DeLong v. Engel & Engel CA2/4 ( 2021 )

Filed 10/27/21 DeLong v. Engel & Engel CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOHN and JUDITH DELONG, B307895
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 19STCV35635)
v.
ENGEL & ENGEL, LLP, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles
County, Dennis J. Landin, Judge. Affirmed.
Randall S. Waier for Plaintiffs and Appellants.
Biggins Law Group and Chad Biggins for Defendants and
Respondents Engel & Engel, LLP and Douglas C. Biggins.
Tisdale & Nicholson and Michael D. Stein for Defendant and
Respondent Engel & Engel, LLP.
Wilcox, Dunakin, Christopolous and Chad C. Wilcox for Defendant
and Respondent Douglas C. Biggins.
This action arose out of defendant attorney Douglas C. Biggins’s
efforts at successfully enforcing a judgment he had obtained in an
underlying case in favor of his client, defendant Engel & Engel, LLP
(Engel), and against plaintiffs John and Judith DeLong. To satisfy the
judgment, Biggins received a pay-off out of escrow funds held by First
American Title Company (First American),1 an escrow company
responsible for overseeing the sale of the DeLongs’ property. Despite
the disbursement of escrow proceeds to Biggins and the DeLongs, the
DeLongs filed this action for declaratory relief seeking declarations that
Biggins’s conduct in enforcing the judgment were “legally and
procedurally” unenforceable. The complaint challenged Biggins’s
conduct of amending the abstract of judgment to include the DeLongs as
co-trustees of their inter vivos trust (which held legal title to the
property out of which the escrow proceeds were distributed); filing writs
of execution and a notice of an attorney lien; and submitting a letter in
response to First American’s request to pay-off the judgment lien.
Biggins and Engel filed motions to strike the complaint under
Code of Civil Procedure section 425.16 (the anti-SLAPP statute), and
argued inter alia that the challenged conduct was protected under the
anti-SLAPP statute and barred under the litigation privilege (Civ.
Code, § 47, subd. (b).)2 The trial court agreed, and struck the complaint
as to Biggins and Engel.
1 First American is not a party to this appeal.
2 Unspecified statutory references are to the Code of Civil Procedure.
2
The DeLongs appeal from the court’s order granting both motions
to strike, and challenge each basis on which the court relied when
making its ruling. We affirm the order.
BACKGROUND3
A. The Underlying Judgment
Representing Engel in an action entitled Engel & Engel LLP v.
John DeLong and Judith DeLong (case No. BS152124), Biggins
obtained a judgment confirming an arbitration award of $75,949.02 in
favor of Engel and against the DeLongs jointly and severally for prior
unpaid accounting services. On November 8, 2016, the court issued an
abstract of judgment, and Biggins filed a writ of execution without
requesting a notice of sale. Biggins recorded the abstract of judgment
in Los Angeles County on December 6, 2016.
On May 30, 2017, Biggins filed an affidavit of identity requesting
the inclusion of John and Judith DeLong as judgment debtors in their
capacity as co-trustees of the DeLong Family Trust. Biggins attached
three quitclaim deeds in which the DeLongs transferred ownership in
tracts of land in Los Angeles County as husband and wife to themselves
as co-trustees. The same day, Biggins filed an amended abstract of
judgment naming the DeLongs as judgment debtors individually and as
3 The record on appeal contains the complaint, pleadings, and evidence
in support of and in opposition to the motions to strike. The DeLongs and
Engel filed various objections to the evidence. The court’s rulings are not
challenged on appeal, and accordingly we summarize the evidence in
accordance with those rulings.
3
co-trustees of the DeLong Family Trust. The court signed the affidavit
of identity and issued an order naming the DeLongs judgment debtors
individually and in their capacity as co-trustees of the DeLong Family
Trust.
On August 18, 2017, the court issued an amended abstract of
judgment. Four days later, Biggins recorded the amended abstract of
judgment in Los Angeles County.
Biggins filed and served on the DeLongs a notice of attorney lien
for his fees and costs on January 31, 2019. The notice of attorney lien
was not recorded.
