Topolewski v. AECOM Energy & Construction CA2/4 ( 2023 )

Filed 5/2/23 Topolewski v. AECOM Energy & Construction 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GARY G. TOPOLEWSKI, B318107
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV30981)
AECOM ENERGY &
CONSTRUCTION, INC.
Defendant and
Respondent.
APPEAL from a Judgment of the Superior Court of
California. Terry A. Green, Judge. Affirmed.
Jeffer, Mangels, Butler & Mitchell, Stanley M. Gibson,
Susan Allison, and Dan P. Sedor for Plaintiff and Appellant.
Sklar Kirsh, Justin M. Goldstein, and Rachael W. Hiatt for
Defendant and Respondent.
INTRODUCTION
Gary G. Topolewski appeals an order granting defendant
AECOM Energy & Construction, Inc.’s special motion to strike
under Code of Civil Procedure section 425.16,1 commonly known
as an anti-SLAPP motion. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In July 2017, AECOM sued Topolewski, who owned a
clothing business known as Metal Jeans, Inc., for trademark
infringement under both state and federal law in the United
States District Court for the Central District of California
(federal action). AECOM alleged in the federal action that
Topolewski and others wrongfully used trademarks associated
with AECOM’s predecessor, Morrison Knudsen Corporation.
AECOM obtained summary judgment in November 2018
against Topolewski in the federal action in the amount of
approximately $1.8 billion plus interest, with attorneys’ fees of
approximately $900,000. Thereafter, in September 2019, AECOM
recorded an abstract of judgment with the Los Angeles County
Recorder reflecting the damages and attorneys’ fees awards.
AECOM filed a separate state court action in November
2019 to set aside an allegedly fraudulent conveyance of real
property by Topolewski to a third party (fraudulent conveyance
action). AECOM asserted a judgment lien on all of Topolewski’s
real property interests in Los Angeles County.
The United States Court of Appeals for the Ninth Circuit
reversed and vacated the judgment in the federal action in March
1 All further statutory references are to the Code of Civil
Procedure unless otherwise noted.
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2021, finding insufficient evidence supported the damages award.
Based upon the Ninth Circuit’s ruling, in May 2021, Topolewski
asked AECOM to withdraw its abstract of judgment. AECOM
refused, and in June 2021, recorded an amended abstract of
judgment asserting the nearly $900,000 in attorneys’ fees but
omitting the $1.8 billion damages judgment. AECOM thereafter
continued to refuse to withdraw the original or amended
abstracts.
In June 2021, the judge in the fraudulent conveyance
action found that AECOM’s judgment in the federal action was
not final because the amount of damages had been vacated.
Further, the court found that AECOM could not obtain judgment
in its state case “while the sole basis for its claim remains
disputed in the [federal] action. . . . But the absence of an
underlying judgment does not prevent A[ECOM] from initiating
and prosecuting the present suit short of judgment . . . .”
On August 20, 2022, Topolewski filed this action for abuse
of process based upon AECOM’s refusal to withdraw the
abstracts of judgment. AECOM responded to the complaint with
its anti-SLAPP motion on October 19, 2022.
As is well known, “[t]he anti-SLAPP statute requires a two-
step process: ‘At the first step, the moving defendant bears the
burden of identifying all allegations of protected activity, and the
claims for relief supported by them. . . . If the court determines
that relief is sought based on allegations arising from activity
protected by the statute, the second step is reached. There, the
burden shifts to the plaintiff to demonstrate that each challenged
claim based on protected activity is legally sufficient and
factually substantiated. The court, without resolving evidentiary
conflicts, must determine whether the plaintiff’s showing, if
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accepted by the trier of fact, would be sufficient to sustain a
favorable judgment. If not, the claim is stricken.’ (Baral v.
Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) In making these
determinations the court considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd. (b)(2).)” (Briganti v. Chow
(2019) 42 Cal.App.5th 504, 508 (Briganti)).
AECOM, as the moving defendant, argued to the trial court
its judgment enforcement activity was protected under section
425.16 and Topolewski could not establish a probability of success
on his abuse of process claim because the litigation privilege of
Civil Code section 47 provided a complete and absolute defense to
Topolewski’s claims.
Topolewski’s opposition asserted, essentially, that AECOM
had not satisfied the requirements of the first step because his
claim was based upon AECOM’s refusal to remove the abstracts
of judgment after the judgment in the federal action was
reversed, not the initial filing of the abstracts. Further, according
to Topolewski, he had established that AECOM acted with an
improper purpose in maintaining the abstracts, thus establishing
he had a reasonable probability of prevailing on his abuse of
process claim.
