdivision (b), the CC&R’s are therefore amendable at any time.
Accordingly, as a matter of law, the Tezaks cannot prevail on their ninth cause of action and the court correctly granted the anti-SLAPP motion as to that claim.
G. Tenth Cause of Action: Implied Covenant of Good Faith
In their tenth cause of action, the Tezaks attempt to create a tort out of the alleged breach of the implied covenant of good faith and fair dealing. “Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, ‘compensation for its breach has almost always been limited to contract rather than tort remedies.’” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43.) The Supreme Court has “recognize[d] only one exception to that general rule: tort remedies are available for a breach of the covenant in cases involving insurance policies.” (Ibid.) Here, no insurance policy is involved.
Accordingly, to the extent the Tezaks seek a tort remedy for the alleged breach, they cannot prevail as a matter of law. To the extent they merely seek contract damages, the evidence does not establish a probability they will prevail as discussed above with regard to the eighth cause of action for breach of the CC&R’s. Thus, the court correctly granted the anti-SLAPP motion as to the tenth cause of action.
H. Eleventh, Twelfth and Thirteenth Causes of Action: Declaratory Relief, Injunction and Accounting
The remedies sought in the eleventh, twelfth, and thirteenth causes of action are dependent on the viability of some or all of the first 10 causes of action. Having concluded the Tezaks have not demonstrated a probability of prevailing on any of them, the court correctly granted the anti-SLAPP motion on the final three causes of action as well.
III. The Tezaks’ Remaining Contentions Lack Merit
The Tezaks raise several miscellaneous issues, none of which have merit.
Their contention the court erred when it denied their motion for reconsideration is rendered moot by our decision.
The Tezaks also claim the homeowner defendants were not entitled to attorney fees, citing Trope v. Katz (1995) 11 Cal.4th 274 (Trope). But the homeowner defendants were not self represented. They were represented by a law firm independent of the attorney defendants. Trope is inapt, and the homeowner defendants, having prevailed on their anti-SLAPP motion were entitled to their attorney fees under the mandate of section 425.16, subdivision (c).
The Tezaks also complain the court refused to prepare a statement of decision. But a statement of decision is only required “upon the trial of a question of fact by the court.” (§ 632.) An anti-SLAPP motion is not a trial of a question of fact. Quite the opposite. In ruling on the motion the court must not “weigh the credibility or comparative probative strength of competing evidence.” (Wilson, supra, 28 Cal.4th at p. 821.) Denying a statement of decision on an anti-SLAPP motion is consistent with the general rule: A statement of decision “is neither required nor available upon decision of a motion.” (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal. App.3d 1019, 1026.) Moreover, a statement of decision on an anti-SLAPP motion, while perhaps helpful to the appellate court in understanding the reasoning of the trial court, is not essential. We review rulings on anti-SLAPP motions de novo. (Kashian, supra, 98 Cal. App.4th at p. 906.)
Finally, the Tezaks assert the judgment must be reversed because the trial judge was biased. The Tezaks’ motion for disqualification of the trial judge was decided adversely to them on July 14, 2005. That order is not appealable, and may be challenged only by an extraordinary writ petition filed within 10 days after service of the order denying the disqualification motion. (§ 170.3, subdivision (d).) We are thus without power to review the denial of the disqualification motion.
IV. Elizabeth McIntyre’s Joinder Was Not Prejudicial
Elizabeth McIntyre was separately represented. When the other 11 homeowner defendants filed their anti-SLAPP motion, she filed a “joinder” in the motion and the court included her as one of the prevailing parties. The Tezaks assert it was error to allow Elizabeth McIntyre’s joinder and to grant her relief, arguing it was untimely filed and did not meet the joinder requirements set forth in Decker v. U.D. Registry, Inc. (2003) 105 Cal. App.4th 1382, 1390-1391 (Decker). In Decker, the anti-SLAPP motion had been denied by the trial court and we concluded appellant’s “failure to bring his own motion to strike results in lack of standing to appeal.” (Id. at p. 1390.) Here, standing to appeal is not an issue. Elizabeth McIntyre is not appealing; she is a respondent seeking to uphold the trial court’s ruling. Since we review an order granting an anti-SLAPP motion de novo, we can determine whether the grounds for granting anti-SLAPP relief were equally applicable to the joining party. Here, the record does not disclose the plaintiffs were harmed by lack of proper notice of Elizabeth’s request to join the homeowner defendants’ motion. The Tezaks made the same charging allegations against Elizabeth McIntyre as they made against the other homeowner defendants. Thus, Elizabeth McIntyre stands in the same position as the other homeowner defendants, including her husband James McIntyre who was one of the original moving parties. Accordingly, she was entitled to the same anti-SLAPP relief as the moving parties. Any error in granting her relief was harmless. The court did not abuse its discretion.