B. Escrow and Pay-Off to Satisfy the Judgment
In 2019, the DeLongs initiated an escrow at First American for
the sale of apartments to which they held title as co-trustees of the
DeLong Family Trust. At some point, First American became aware of
the judgment liens in the underlying case. In response to First
American’s request to pay-off the judgment liens, on April 9, 2019,
Biggins sent First American a written demand for payment in the
amount of $149,904.69 with daily interest.
On April 23, 2019, the DeLongs’ counsel of record, Randall Waier,
informed First American that the DeLongs objected to Biggins’s
demand for a pay-off, as the underlying judgment did not include them
in their capacity as co-trustees. In correspondence with First American
in May 2019, Waier requested 90 days to “‘clear title’” by petitioning the
court “to remove the abstract . . . or otherwise challenge the propriety of
the abstract.” Waier would notify First American of the court date, “at
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which time First American may want to interplead the funds into
Court.”
Escrow closed in July 2019. On October 1, 2019, Waier sent Engel
a written demand for the release of the judgment lien. Despite
acknowledging Engel’s ability as judgment creditor to enforce the
judgment against trust assets held by a trust settlor-debtor,4 Waier
noted “there is one procedural hurdle. The judgment must denominate
the trustee, in that capacity, as an additional judgment debtor.” The
same day Waier sent Engel a demand letter, First American paid
$162,375.83 out of escrow to satisfy Biggins’s demand for pay-off.
On October 3, 2019, First American released to the DeLongs the
remaining funds held in escrow. In doing so, First American noted that
it had received “[n]o communication . . . from you nor did we receive a
lowered demand within the 90 days therefore the original demand was
paid to the judgment holder in the amount of $162,375.83.”
Engel filed an acknowledgement of satisfaction of the underlying
judgment on October 4 and 15, 2019.
C. The Instant Action
On October 4, 2019, the DeLongs, individually and as co-trustees
of the DeLong Family Trust, filed a complaint for declaratory relief
against Engel, Biggins, and First American, and alleged as follows:
4 Section 18200 of the Probate Code provides: “If the settlor retains the
power to revoke the trust in whole or in part, the trust property is subject to
the claims of creditors of the settlor to the extent of the power of revocation
during the lifetime of the settlor.”
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“(1) Biggins’ lien notice . . . is unenforceable until its validity and
the amount of the Judgment to be paid to Biggins has been judicially or
otherwise resolved between Biggins and Engel;
“(2) Engel’s original writ of execution . . . and any others which
have been subsequently issued, are legally and procedurally
unenforceable as to assets and funds owned by the DeLong Family
Trust; and,
“(3) First American is procedurally and legally precluded to pay
any of the demanded proceeds to Engel and/or Biggins from those
directed to be paid to the DeLong Family Trust . . . and, now is legally
required to interplead these funds in this litigation; and,
“(4) Engel’s recorded abstracts of judgment are legally and
procedurally unenforceable as to the assets owned by the DeLong
Family Trust.”
The DeLongs sought judicial declarations as to each of these
contentions, an injunction requiring First American to interplead the
escrow funds into court, and for costs of suit.
D. The Anti-SLAPP Proceedings
Biggins and Engel filed separate motions to strike the complaint
under section 425.16, and introduced various exhibits in support,
including the abstracts of judgment, notice of attorney lien, and
communications between Biggins and First American.
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1. The Special Motions to Strike
In his motion to strike, Biggins argued that his challenged conduct
was protected activity aimed at enforcing a judgment. (See § 425.16,
subds. (e)(1), (e)(2).) He also argued the DeLongs could not establish a
probability of prevailing on the merits because the litigation privilege
(Civ. Code, § 47) barred each claim; assets in the trust were subject to
enforcement even if the judgment did not name the DeLongs as
judgment debtors in their capacity as co-trustees (Prob. Code, § 18200);
and First American had already satisfied the judgment. Biggins also
asserted the DeLongs had no standing to contest the attorney lien.
Engel repeated the same arguments in its own motion to strike,
and argued that the DeLongs’ claims were meritless because the court
had already amended the judgment to include them as judgment
debtors in their capacity as co-trustees.
