IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 14, 2010
XUMEI CHEN ET AL., PLAINTIFFS AND RESPONDENTS,
KATHERINE K. SUTHERLAND, DEFENDANT AND APPELLANT.
Santa Clara County Super. Ct. No. CV133580
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
Chen v. Sutherland
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Respondents Xuemei Chen, Cheong Ang, and Richard C. Conroy invested a total of $474,000 in an investment scheme involving the purchase and sale of heavy equipment. When they did not receive the promised return on their investments, respondents discovered that the investment scheme was fraudulent. They filed a lawsuit against appellant Katherine K. Sutherland, M.D. (Katherine)*fn1 and her husband Richard Sutherland (Richard),*fn2 whom they believed had induced them to participate in the fraudulent investment scheme and were therefore responsible for their losses under several contract and tort theories of liability.
Respondents also filed an application for a writ of attachment and a temporary protective order. The trial court issued a temporary protective order that prohibited the Sutherlands from accessing their bank accounts and transferring or encumbering their interest in their home. However, after 40 days the trial court denied the application for a writ of attachment and dissolved the temporary protective order. Katherine then filed a cross-complaint against respondents alleging that they were liable for abuse of process because they had sought to attach assets that far exceeded the value of their claims in order to force her to capitulate.
Respondents brought a special motion to strike the cross-complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16,*fn3 which provides that a cause of action arising from constitutionally protecting speech or petitioning activity is subject to a special motion to strike unless the cross-complainant establishes a probability of prevailing on the claim. (§425.16, subd. (b)(1).) The trial court granted the motion, finding that the cross-complaint arose from protected activity and the abuse of process claim was barred by the litigation privilege codified at Civil Code section 47, subdivision (b).
On appeal, Katherine argues that the trial court erred because the gravamen of her abuse of process claim is non-communicative activity, and therefore the litigation privilege does not apply. For the reasons stated below, we disagree and therefore we will affirm the order granting respondents' special motion to strike the complaint.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
According to the factual allegations in the complaint filed on January 29, 2009, respondents Xuemei Chen (Chen) and Cheong Ang (Ang) met their neighbors Richard and Katherine Sutherland at a Fourth of July barbecue in 2008. During the barbecue, Richard told Chen that he, his wife Katherine, and his business partner Thomas E. Francis, M.D., were making a lot of money--at least a 2 percent to 4 percent profit per month on their principal--by investing in heavy machinery. Richard offered to explain the investment opportunity further to Chen and Ang if they were interested.
After Chen and Ang expressed an interest, Richard followed up by sending Chen and Ang emails explaining the heavy machinery investment program and by meeting with them in person. Richard informed them that the investment program, which involved the purchase and resale of heavy equipment, was risk free and Richard and his wife had personally invested $500,000. Sometime later, Richard told Chen and Ang that there was an opportunity for them to invest $174,000 and receive a return of 4.25 percent in four weeks by submitting the funds to Dr. Francis. Richard also told them that Dr. Francis worked closely with Windell Spell, the Georgia broker-dealer for the heavy equipment sales.
Chen shared Richard's information about the investment opportunity with a friend, Richard Conroy. Thereafter, in reliance on Richard's representations, Chen and Ang made their first investment by wiring $87,000 to Dr. Francis in July 2008, as did Conroy. A few days later, Richard sent Chen and Ang an email advising them of another investment opportunity that would return a 4.5 percent interest in five weeks. Again relying on Richard's representations, Chen and Ang agreed to make a second investment in the heavy machinery investment program and wired $100,000 to Dr. Francis.
Chen and Ang made a third investment in August 2008 after Richard offered them the opportunity to receive a 10 percent return in four to six weeks on a fraction of a $900,000 investment in which another investor had already invested $500,000. Based on Richard's representations, Chen and Ang wired $200,000 to Dr. Francis. In September 2008, Dr. Francis paid a return of $3,690 to Chen and Ang and a return of $3,690 to Conroy on their first investments. Chen and Ang did not receive any further returns on their investments and subsequent events revealed that heavy machinery investment program was a Ponzi scheme*fn4 and the Georgia broker-dealer was wanted by the FBI.
Based on these allegations, Chen, Ang, and Conroy claim that Richard, Katherine, Dr. Francis, and other defendants are liable for the return their investment funds and other damages under several contract and tort theories of liability.