At the hearing, the trial court found that the material facts
were undisputed for the purposes of the motion. As for the first
step, the court found Topolewski conceded the recordation of the
abstracts was protected but asserted that AECOM’s refusal to
withdraw them was the basis of his claim. The court found the
refusal to withdraw the abstracts was protected activity. As for
the second step, the court found that AECOM’s decision to leave
the abstracts in place was privileged under Civil Code section 47,
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subdivision (b). The court relied on O’Keefe v. Kompa (2000) 84
Cal.App.4th 130, 134, and Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1059-1060, which both held that recording and maintaining
abstracts of judgment were protected and privileged. Lastly, the
court observed that Topolewski’s remedy for release of the lien
created by the amended abstract was to return to the federal
court to seek redress.
The trial court granted AECOM’s motion and dismissed
Topolewski’s complaint with prejudice.
AECOM moved for its attorneys’ fees and costs incurred in
connection with the motion. The trial court awarded $41,055.75
in attorneys’ fees, less than AECOM requested.2
DISCUSSION
On appeal, Topolewski maintains his contention that
AECOM’s refusal to withdraw the abstracts (rather than the act
of recording them) was not protected activity within the scope of
section 425.16; further, he asserts the litigation privilege applies
only to communicative acts, not AECOM’s passive inaction in
failing to remove the abstracts. We disagree with Topolewski and
agree with the trial court that Topolewski’s remedy is to return to
the federal district court to seek an appropriate order, such as an
order releasing the lien created by the abstracts or requiring
AECOM to record an appropriate document to the same effect.
(Cf. § 697.410 subd. (c) [outlining similar relief available in state
court actions].) Of course, we take no position on how the federal
court should rule on any such motion.
2 Although AECOM separately cross-appealed this award
and that action was consolidated with this action, AECOM has
dismissed its cross-appeal.
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I. The Trial Court Correctly Found AECOM’s
Recordation of and Refusal to Withdraw the Abstracts of
Judgment Constituted Protected Activity.
A. Code of Civil Procedure Section 425.16.
A SLAPP suit is a meritless lawsuit brought primarily to
inhibit or punish the exercise of the constitutional right of
petition or free speech. (§ 425.16, subd. (a); Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59-60.) The purpose
of the anti-SLAPP statute is to weed out early in litigation
meritless claims arising from protected activity. (Central Valley
Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 216.) To
that end, the Legislature has declared that the statute “‘shall be
construed broadly.’” (Ibid; § 425.16, subd. (a).)
As noted above, the trial court’s analysis of an anti-SLAPP
motion is two-fold. (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 884 (Wilson).) First, the trial court determines
whether the moving party (typically, the defendant) has made a
threshold showing that the challenged claims arose from a
protected activity. (Briganti, supra, 42 Cal.App.5th at p. 508;
§ 425.16, subd. (b)(1).) If the movant makes this threshold
showing, the burden shifts to the opposing party to demonstrate
a probability of prevailing on the claims. (Briganti, supra, 42
Cal.App.5th at p. 508; § 425.16, subd. (b)(1).)
If the defendant fails to meet its burden on the first step,
the trial court should deny the motion; it need not proceed to the
next step to evaluate the merits. (Sheley v. Harrop (2017) 9
Cal.App.5th 1147, 1162.) “A cause of action is subject to dismissal
under the statute only if both steps of the anti-SLAPP analysis
are met.” (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293;
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
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278-279.) The “focus is not the form of the plaintiff’s cause of
action but, rather, the defendant’s activity that gives rise to his or
her asserted liability—and whether that activity constitutes
protected speech or petitioning.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 92, original italics.)
“In deciding whether the ‘arising from’ requirement is met,
a court considers ‘the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.’ (§ 425.16, subd. (b).)” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 79; Wittenberg v. Bornstein (2020) 50 Cal.App.5th
303, 315.) The trial court must look beyond plaintiff’s
characterization of defendant’s conduct to determine, based on
competent evidence, whether the plaintiff’s claims arise from
protected speech or conduct. (See Stewart v. Rolling Stone LLC
(2010) 181 Cal.App.4th 664, 679 [the court does “not evaluate the
first prong of the anti-SLAPP test solely through the lens of a
plaintiff’s cause of action”].)
We review the trial court’s ruling granting the anti-SLAPP
motion de novo. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788.) Thus, we employ the same two-step procedure as did
the trial court in determining if AECOM’s anti-SLAPP motion
was properly granted. (Weeden v. Hoffman (2021) 70 Cal.App.5th
269, 282.)
B. Analysis.
1. First Step.
To satisfy its burden on the first step of the anti-SLAPP
analysis, AECOM was required to make a prima facie showing
that Topolewski’s claims against it “arose from” an act performed
in furtherance of its rights of petition or free speech. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
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1057, 1063 [a claim is the “activity allegedly giving rise to
liability”].) AECOM was not required to prove its conduct is
constitutionally protected as a matter of law. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 319.) The question is only whether
AECOM made a prima facie showing that the activity underlying
the claims alleged against it is statutorily protected. (Wilson,
supra, 7 Cal.5th at p. 888.) In determining whether the claims
arise from protected activity, we do not consider the legitimacy of
plaintiff’s claims. (Coretronic Corp. v. Cozen O’Connor (2011) 192
Cal.App.4th 1381, 1388 [“Arguments about the merits of the
claims are irrelevant to the first step of the anti-SLAPP
analysis”].)