2. The DeLongs’ Oppositions
Relying on Drell v. Cohen (2014) 232 Cal.App.4th 24 (Drell), the
DeLongs opposed both motions to strike, and argued their complaint did
not challenge the exercise of filing pleadings or recording abstracts of
judgment. Rather, they alleged the gravamen of the complaint
questioned “the validity or invalidity” of those filed documents and
Biggins’s demand letter. Moreover, the DeLongs alleged that the
gravamen of their complaint challenged the accuracy or amount of
Biggins’s demand for a pay-off. The DeLongs argued their complaint
possessed the requisite merit to survive a motion to strike because the
litigation privilege did not apply to declaratory relief actions, and the
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order Biggins obtained amending the judgment was invalid. In their
view, the order was made invalid by Biggins’s failure to concurrently
file an application for writ of execution with his affidavit of identity “as
mandated by section 680.135.”5
The DeLongs introduced various documents and declarations in
support of their oppositions. In his declaration, John DeLong alleged
that their complaint questioned “whether the amount disbursed” to
Biggins was accurately calculated.
3. The Replies
In their replies, Biggins and Engel argued inter alia that the pay-
off by First American and the filing of the acknowledgement of
satisfaction of judgment rendered the DeLongs’ complaint moot. They
also argued that section 680.135, as relied on by the DeLongs, actually
confirmed the validity of the court’s order amending the judgment, as
the filing of Biggins’s affidavit of identity was accompanied by a filed
abstract of judgment.
5 Section 680.135 codifies what must be provided in an affidavit of
identity. The statute also defines “‘Affidavit of Identity’” as “an affidavit or
declaration executed by a judgment creditor, under penalty of perjury, that is
filed with the clerk of the court in which the judgment is entered at the time
the judgment creditor files for a writ of execution or an abstract of judgment.”
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4. The Trial Court’s Ruling
Following a hearing in which the court took the matter under
submission,6 the court granted both motions and struck the entire
complaint as to Biggins and Engel. The court found that the entire
action against Biggins and Engel arose out of their efforts at enforcing a
judgment, all of which constituted protected conduct. The DeLongs’
reliance on Drell, supra, 232 Cal.App.4th 24, was misplaced, as that
particular action did not seek to prevent the court filings and litigation-
related communications “by challenging its procedural defects.”
The court also found the DeLongs had failed to establish a
probability of prevailing on the merits, because the litigation privilege
barred their claims for relief, and their action was “untimely,” as “the
satisfaction of judgment already occur[red].”
DISCUSSION
A. Governing Principles and Standard of Review
Section 425.16 provides in relevant part: “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).) An
6 A reporter’s transcript from the hearing on both motions to strike was
not made part of the record on appeal.
9
“‘act in furtherance of a person’s right of petition or free speech’”
includes “(1) any written or oral statement or writing made before a . . .
judicial proceeding, or any other official proceeding authorized by law,
[or] (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.” (§ 425.16, subd. (e).)
A trial court presented with a motion to strike engages in a two-
step process. “First, the court decides whether the defendant has made
a threshold showing that the challenged cause of action is one ‘arising
from’ protected activity. (§ 425.16, subd. (b)(1).) If the court finds such
a showing has been made, it then must consider whether the plaintiff
has demonstrated a probability of prevailing on the claim.” (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) To satisfy this burden, the
plaintiff must demonstrate that each of the claims alleged is both
legally sufficient and supported by proof upon competent evidence.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Zamos v.
Stroud (2004) 32 Cal.4th 958, 965.) If the plaintiff does not meet his or
her burden, the court shall strike the claim. (Briganti v. Chow (2019)
42 Cal.App.5th 504, 508.)
We review the trial court’s determination on a motion to strike de
novo, engaging the same two-step process as the trial court. (Paiva v.
Nichols (2008) 168 Cal.App.4th 1007, 1016–1017.)
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B. Analysis
1. Step One: Arising From Protected Activity
To determine whether the declaratory relief action “aris[es] from”
protected activity, we review the allegations in the complaint to
determine whether the actual controversy upon which the DeLongs’
claims for declaratory relief “‘was based on an act in furtherance of the
defendant[s’] right of petition or free speech.’ [Citation.]” (Gotterba v.
Travolta (2014) 228 Cal.App.4th 35, 42 (Gotterba); Guessous v. Chrome
Hearts, LLC (2009) 179 Cal.App.4th 1177, 1186.)
The DeLongs’ complaint sought declarations that the notice of
attorney lien, writ(s) of execution, demand for pay-off, and recorded
abstracts of judgment are each “legally and procedurally” defective or
unenforceable. These writings are unquestionably protected
communications under subdivisions (e)(1) and (e)(2) of section 425.16.