B. Attachment Proceedings
The same day that they filed their complaint, January 29, 2009, respondents Chen, Ang and Conroy filed an ex parte application for a right to attach order, an order for issuance of a writ of attachment, and a temporary protective order. In their memorandum of points and authorities and the declarations filed in support of the application, respondents asserted that attachment of the Sutherlands' home and bank accounts was necessary to prevent the Sutherlands from transferring or encumbering their real property, emptying their bank accounts, and moving their assets out of the country, in light of their expressed intention of moving to Panama. Respondents also asserted that their claims had probable validity because the Sutherlands had misrepresented themselves as successful investors in the heavy machinery investment program in order to convince respondents to invest in a fraudulent Ponzi scheme.
The trial court issued a temporary protective order on January 29, 2009, that temporarily prohibited the Sutherlands from transferring, either directly or indirectly, their interests in their bank accounts and real property pending a hearing on respondents' application for a writ of attachment.
Richard filed an opposition to the application for a writ of attachment in which he argued that the application should be denied and the temporary protective order dissolved because respondents had not established the probable validity of their claims. In his supporting declaration, Richard stated that he and Katherine had no plans to move to Panama, they were also victims of the Ponzi scheme, and prior to respondents' investments in the scheme he had no knowledge that it was fraudulent. Richard also stated that none of respondents' investment funds had been placed in an account over which he had control. Further, Richard submitted the declaration of a real estate appraiser who gave his opinion that the Sutherlands' home had a value of between $2.6 million and $4 million. The record on appeal does not indicate whether Katherine filed opposition to the application for a writ of attachment.
After a hearing, the trial court issued its March 10, 2009 order denying respondents' application for a right to attach order and an order for issuance of a writ of attachment and dissolved the temporary protective order. The court stated that respondents were not entitled to a writ of attachment because the gravamen of their complaint was fraud.
C. The Cross-Complaint
On June 22, 2009, Katherine filed an answer to the complaint and a cross-complaint alleging that the temporary protective order obtained by respondents constituted abuse of process. Specifically, Katherine asserted that "[a]t the time they obtained the temporary protective order, [respondents] were not entitled to attach the assets of cross-complainant and did so only as a means to attempt to force her into capitulating on their claims. In addition, even had [respondents] been entitled to attach [her assets], they attached assets the value of which exceeded the value of their claims significantly and their attachment was wrongful for that reason as well." Katherine further asserted that the temporary protective order had harmed her by preventing her from transferring any funds from her bank accounts and/or transferring her interest in other property for 40 days.
D. The Special Motion to Strike the Cross-Complaint
Respondents filed a special motion to strike Katherine's cross-complaint pursuant to the anti-SLAPP statute, section 425.16, on August 21, 2009. They argued that abuse of process, the sole cause of action in the cross-complaint, was subject to the anti-SLAPP statute unless Katherine met her burden to show a probability of prevailing on the claim, which she could not do because the claim was barred by the litigation privilege codified at Civil Code section 47, subdivision (b) (hereafter, section 47(b).)
In her opposition to the special motion to strike the cross-complaint, Katherine conceded that her cross-complaint was subject to the anti-SLAPP statute. However, she argued that the motion should nevertheless be denied because she had shown a probability of prevailing on her abuse of process claim. According to Katherine, she could make a prima facie showing of abuse of process based on the attachment proceedings, since respondents could not meet the statutory requirements for an attachment and the temporary protective order had attached assets that significantly exceeded the value of their claims. Further, Katherine argued that respondents' ulterior motive of forcing her to capitulate by freezing her assets could be inferred from their willful abuse of process. She rejected respondents' contention that the abuse of process claim was barred by the section 47(b) litigation privilege, arguing that the privilege did not apply because the gravamen of her cross-complaint was the non-communicative activity of "the act of attachment."
E. The Trial Court's Order
In its order of September 22, 2009,*fn5 the trial court granted respondents' special motion to strike the cross-complaint pursuant to section 425.16. The court reasoned that "[t]he cross-complaint for abuse of process arises from protected activity. [Citation.] There is no reasonable probability that [Katherine] will prevail on her cross-complaint because the conduct upon which the action is predicated was privileged under [section 47(b)]. [Citations.]"
Katherine filed a timely notice of appeal from the September 22, 2009 order on November 12, 2009.
On appeal, Katherine contends that the trial court erred in granting the anti-SLAPP motion to strike her cross-complaint because she showed a probability of prevailing on her abuse of process claim, which is not barred by the section 47(b) litigation privilege since the gravamen of her claim is non-communicative activity. We will begin our analysis with an overview of the anti-SLAPP statute, followed by a discussion of the applicable standard of review.
