Superior Court of California, Appellate Division, Los Angeles
from a judgment of the Superior Court of Los Angeles County,
Central Trial Court No. 14K10724 David Sotelo, Judge.
Offices of Todd M. Friedman, Todd M. Friedman and Meghan E.
George for Plaintiff and Appellant Peggy O'Neil-Rosales.
& Henriques and Kurtiss A. Jacobs for Defendants and
Respondents Citibank (South Dakota) N.A. and Hunt &
Lee, J. [*]
and appellant Peggy O'Neil-Rosales appeals the judgment
entered against her and in favor of defendants and
respondents Citibank (South Dakota) N.A. and Hunt &
Henriques. Plaintiff contends the trial court erroneously
granted defendants' special motions to strike the
complaint under Code of Civil Procedure section 425.16 (the
“anti-SLAPP” statute). We affirm the judgment.
August 13, 2014, plaintiff filed a complaint against
defendants, asserting causes of action for violation of the
Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §
1692 et seq.) and of the Rosenthal Fair Debt Collection
Practices Act (RFDCPA) (Civ. Code, § 1788 et seq.).
alleged that, in 2008, Citibank obtained a judgment and lien
against plaintiff's domestic partner, Eduard Rosales
(Rosales); the lien was applied to real property on Lewis
Avenue in Long Beach that, two years earlier, was put in
plaintiff's name only. Plaintiff learned of the lien and
judgment in June 2014 when she sought to refinance her home
loan, and was advised by her mortgage company that the
mortgage could not be refinanced until the judgment and lien
were removed or proved invalid. Plaintiff further alleged
that, in the year preceding the filing of her complaint,
Citibank retained Hunt & Henriques to “contact
[p]laintiff in an attempt to collect an alleged outstanding
debt.” Plaintiff claimed defendants' conduct
violated the FDCPA and RFDCPA in “multiple ways”
and sought a declaratory judgment to that effect, actual
damages, statutory damages, costs and reasonable attorney
both filed special motions to strike plaintiff's
complaint under section 425.16, and plaintiff filed written
oppositions in response. The motions were argued and taken
under submission on May 26, 2015, and the court issued its
ruling granting the motions on May 28, 2015. The court laid
out the following facts and observations: (1) defendants'
recording of a judgment lien was “the single act”
alleged by plaintiff to be a violation of the FDCPA and the
RFDCPA; (2) Citibank retained Hunt & Henriques, a law
firm, to sue Rosales on an unpaid Citibank account he owed;
(3) Citibank obtained a judgment against Rosales for $15,
616.76; (4) counsel for Citibank then obtained an abstract of
judgment from the court and, on September 10, 2010, recorded
a lien on real property in Los Angeles County which they
believed Rosales had an interest in; (5) the lien identified
only Rosales as the judgment debtor, gave the Lewis Avenue
address as his “last known address, ” and
provided the last four digits of his Social Security number;
and (6) no other collection action was taken against the
Lewis Avenue property, Rosales or plaintiff.
court first determined that defendants met their burden by
providing evidence that the filing of the lien was connected
with litigation against Rosales and that, as such, it was
protected by the litigation privilege. (Civ. Code, § 47,
subd. (b).) The court then found plaintiff failed to
demonstrate a reasonable probability of prevailing on her
claims under the FDCPA and the RFDCPA.
including attorney fees in the amount of $5, 805, was ordered
in favor of defendants on July 15, 2015, and the clerk's
notice of entry of judgment was mailed the same day.
Plaintiff timely appealed.
anti-SLAPP statute was enacted “to provide a procedural
remedy to dispose of lawsuits that are brought to chill the
valid exercise of constitutional rights. [Citation.]”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055-1056.) Under the statute, “[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 Constitution or the 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, subd. (b)(1).)
of the anti-SLAPP statute involves a two-step process. First,
the moving party must make a threshold showing that the
challenged cause of action arose from protected speech or
petitioning activity. (Rusheen v. Cohen,
supra, 37 Cal.4th at p. 1056.) To do so, the
activity must fall within the categories of section 425.16,
subdivision (e). “‘A cause of action
“arising from” [a] defendant's litigation
activity may appropriately be the subject of a section 425.16
motion to strike.' [Citations.] ‘Any act'
includes communicative conduct such as the filing, funding,
and prosecution of a civil action. [Citation.]”
(Rusheen v. Cohen, supra, 37 Cal.4th at p.
1056.) “‘A claim does not arise from
constitutionally protected activity simply because it is
triggered by such activity or is filed after it occurs.
[Citation.] Rather, the focus is on the substance of the
lawsuit. ‘[T]he critical point is whether the
plaintiff's cause of action itself was based on
an act in furtherance of the defendant's right of
petition or free speech. [Citations.]' [Citation.]”
(World Financial Group, Inc. v. HBW Insurance &
Financial Services, Inc. (2009) 172 ...