(See Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 831 (Olszewski)
[lien filed to achieve object of litigation]; O’Neil-Rosales v. Citibank
(South Dakota) N.A. (2017) 11 Cal.App.5th Supp. 1, 6 (O’Neil-Rosales)
[abstract of judgment]; O&C Creditors Group, LLC v. Stephens &
Stephens XII, LLC (2019) 42 Cal.App.5th 546, 567–574 (O&C Creditors)
[communications to settle litigation and disburse proceeds]; Thayer v.
Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 158 [attorney
representation made on behalf client].)
Despite their concession that the complaint challenges “the
procedural steps” Biggins used to obtain payment from escrow proceeds,
the DeLongs now contend their complaint “primarily seeks a
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declaration that the judgment was overpaid by First American
improvidently out of trust assets.” (Italics added.)
At no point in their complaint did the DeLongs challenge the
amount of payment First American made to Biggins. The only
allegation questioning the amount First American paid to satisfy the
judgment lien appears in John DeLong’s declaration in support of the
DeLongs’ opposition to the motions to strike. Such declaration may not
be used to amend the complaint. (See Simmons v. Allstate Ins. Co.
(2001) 92 Cal.App.4th 1068, 1073; South Sutter, LLC v. LJ Sutter
Partners, L.P. (2011) 193 Cal.App.4th 634, 666 [allowing a plaintiff to
amend their complaint would be “inconsistent with the purpose of the
SLAPP statute”].)7
As they did in the trial court, the DeLongs primarily rely on Drell
for the proposition that their complaint does not challenge litigation-
related communications, but rather simply refers to the
communications “as evidence” that Biggins was improperly paid out of
escrow proceeds. (See Drell, supra, 232 Cal.App.4th at p. 29 [“Where
the protected activity will only be used as evidence in the case, and no
claim is based on it, the protected activity is only incidental to the
claims” and is not protected under § 425.16].)
7 The only allegation in the complaint referring to an “amount” was
made with respect to Biggins’s notice of attorney lien. That very allegation
makes clear that the controversy had nothing to do with the DeLongs, but
existed “between Biggins and Engel.” The DeLongs do not challenge in this
appeal the amount owed Biggins for his services performed in the underlying
action.
12
We agree with the trial court that Drell is readily distinguishable.
In that case, the defendants (an attorney and his firm) asserted an
attorney lien after withdrawing as counsel in a personal injury action.
(232 Cal.App.4th at p. 26.) The defendants informed one of the insurers
in the personal injury case that any payment of funds was subject to a
lien for their fees based on a contingency agreement. (Id. at pp. 26–27.)
The plaintiff (new counsel of record) obtained a settlement in the
personal injury action, after which the insurer made a check payable to
both plaintiff and defendants. (Id. at p. 27.) The declaratory relief
action filed sought a determination of the attorneys’ respective rights to
their fees from the settlement. (Ibid.)
Unlike in Drell, where the plaintiff’s challenge was not based on
litigation-related communications (the challenge instead was based on
the attorneys’ competing agreements with the client), the DeLongs’
complaint here is based entirely on Biggins’s conduct of enforcing the
underlying judgment. In other words, if Biggins’s court filings and
demand letter were removed from the complaint, no dispute would exist
in this case. (Accord, O&C Creditors, supra, 42 Cal.App.5th at p. 571;
Gotterba, supra, 228 Cal.App.4th at p. 42; Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1062 (Rusheen).) We therefore proceed to the next step of
determining whether the DeLongs established a probability of
prevailing.
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2. Step Two: Probability of Prevailing on the Merits
The DeLongs contend they have established a probability of
prevailing, because the litigation privilege does not extend to Biggins’s
demand for pay-off, or his notice of attorney lien. They also argue
Biggins was not authorized by his client to demand a pay-off. Finally,
they assert that Biggins and Engel were legally required to be joined as
indispensable parties, as both had “alleged rights to the release of
escrow proceeds in satisfaction of the judgment.”
