Opinion
E063054
03-02-2018
WAYNE SIGGARD, Plaintiff and Appellant, v. LARRY J. HUDACK, Individually and as Co-Trustee, etc. et al., Defendants and Respondents.
The Rossell Law Firm and Craig N. Rossell for Plaintiff and Appellant. Larry J. Hudack, in pro. per., for Defendant and Respondent. Marianne S. Hudack, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. MCC1400865) OPINION APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed. The Rossell Law Firm and Craig N. Rossell for Plaintiff and Appellant. Larry J. Hudack, in pro. per., for Defendant and Respondent. Marianne S. Hudack, in pro. per., for Defendant and Respondent.
Plaintiff and appellant Wayne Siggard sued defendants and respondents Larry J. Hudack and Marianne S. Hudack, and others for malicious prosecution and conspiracy. Larry and Marianne (collectively, the Hudacks) moved the trial court to strike Siggard's complaint as a strategic lawsuit against public participation (anti-SLAPP). (Code Civ. Proc., § 425.16.) The trial court granted the motion. Siggard contends the trial court erred because Siggard demonstrated a probability of prevailing. We affirm the judgment.
We use first names for ease of reference and clarity as the parties share a last name. No disrespect is intended.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from Siggard's complaint. The Hudacks owned several parcels of property in La Cresta, an unincorporated area of Riverside County near Murrieta. The Hudacks' land totaled approximately 50 acres. The Hudacks lived on their property. Siggard owned a 10-acre unimproved parcel adjacent to one of the Hudacks' parcels. The Hudacks' property and Siggard's property were zoned for residential use. Siggard was a licensed general contractor and he intended to develop his parcel.
In May 2006, Siggard graded a hillside on his property (the property). Siggard created dirt roads in steep terrain. In May 2006, the Hudacks sued Siggard due to Siggard's grading of the property. The Hudacks' original complaint included causes of action for breach of contract/specific performance, trespass, encroachment, nuisance per se, private nuisance, negligence, and violation of the California Environmental Quality Act (CEQA).
The Hudacks alleged Siggard's grading was conducted without the necessary permits and approvals. The Hudacks alleged Siggard did not properly compact the soil; graded directly into Bear Creek, which materially changed the creek bed; moved boulders into Bear Creek; blocked a stream and drainage near Bear Creek; pushed dirt onto the Hudacks' property; changed the drainage around the Hudacks' property; and cut down an oak tree on the Hudacks' property. The Hudacks sought to have Siggard restore the property to its original pregraded condition.
The Hudacks had been informed, prior to filing their complaint, that Siggard had a valid agricultural exemption to the typical grading permit requirements. The Hudacks' claims about Siggard's unlawful grading were "legally untenable." In December 2009, after the property was foreclosed upon, the Hudacks purchased the property. The Hudacks sued Siggard for the purpose of artificially depressing the value of the property so that they could purchase it at a discounted amount. The CEQA cause of action would have permitted the Hudacks to recoup their attorney's fees.
In 2010, after the Hudacks purchased the property, they used heavy equipment to place a 50- to 60-feet-long culvert at the bottom of a lateral stream they had accused Siggard of harming, and constructed a dirt road over the culvert so the Hudacks could easily drive their ATVs and other vehicles over it. The Hudacks' project was conducted without any permits or permit exceptions, without input from engineers, and without a licensed contractor. Thus, the Hudacks sued Siggard for his grading without permits, but then conducted their own project without permits. The Hudacks sued Siggard to have him restore the property to its original condition, but then performed their own excavation project on the property. After the Hudacks performed their own excavation of the property, their claims against Siggard "were untenable."
The case proceeded to trial. The Hudacks' experts testified that Siggard's grading work would cost the Hudacks "hundreds of thousands of dollars to remediate," despite the experts being aware of the Hudacks' excavation activities. The Hudacks' experts relied primarily on the Hudacks' statements, rather than conducting independent research.
The jury found in favor of Siggard on the Hudacks' causes of action. The jury found in favor of Siggard on Siggard's cross-complaint cause of action for nuisance. The jury awarded Siggard damages and punitive damages for a total of $604,700. The Hudacks appealed the judgments. The judgments were affirmed by this court. (Hudack et al. v. Siggard et al. (Oct. 17, 2013, E052779) [nonpub. opn.].) The Hudacks petitioned the California Supreme Court. The petition was denied. The Hudacks petitioned the United States Supreme Court. The petition was denied.
In Siggard's complaint in the instant case, Siggard asserted he was injured by the foregoing acts of malicious prosecution. Siggard also alleged the Hudacks conspired to engage in meritless litigation. Siggard sought general, special, and exemplary damages, as well as costs, and any other proper relief.