V. Conclusion and Denial of Sanctions
For the above reasons, the court correctly granted the anti-SLAPP motion as to all the defendants and we affirm the judgment. But the attorney defendants’ motion for sanctions on the ground the Tezaks’ appeal is frivolous is denied. The distinction between the probable cause requirement for a malicious prosecution action (only one of several causes of action must have been commenced without probable cause) and the favorable termination requirement (termination must be favorable for the entire action) has been the subject of judicial opinions only rather recently. Moreover, defendants paid scant attention to briefing the issues raised by the fourth through thirteenth causes of action, either in the trial court or here, making our de novo review more difficult. Thus, on this record, we cannot say the Tezaks’ appeal was “prosecuted for an improper motive” or that “it indisputably ha[d] no merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
VI. The Court Correctly Denied Attorney Fees to the Attorney Defendants
The attorney defendants appeal the denial of their claim for attorney fees after prevailing on their anti-SLAPP motion. They argue an award of fees is mandatory under section 425.16 when a defendant prevails on an anti-SLAPP motion.
In denying the attorney defendants’ application for fees, the trial court relied on Trope v. Katz, supra, 11 Cal.4th 274, a case which had denied attorney fees claimed by an attorney representing himself. The attorney defendants argue Trope is inapt because the decision was made under Civil Code section 1717. They contend the rule is different under section 425.16 and rely almost exclusively on Rosenaur v. Scherer (2001) 88 Cal. App.4th 260 (Rosenaur) in support of their contention.
Reliance on Rosenaur, supra, 88 Cal. App.4th 260, is misplaced. In Rosenaur, a law firm agreed to represent a defendant pro bono, and to accept as full recompense for its services the recovery of fees from any available insurance or from an award of the court. When the defendant prevailed on an anti-SLAPP motion, the plaintiffs opposed an award of fees, arguing that under defendant’s agreement with the law firm, defendant would never incur any fees for the firm’s services, and, under Trope, fees could therefore not be allowed. The Rosenaur court rejected that reasoning, holding that so long as fees were accrued by the law firm on behalf of the client in providing legal representation to defendant on the anti-SLAPP motion, the fees were recoverable. Observing the anti-SLAPP statute drew no distinction between “attorney fees for which the prevailing defendant is liable” and “those which have been accrued on behalf of the prevailing defendant” (id. at pp. 282-283), the Rosenaur court held the fees were recoverable. Importantly, the court added that “since attorneys are agents of their client [citation], the phrase, ‘entitled to recover his or her attorney fees, ’ can certainly include recovery of the fees that the defendant’s agent — the attorney — has accrued on defendant’s behalf, even if the agent has waived payment from defendant, but not their recovery otherwise.” (Id. at p. 283.)
Therein lies a critical distinction. The defendant in Rosenaur had retained an independent third party as his legal representative to provide legal representation. The defendant in Rosenaur was not self represented as in Trope. But here the attorney defendants assert they likewise were not self represented. In their view, the law corporation Feldsott & Lee “was defended by the work of its two in house attorneys, Marin L. Lee and Stanley Feldsott.” To be sure, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 (PLCM) held in-house counsel may recover attorney fees under Civil Code section 1717, even though the corporation had not paid those fees. The PLCM court distinguished Trope on the basis that a corporation represented by in-house counsel is not self represented. “A corporation represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney to provide professional legal services on its behalf. . . . The fact that in-house counsel is employed by the corporation does not alter the fact of representation by an independent third party. Instead, the payment of a salary to in-house attorneys is analogous to hiring a private firm on a retainer.” (PLCM, supra, 22 Cal.4th at p. 1093, italics added.) Here, in contrast, the “in-house lawyers, ” Feldsott and Lee, were not independent third parties. They were individually named in the lawsuit. Under these circumstances, their professional corporation is not entitled to an award of fees for their time.