In order to establish a probability of prevailing on the claim, a
plaintiff responding to an anti-SLAPP motion must state and
substantiate a legally sufficient claim. (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th
464, 476.) To do so, the plaintiff must demonstrate that the challenged
cause of action was “‘“both legally sufficient and supported by a
sufficient prima facie showing of facts . . . .”’” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 89–90.)
To begin with, the DeLongs have furnished no legal argument
with respect to Biggins’s authority to demand a pay-off of the judgment
lien on behalf of his client. We deem that contention forfeited. (Lee v.
Kim (2019) 41 Cal.App.5th 705, 721.) Moreover, the DeLongs have
failed to demonstrate how the indispensability of Biggins and Engel as
parties substantiates a legally sufficient claim. The fact that either
defendant could be deemed indispensable (the trial court did not rule on
this issue) did not require the DeLongs to include them in their lawsuit.
(See American Indian Model Schools v. Oakland Unified School Dist.
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(2014) 227 Cal.App.4th 258, 296 [“‘“[a] court has the power to proceed
with a case even if indispensable parties are not joined”’”].)
Equally unavailing is the DeLongs’ contention that the litigation
privilege does not apply to Biggins’s letter to First American or his
notice of attorney lien.8 The litigation privilege protects any
communications made in a judicial proceeding or “in the initiation or
course of any other proceeding authorized by law,” and may prevent a
plaintiff’s ability to demonstrate a probability of prevailing on the
merits. (Civ. Code, § 47, subd. (b); see Flatley v. Mauro (2006) 39
Cal.4th 299, 323.) “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.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
“‘“Any doubt about whether the privilege applies is resolved in favor of
applying it.”’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss,
Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 116.)
The DeLongs argue that Biggins’s letter and notice of attorney
lien “did not further the underlying purposes of the litigation
privilege[s]” because they were not made to a tribunal prior to or during
a judicial proceeding. The DeLongs are mistaken.
8 The arguments in the DeLongs’ appellate briefs do not reference or
analyze the writs of execution or abstracts of judgment. We do not consider
whether these particular communications fall under the litigation privilege.
(Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12 [“issues and
arguments not addressed in the briefs on appeal are deemed forfeited”].)
15
The litigation privilege “‘applies to any publication required or
permitted by law in the course of a judicial proceeding to achieve the
objects of the litigation, even though the publication is made outside the
courtroom and no function of the court or its officers is involved.’”
(Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955; Rusheen,
supra, 37 Cal.4th at p. 1057 [litigation privilege is “not limited to
statements made during a trial” but may extend to “steps taken prior
thereto, or afterwards”].) Here, Biggins’s letter and notice of attorney
lien were made during pending litigation (the underlying action) and
were aimed at the realization of litigation objectives: the collection of a
judgment and payment for work performed. (See O’Keefe v. Kompa
(2000) 84 Cal.App.4th 130, 135; Olszweski, supra, 30 Cal.4th at p. 831;
see O’Neil-Rosales, supra, 11 Cal.App.5th Supp. at p. 6.) Thus, the
litigation privilege precluded any possibility of the DeLongs prevailing
on the merits of their claim.
Even assuming the litigation privilege does not apply, the
DeLongs have still failed to establish an actual controversy on which to
base a legally sufficient claim for declaratory relief. (See § 1060
[declaratory relief actions require an “actual controversy” that is
currently active between the parties].) At the time the DeLongs filed
their complaint, there was no actual controversy pending with respect
to the parties’ rights to receive escrow proceeds: Biggins and Engel had
already been paid an amount certain to satisfy the underlying
judgment. “‘Declaratory relief operates prospectively to declare future
rights, rather than to redress past wrongs. [Citation.]’ [Citations.] A
declaratory judgment ‘“serves to set controversies at rest before they
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lead to repudiation of obligations, invasion of rights or commission of
wrongs; in short, the remedy is to be used in the interests of preventive
justice, to declare rights rather than execute them.” [Citations.]’
[Citation.]” (County of San Diego v. State of California (2008) 164
Cal.App.4th 580, 607–608.)
In sum, the DeLongs’ declaratory relief action arose of out activity
protected by section 425.16. Because that activity is absolutely
privileged under Civil Code section 47, and because the complaint does
not state an actual controversy on which to obtain declaratory relief, the
court did not err in granting the motions to strike the entire complaint
as to Biggins and Engel.
DISPOSITION
The order is affirmed. Respondents shall recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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