A. Section 425.16
The Legislature enacted section 425.16 in 1992 in response to a "disturbing increase" in lawsuits brought for the strategic purpose of chilling a defendant's rights of petition and free speech. (§ 425.16, subd. (a).)*fn6 SLAPPs (strategic lawsuits against public participation) are unsubstantiated lawsuits based on claims arising from defendant's constitutionally protected speech or petitioning activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier.) Section 425.16, known as "[t]he anti-SLAPP statute, . . . treats complaints identically with cross-complaints (§ 425.16, subd. (h)." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77.)
Section 425.16 applies to any 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 Constitution or the California Constitution in connection with a public issue . . . ." (§ 425.16, subds. (b)(1), (e)(4).) The stated purpose of section 425.16 is to encourage protected speech by permitting a court to promptly dismiss unmeritorious actions or claims that are brought "primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a); Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).)
Under section 425.16, the trial court evaluates the merits of a possible SLAPP by "using a summary-judgment-like procedure at an early stage of the litigation." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The procedures authorized in the statute allow a defendant to stay discovery before litigation costs mount, obtain early dismissal of the lawsuit, and recover attorney's fees. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.)
A defendant seeking the protection of the anti-SLAPP statute has the burden of making the initial showing that the lawsuit arises from conduct "in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue[*fn7 ] . . . ." (§ 425.16, subds. (b)(1), (e)(4); Navellier, supra, 29 Cal.4th at p. 88.) Once the defendant has shown that the plaintiff's claim arises from one of the section 425.16, subdivision (e) categories of protected activity, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.)
Thus, " '[s]section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. 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 that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even minimal merit--is a SLAPP, subject to being stricken under the statute.' [Citation.]" (Soukup, supra, 39 Cal.4th at pp. 278-279.)
B. The Standard of Review
"Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation]" (Soukup, supra, 39 Cal.4th at p. 269, fn.3.)
Applying this standard of review, we will independently determine from our review of the record whether Sutherland's cross-complaint is a SLAPP under the two-prong test set forth in Soukup, supra, 39 Cal.4th at pages 278-279.
C. The First Prong of the Anti-SLAPP Statute
We determine that Katherine properly concedes that respondents' special motion to strike her cross-complaint satisfied the first prong of the anti-SLAPP statute because it arises from activity protected under section 425.16, subdivision (e).
One of the categories of activity protected under the anti-SLAPP statute is "any written or oral statement or writing made before a . . . judicial proceeding . . . ." (§ 425.16, subd. (e)(1).) "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. [Citations.] It has been 'interpreted broadly to encompass the entire range of "procedures" incident to litigation.' [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056-1057 (Rusheen).) Thus, "[t]he gravamen of the claim is misconduct in the underlying litigation." (Booker v. Rountree (2007) 155 Cal.App.4th 1366, 1370.) An abuse of process claim arising from allegations of misconduct in the underlying litigation therefore falls within the scope of the anti-SLAPP statute and is subject to a special motion to strike. (Ibid.)
Since Katherine's cross-complaint states a cause of action for abuse of process arising from the allegedly wrongful temporary protective order that respondents obtained in the underlying litigation, it is subject to a special motion to strike pursuant to section 425.16, subdivision (e)(1).
D. The Second Prong of the Anti-SLAPP Statute
As respondents' motion satisfied the first prong of the anti-SLAPP statute, the burden shifted to Katherine to demonstrate the probability of prevailing on her abuse of process claim and thereby establish that respondents cannot satisfy the second prong of the anti-SLAPP statute. (Soukup, supra, 39 Cal.4th at pp. 278-279.)
Probability of Prevailing
The California Supreme Court has described the plaintiff's burden as follows: "To establish a probability of prevailing, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.]" (Soukup, supra, 39 Cal.4th at p. 291.) Thus, respondents' anti-SLAPP motion must be granted unless Katherine demonstrated a probability of prevailing on her abuse of process claim. (Ibid.)
"To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. [Citation.]" (Rusheen, supra, 37 Cal.4th at p. 1057.)
Katherine argues that she has made a sufficient showing because respondents initiated the attachment proceedings below with the ulterior motive of maximizing her "humiliation, hardship and distress" by freezing her bank account so she could not pay her bills. However, she does not provide any evidence to support the ulterior motive element of the cause of action for abuse of process. Instead, Katherine urges an inference of ulterior motive from respondents' attachment application, which she asserts did not meet statutory requirements, as well as the temporary protective order's excessive attachment of assets (bank accounts and home) that she believes were valued in an amount more than four times the value of respondents' claimed loss of $474,000.