B. ANTI-SLAPP MOTION
The Hudacks filed an anti-SLAPP motion. (§ 425.16.) The Hudacks asserted their lawsuit was not meritless or " 'legally untenable.' " The Hudacks explained the jury had found (1) Siggard intentionally or negligently encroached on the Hudacks' property; (2) Siggard intentionally, recklessly, or negligently entered the Hudacks' property and cut down a tree or damaged their timber; and (3) Siggard was negligent. However, despite these findings of liability, the jury found the Hudacks did not suffer damages. The Hudacks asserted there was evidence supporting their causes of actions, as evinced by the jury's findings and the trial record.
For the sake of accuracy, we note the following from the jury's special verdict: (1) causation was not found in the trespass and negligence causes of action; (2) a damages finding was not made in the trespass to timber cause of action; (3) a violation of a county ordinance was not found in the nuisance per se cause of action; and (4) a harmful condition was not found in the private nuisance cause of action.
Further, the Hudacks asserted they relied on the advice of experienced attorneys when bringing their lawsuit, and they relied on experts, who were recommended by their attorneys. The Hudacks contended Siggard could not demonstrate (1) malice on the part of the Hudacks; and (2) the Hudacks' lawsuit lacked probable cause. The Hudacks asserted their reliance on the advice of counsel was a complete defense to the probable cause element.
C. OPPOSITION
Siggard opposed the anti-SLAPP motion. Siggard asserted the prior trial had terminated in his favor. In regard to probable cause and malice, Siggard contended the Hudacks' conclusory assertion that they made a full disclosure to counsel and relied on the advice of counsel was insufficient for defense purposes.
D. HEARING
The trial court held a hearing on the anti-SLAPP motion. The court said its tentative ruling was to grant the motion. The court explained there was no disagreement as to the first prong of the anti-SLAPP analysis—protected activity. In regard to the second prong—probability of prevailing—the court found Siggard focused on malice, "without much regard to the probable cause issues." The court concluded, "I just do not see that there is sufficient cause to bring a malicious prosecution [claim]. And [Siggard has] not made out a case sufficient to avoid the strike."
Siggard asserted the Hudacks failed to establish an advice-of-counsel defense. Siggard contended the Hudacks failed to prove what disclosures were made to their attorneys. The trial court disagreed, saying, "Their evidence is sufficient to show that they have told them everything." Siggard asserted the Hudacks' evidence lacked specifics, and asserted an advice-of-counsel defense could not be established in an anti-SLAPP motion.
The Hudacks asserted Siggard had no evidence to support his contention that the Hudacks withheld information from their attorneys. The Hudacks contended they provided proof that they disclosed all necessary information to their attorneys who then advised them they had a valid case. The trial court granted the anti-SLAPP motion.
DISCUSSION
A. CONTENTION
Siggard contends the trial court erred by granting the anti-SLAPP motion because he demonstrated a probability of prevailing.
B. STANDARD OF REVIEW
We apply the de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) " 'We consider "the pleadings, and supporting and opposing affidavits upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." ' " (Id. at p. 326.)
C. GENERAL ANTI-SLAPP LAW
"Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.' " (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.)
D. PROBABILITY OF PREVAILING
1. LAW
a. Procedure
"[W]e must determine whether [Siggard] has demonstrated a probability of prevailing on the merits. To do so, [Siggard] must state and substantiate a legally sufficient claim [citation], thereby demonstrating his case has at least minimal merit. [Citation.] [¶] 'Put another way, [Siggard] "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Finton Construction, Inc. v. Binda & Keys, APLC (2015) 238 Cal.App.4th 200, 211.)
b. Malicious Prosecution
The elements of a malicious prosecution cause of action are (1) the prior action was commenced by or at the direction of the defendant; (2) the prior action was pursued to a legal termination that favored the plaintiff; (3) the prior action was brought without probable cause; and (4) the prior action was initiated with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.)
2. ANALYSIS
a. Lack of Probable Cause
We examine whether Siggard presented a prima facie case that the Hudacks lacked probable cause. "Probable cause is established by showing that the 'claim . . . is legally sufficient and can be substantiated by competent evidence.' " (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1019-1020.) The presence or absence of probable cause is viewed under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior case. [Citation.] The test of determining probable cause is whether any reasonable attorney would have thought the claim to be tenable." (Id. at p. 1018.) "[T]he issue of whether there was an absence of probable cause in bringing the prior case is a question of law to be determined by the court." (Ibid.)
In Siggard's opposition to the anti-SLAPP motion and in his opening brief, he raises six arguments concerning the Hudacks allegedly lacking probable cause. First, Siggard asserts the Hudacks lacked probable cause because the Hudacks received two notices from the County of Riverside reflecting Siggard's grading was authorized. In this argument, Siggard does not explain (1) what cause of action brought by the Hudacks pertained to Siggard's grading, and (2) how the Hudacks' allegations were limited to grading that was within the scope of his agricultural grading permit, as opposed to allegations that Siggard exceeded the scope of the permit.
