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O'Neil-Rosales v. Citibank (South Dakota) N.A.

Superior Court of California, Appellate Division, Los Angeles

March 7, 2017

PEGGY O'NEIL-ROSALES, Plaintiff and Appellant,
CITIBANK (SOUTH DAKOTA) N.A. et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County, Central Trial Court No. 14K10724 David Sotelo, Judge. Affirmed.

          Law Offices of Todd M. Friedman, Todd M. Friedman and Meghan E. George for Plaintiff and Appellant Peggy O'Neil-Rosales.

          Hunt & Henriques and Kurtiss A. Jacobs for Defendants and Respondents Citibank (South Dakota) N.A. and Hunt & Henriques.


          C. Lee, J. [*]

         Plaintiff 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).[1] We affirm the judgment.


         On 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.).

         Plaintiff 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 fees.

         Defendants 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.

         The 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.

         Judgment, 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.


         The 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).)

         Application 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).[2] “‘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 ...

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