Our conclusion in this regard is in agreement with the recent case of Witte v. Kaufman (2006) 141 Cal. App.4th 1201, which came to the identical conclusion on nearly identical facts. In Witte, a law firm argued, relying on PLCM Group, it was entitled to fees for the work done by the firm’s lawyers in representing the firm as a party to an action. The Witte court held: “Here, unlike PLCM Group and Gilbert [v. Master Washer & Stamping Co. (2001) 87 Cal. App.4th 212 (Gilbert)], but like Trope, there is no attorney-client relationship between [the firm] and its individual attorneys. The individual [firm] attorneys are not comparable to in-house counsel for a corporation, hired solely for the purpose of representing the corporation. The attorneys of [the firm] are the law firm’s product. When they represent the law firm, they are representing their own interests. As such, they are comparable to a sole practitioner representing himself or herself. Where, as in Gilbert, an attorney is sued in his or her individual capacity and he obtains representation from other members of his or her law firm, those other members have no personal stake in the matter and may, in fact, charge for their work. Not so with a law firm that is sued in its own right and appears through various members.” (Witte, supra, 141 Cal. App.4th at p. 1211.) Notably, the Witte court was the same court that decided Rosenaur.
For the first time at oral argument, the attorney defendants argued they were entitled to fees under the rationale of Gilbert, supra, 87 Cal. App.4th 212 and Mix v. Tumanjan Development Corp. (2002) 102 Cal. App.4th 1318 (Mix). We are not persuaded either case is apt to the facts here.
In Gilbert, supra, 87 Cal. App.4th 212, an attorney was sued individually and he was represented in the action by members of his own law firm. Although the Gilbert court allowed the attorney to recover attorney fees, its express holding demonstrates it is of no assistance to the attorney defendants here. “[A] lawyer represented by other members of his law firm is entitled to recover reasonable attorney fees where the representation involved the lawyer’s personal interests and not those of the firm.” (Id. at p. 214, italics added.)
In Mix, supra, 102 Cal. App.4th 1318, an attorney represented himself in an action, but used the legal services of an unrelated law firm to assist him, but the firm did not formally associate in the litigation. The pro se attorney requested an award of fees based upon the work of the unrelated law firm, but did not seek fees for his own time. (Id. at p. 1322.) The Mix court properly held the attorney was entitled to recover the fees incurred by the law firm. The mere fact the attorney had appeared in the lawsuit as a pro se litigant did not deprive him of fees incurred for legal representation by the independent law firm.
Here, there simply was no “independent third party” providing representation. The firm Feldsott & Lee used no independent attorneys to provide representation, either for itself or for the individual shareholders. Stanley Feldsott and Martin Lee were named as individual defendants along with the firm and they represented their own interests throughout. This, of course, was also the circumstance in Trope v. Katz, supra, 11 Cal.4th 274, where members of the firm Trope & Trope represented the firm’s interest in suing for their contractual attorney fees. Like the trial court, we are unable to distinguish the present case from Trope. Without involving an independent third party lawyer, the attorney defendants are not entitled to an award of attorney fees.
VII. Sanctions on Cross-appeal are Denied
The attorney defendants requested sanctions on their cross-appeal on the ground the Tezaks “committed unreasonable violations of the California Rules of Court.” While true, the violations did not impair the court’s ability in this case to decide the single issue raised on the cross-appeal. The motion for sanctions is denied.
DISPOSTION
The judgments and orders are affirmed. All requests for sanctions are denied. Defendants shall recover their costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.
The attorneys and homeowners request judicial notice of court files pertaining to Tezak v. Summers, OCSC Case No. 05CC00011, filed January 21, 2005, and to the Greenbrook litigation. We grant the request for judicial notice only with respect to the documents pertaining to the Greenbrook litigation and in all other respects deny it.