217 Cal. Rptr. 3d 723
Cal. App. Dep’t Super. Ct.2017Background
- Plaintiff Peggy O’Neil-Rosales appeals a judgment in favor of Citibank (South Dakota) N.A. and Hunt & Henriques after anti-SLAPP motions were granted.
- Plaintiff alleged FDCPA and RFDCPA violations based on a 2008 abstract of judgment and lien recorded against Rosales’s property, which plaintiff claimed affected her refinance and property interests.
- Citibank obtained a judgment against Rosales and recorded a Los Angeles County lien in 2008, listing Rosales’s last known address and the last four digits of Rosales’s SSN; the lien purportedly did not name plaintiff as a judgment debtor.
- Defendants argued the actions in recording the abstract and pursuing litigation were protected by the litigation privilege and arose from protected petitioning activity.
- The trial court granted the anti-SLAPP motions, concluding plaintiff failed to show a probability of prevailing on her FDCPA/RFDCPA claims, and the judgment included attorney fees for defendants.
- On appeal, the court affirmed, holding the recording of the abstract and lien fell within protected activity, and plaintiff could not show injury from consumer-debt collection activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the recording of the abstract of judgment/lien arise from protected activity? | O’Neil-Rosales contends the lien recording was not protected by 425.16(e). | Citibank/Hunt & Henriques contend the acts fell within protected litigation activity. | Yes; the recording of the abstract/ lien is protected litigation activity. |
| Did plaintiff show a probability of prevailing on the FDCPA/RFDCPA claims? | Plaintiff asserted multiple statutory violations based on the lien against Rosales. | Defendants argued the claims failed as the lien related to Rosales’s litigation, not plaintiff’s debt, and no protected act caused a debt-collection violation. | No; plaintiff failed to show a probability of prevailing. |
| Does the litigation privilege apply to postjudgment collection actions like recording a lien? | The privilege should not shield non-communicative ministerial acts by recording a lien unrelated to plaintiff’s debt. | The act of obtaining and recording the abstract falls within the privilege and/or protected activity. | Yes; acts fall within the privilege/ protected activity, supporting anti-SLAPP dismissal. |
| Was the abstract of judgment created against Rosales capable of creating a lien on plaintiff’s Lewis Avenue property? | Abstract appeared to create a lien against plaintiff’s property. | Abstract applied to Rosales and did not create a lien on plaintiff’s property absent Rosales’s real property interest. | No; the abstract did not create a lien against plaintiff’s property. |
Key Cases Cited
- Rusheen v. Cohen, 37 Cal.4th 1048 (Cal. 2006) (two-step anti-SLAPP framework; litigation activity includes filing/prosecution of a civil action)
- World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., 172 Cal.App.4th 1561 (Cal. App. 4th Dist. 2009) (defines scope of protected activity and de novo review standard)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (establishes procedural framework for anti-SLAPP motions and prongs)
- Baharian-Mehr v. Smith, 189 Cal.App.4th 265 (Cal. App. 4th Dist. 2010) (initial prong burden and de novo review on anti-SLAPP motion)
- Kinney v. Vallentyne, 15 Cal.3d 475 (Cal. 1975) (treatise on liens and property interest in context of judgments)