The Section 47(b) Litigation Privilege
Respondents' chief argument in response is that Katherine's abuse of process claim is barred by the section 47(b) litigation privilege, and for that reason she cannot meet her burden to establish a probability of prevailing on her cross-complaint. They assert that the California Supreme Court in Rusheen, supra, 37 Cal.4th 1048 ruled that a claim of wrongful attachment is barred by the litigation privilege. Alternatively, respondents argue that Katherine has failed to produce evidence to substantiate her claim for abuse of process.
We will begin our evaluation of the parties' contentions by addressing the potentially dispositive issue of whether Katherine has no probability of prevailing on her abuse of process claim because it is barred by the affirmative defense of the section 47(b) litigation privilege. Our evaluation is guided by the rules governing the application of the litigation privilege to an abuse of process claim that were set forth in Rusheen, supra, 37 Cal.4th 1048.
In Rusheen, the California Supreme Court stated that section 47(b) codifies the litigation privilege and provides in part that " '[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . . ' " (Rusheen, supra, 37 Cal.4th at p. 1057.) " 'Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] . . . The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]' [Citation.]" (Ibid.)
"Thus, 'communications with "some relation" to judicial proceedings' are 'absolutely immune from the tort liability' by the litigation privilege. [Citation.]" (Rusheen, supra, 37 Cal.4th at p. 1057.) Only communicative acts, such as the pleadings and process in a case, are protected by the litigation privilege. And "if the gravamen of the action is communicative, the litigation extends to non-communicative acts that are necessarily related to the communicative conduct . . . . [Citations.]" (Id. at p. 1065.) Only where "an independent, non-communicative, wrongful act was the gravamen of the action" is the litigation privilege inapplicable. (Id. at p. 1065.)
Like the present case, Rusheen involved an anti-SLAPP motion to strike a cross-complaint. The issue in Rusheen was whether the abuse of process claim stated in the cross-complaint was barred by the section 47(b) litigation privilege since the claim arose from "actions taken to collect a judgment, such as obtaining a writ of execution and levying on the judgment debtor's property." (Rusheen, supra, 37 Cal.4th at p. 1055.) The court determined that the claim for abuse of process was based upon "the communicative act of filing allegedly false declarations of service to obtain a default judgment" and therefore the postjudgment efforts to enforce the judgment--by applying for a writ of execution and levying on property--were protected by the litigation privilege. (Id. at p. 1052.) Accordingly, the court ruled that the trial court had properly granted the anti-SLAPP motion to strike the cross-complaint because there was no reasonable probability of prevailing on the abuse of process claim. (Id. at p. 1065.)
While the Rusheen court recognized that expanding the litigation privilege to the tort of abuse of process "necessarily narrows the scope of the tort," the court determined that the expansion of the privilege was consistent with the public policy of encouraging "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." (Rusheen, supra, 37 Cal.4th at p. 1063.) "Thus, the 'salutatory policy reasons for an absolute [litigation] privilege supersede individual litigants' interests in recovering damages for injurious publications made during the course of judicial proceedings.' [Citation.]" (Id. at p. 1064; see also Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530 [litigation privilege applies broadly to protect the rights of litigants to communicate with the court].)
Additionally, the Rusheen court determined that the denial of an abuse of process claim was mitigated because the cross-complainant had "adequate alternative remedies," such as moving to recall and quash the writ of execution, posting an undertaking, or seeking a writ of supersedeas to stay enforcement efforts. (Rusheen, supra, 37 Cal.4th at p. 1064.) The court also noted that the process of enforcing money judgments was subject to judicial supervision. (Id. at p. 1065.)
In the present case, Katherine contends that the section 47(b) litigation privilege does not apply because she did not allege any communicative acts in her cross-complaint. She explains that the gravamen of her cross-complaint is the temporary protective order obtained by respondents, which was wrongful because it resulted in an excessive attachment. According to Katherine, "[t]he act of attachment is never communicative." She argues that her position is supported by the California Supreme Court's decision in White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336 (White Lighting) that a claim for abuse of process may be based on an excessive attachment.