The categories of “protected activity” under section 425.16
relevant here encompass “any written or oral statement or
writing made before a . . . judicial proceeding, or any other official
proceeding authorized by law,” and “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)(1) & (2).)
Thus, a defendant’s act of obtaining an abstract of judgment and
recording it as a real property lien falls within section 425.16,
subdivision (e). (O’Neil-Rosales v. Citibank (South Dakota) N.A.
(2017) 11 Cal.App.5th Supp. 1, 6; Weeden v. Hoffman, supra, 70
Cal.App.5th at p. 285, fn. 3.)
As noted above, however, Topolewski argues that it is not
AECOM’s act of recording the abstracts, but its refusal to
withdraw them that forms the basis of his action. He contends
AECOM’s refusal is not within the scope of section 425.16. We
decline to narrow the statute in that way. Topolewski concedes
that filing the abstracts is protected activity. Although he
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contends AECOM should have withdrawn the abstracts after its
judgment against him was reversed and the case was remanded
to the district court, he does not adequately articulate why
leaving them in place is not also protected speech or petitioning
activity. Both filing and not withdrawing the abstracts are
protected speech within the scope of the anti-SLAPP statute. The
abstracts serve as notice of AECOM’s claim, whether the claim is
valid or not. And the abstracts clearly constitute a “written or
oral statement or writing made in connection with an issue under
consideration or review by a . . . judicial body” as provided for in
the statute. (§ 425.16, subd. (e)(2).)
2. Second Step.
For the second step of the anti-SLAPP analysis, we do not
weigh evidence or resolve conflicting factual claims. (Baral,
supra, 1 Cal.5th at p. 384.) Instead, we limit our inquiry to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment if the plaintiff’s evidence is credited. (Id. at
pp. 384-385.) A court accepts the plaintiff’s evidence as true and
evaluates a defendant’s showing only to determine if it defeats
the plaintiff’s claim as a matter of law. (Id. at p. 385.)
“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.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057.)
At this stage, a plaintiff must show that any asserted
defenses are inapplicable as a matter of law or make a prima
facie showing of facts that, if accepted, would negate such
defenses. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.) The
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litigation “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.) Thus,
communications with some relation to judicial proceedings are
absolutely immune from tort liability. (Rubin v. Green (1993) 4
Cal.4th 1187, 1193.)
AECOM’s judgment enforcement efforts are clearly
privileged under Civil Code section 47, subdivision (b). The action
giving rise to Topolewski’s suit, whether filing the abstracts of
judgment, or leaving them on file, was an extension of the judicial
process in the federal action. (See, e.g., O’Keefe v. Kompa, supra,
84 Cal.App.4th at p. 134 [filing of abstract of judgment in
furtherance of collection efforts privileged].)
As noted above, Topolewski argues that his claim is focused
upon AECOM’s refusal to remove the abstracts, which he
contends is a noncommunicative act that is not protected by the
litigation privilege. We disagree. Both the filing of the abstract
and leaving them on file are communicative acts: they provide
notice of AECOM’s claim to prospective purchasers of real
property owned by the purported judgment debtor. And as noted
above, they are protected by the litigation privilege.
In conclusion, we point out that Topolewski is not without a
remedy for what he contends are improper abstracts of judgment.
A federal court judgment, “once rendered, is final for purposes of
res judicata until reversed on appeal or modified or set aside in
the court of rendition.” (See, e.g., Martin v. Martin (1970) 2 Cal.3d
752, 761, italics added.) As a result, the federal court, not this
court, has jurisdiction over the trademark litigation and is the
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court with the power to effect modification of the abstracts. (See,
e.g., ibid.)
II. ATTORNEYS’ FEES.
The prevailing defendant on an anti-SLAPP motion
“shall be entitled to recover [his or her] attorney’ s fees and
costs.” (§ 425.16, subd. (c)(1).) “[A]ny SLAPP defendant who
brings a successful motion to strike is entitled to mandatory
attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)
Topolewski argues that if we reverse the trial court’s order, the
attorneys’ fees award must also be reversed.
However, Topolewski makes no argument that the fee
award was in an unwarranted amount. As a result, as we affirm
the trial court’s order, we affirm the award of AECOM’s
attorneys’ fees.
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DISPOSITION
The order of the superior court is affirmed. AECOM is to
recover its costs on appeal.
CURREY, Acting P.J.
We concur:
COLLINS, J.
ZUKIN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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