We are not convinced by Katherine's argument, for several reasons. First, the decision in White Lighting does not support the proposition that the section 47(b) litigation privilege is inapplicable to a claim for abuse of process based upon excessive attachment. In White Lighting, the Supreme Court ruled in 1968 that "a claim based on excessive attachment constitutes a cause of action for abuse of process rather than for malicious prosecution and such a claim may be brought in the action in which the attachment issued." (White Lighting, supra, 68 Cal.2d at p. 341.) For that reason, the Supreme Court determined that the trial court had erred in sustaining a general demurrer to the cause of action for abuse of process in the cross-complaint. (Id. at p. 351.) The White Lighting decision did not address the issue of whether the section 47(b) litigation privilege would bar the abuse of process claim. As respondents point out, " '[i]t is a well-established rule that an opinion is only authority for those issues actually considered or decided. [Citations.]' " (Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1076.)
Second, Katherine's argument that the litigation privilege does not apply where the abuse of process claim is based upon wrongful levying was rejected in Brown v. Kennard (2001) 94 Cal.App.4th 40 (Brown). In Brown, the plaintiff alleged that the defendant "abused process by causing a wrongful writ of execution to be levied upon his 'categorically exempt funds,' i.e., Social Security retirement benefits and personal retirement benefits." (Id. at p. 43, fn. omitted.) Defendant demurred on the ground that the abuse of process claim was barred by the section 47(b) litigation privilege. Like Katherine, the plaintiff argued that the act of levying was a non-communicative act and therefore not subject to the privilege. (Id. at p. 49.) The appellate court disagreed, stating that the plaintiff was "claiming a 'distinction without a difference.' The act of applying for a writ is privileged. The privilege extends to torts arising from the privileged statement or publication. As such, not only does the privilege protect the application for a writ of execution, it also extends to the act of carrying out the directive of the writ. To hold otherwise would effectively strip the litigation privilege of its purpose." (Id. at p. 50, fns. omitted.) The court therefore determined that the cause of action for abuse of process was barred by the litigation privilege. (Id. at p. 51.)
The Rusheen court agreed with the decision in Brown and other prior decisions that had "applied the litigation privilege to limit the availability of the tort of abuse of process in the judgment enforcement context. [Citations.]" (Rusheen, supra, 37 Cal.4th at p. 1065.) The Rusheen court disapproved the contrary decision in Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, which had ruled that "it does not follow that, merely because the application for the writ--essentially the statement by the judgment creditor to the clerk that the creditor has a judgment and requests the issuance of a writ--is a privileged communication, subsequent acts in levying on property are likewise privileged." (Id. at pp. 1027-1028.)
Thus, we follow the instruction of the California Supreme Court in Rusheen that the section 47(b) litigation privilege bars a claim for abuse of process "unless it is demonstrated that an independent, non-communicative, wrongful act was the gravamen of the action . . . ." (Rusheen, supra, 37 Cal.4th at p. 1065.) We find that Katherine has not made that showing.
To begin with, respondents' act of applying for the temporary protective order was privileged because it was a communication " 'with "some relation" to judicial proceedings' "--the underlying action--and therefore " 'absolutely immune from tort liability' by the litigation privilege. [Citation.]" (Rusheen, supra, 37 Cal.4th at p. 1057.) Because the act of applying for the temporary protective order was privileged, the privilege extended to the act of implementing the temporary protective order by temporarily attaching Katherine's assets. (Brown, supra, 94 Cal.App.4th at p. 50.) Thus, Katherine has not demonstrated that the gravamen of her cross-complaint is a "an independent, non-communicative, wrongful act." (Rusheen, supra, 37 Cal.4th at p. 1065.) We therefore agree with the trial court that the cause of action for abuse of process arising from the temporary protective order is barred by the litigation privilege and Katherine cannot meet her burden to demonstrate a probability of prevailing on that claim. (Soukup, supra, 39 Cal.4th at p. 291.)
For these reasons, we determine that the cause of action for abuse of process, which is the sole cause of action in the cross-complaint, is a SLAPP because it arises from an activity protected under the anti-SLAPP statute and lacks "even minimal merit." (Soukup, supra, 39 Cal.4th at pp. 278-279.) We therefore conclude that the trial court properly granted respondents' anti-SLAPP motion to strike the cross-complaint.
Having reached that conclusion, we need not address Katherine's contention that she is entitled to an award of attorney fees under section 425.16, subdivision (c) because respondents' anti-SLAPP motion is frivolous.
The September 22, 2009 order granting the special motion to strike the cross-complaint under Code of Civil Procedure section 425.16 is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: MCADAMS, J. duffy, J.