Multiple pages of the Hudacks' fifth amended complaint are missing from the record on appeal. In the portions of the Hudacks' fifth amended complaint that are included in the record, it appears multiple causes of action may relate to Siggard's grading. It is unclear which causes of action Siggard is asserting lacked probable cause. Because we do not know which causes of action Siggard is asserting are legally insufficient, we cannot analyze the issue presented. In sum, because it is unclear why Siggard believes the notice to the Hudacks demonstrates a lack of probable cause, we find Siggard's argument to be unpersuasive.
Second, Siggard asserts the Hudacks lacked probable cause because the Hudacks graded the property upon becoming the owners of the property. Siggard contends the Hudacks had no basis to sue Siggard for remediation damages following the Hudacks own grading of the property. In support of this argument, Siggard cites to (1) a 2008 estimate for the cost of remediation services; and (2) the trial court's ruling on the writ.
In the Hudacks' original complaint, they alleged a CEQA violation. The Hudacks asserted an Environmental Impact Report should have been issued for the grading Siggard performed on the property. "The Hudacks requested a '[w]rit of mandamus to require the defendants to recognize that the defendants [sic] grading project is subject to CEQA and to require said defendants to comply with the CEQA act [sic] and prepare an [EIR].' The trial court scheduled the hearing on the petition for a writ of mandate for April 2007."
Following the hearing, in May 2007, the trial court (Hon. Thomas H. Cahraman) granted the writ. "The writ directed County to 'vacate and set aside its approval of the agricultural exemption to the permit requirements; and (2) take such action as may be necessary to bring the project into compliance with [CEQA], sections 21000, et seq., of the Public Resources Code.' "
An allegation of a CEQA violation was included in the Hudacks' fifth amended complaint. The Hudacks sought an order requiring Siggard to return the property to its pregraded condition. In September 2009, Siggard demurred to the Hudacks' fifth amended complaint. The trial court (Hon. Bernard Schwartz) explained that CEQA did not authorize the court to issue an order requiring Siggard to restore the property to its pregraded state. The trial court sustained the demurrer without leave to amend as to the CEQA cause of action.
Siggard provides no evidence in support of his assertion that there was no basis to sue Siggard. For example, Siggard does not cite to evidence reflecting it was impossible to remediate the damage caused by Siggard. To the contrary, Siggard cites to a 2008 estimate reflecting the cost of remediating the damage, which indicates the damage could be repaired. In Siggard's complaint he alleges that the Hudacks graded the property in 2010. Siggard does not provide evidence reflecting the Hudacks' 2010 grading made it impossible to remediate the damages allegedly caused by Siggard's grading. For example, Siggard does not cite to evidence reflecting the Hudacks graded in the exact location that Siggard graded and thus it was impossible to repair the damage allegedly caused by Siggard. Accordingly, Siggard has not explained why the Hudacks lacked probable cause.
Third, Siggard asserts the Hudacks lacked probable cause because they willfully misconstrued the law. Siggard asserts the Hudacks' engineering expert testified that moving more than 200 cubic yards of dirt required an engineer; however, that was incorrect because that rule only applies to constructing houses, and Siggard's earth-moving was done for agricultural purposes. Siggard asserts the engineering expert's understanding of the law came from Larry.
Siggard's contention that the Hudacks were mistaken about the law does not explain why the Hudacks lacked probable cause. Siggard has not explained why a reasonable attorney would have found the Hudacks' claims to be untenable due to the Hudacks' misunderstanding of the law. In other words, it is possible that despite the Hudacks' mistake of law, their claims still had merit. For example, on the trespass to timber cause of action, the jury found fault on the part of Siggard. Siggard has not explained how the Hudacks' misunderstanding of the law caused their lawsuit to lack merit. Accordingly, Siggard has not demonstrated a lack of probable cause.
"The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm." (Ralphs Grocery v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)
The jury found (1) Siggard intentionally, recklessly, or negligently cut down the Hudacks' timber; (2) Siggard lacked permission to cut the timber; and (3) Siggard's conduct was a substantial factor in harming the Hudacks. The special verdict form was poorly organized. A question concerning double or treble damages for the trespass to timber preceded the question regarding damages in general. Because the jury found treble damages were not warranted, due to a lack of wrongful intent, it never made a general finding concerning harm/damages. Because there was no finding of harm/damages, the cause of action was resolved in Siggard's favor.
Fourth, Siggard asserts the Hudacks lacked probable cause in bringing a breach of contract cause of action to demand the sale of Siggard's land because the contract negotiations were not complete and a contract was not executed. The Hudacks breach of contract cause of action was included in their original complaint. The alleged contract for the sale of Siggard's land was attached as an exhibit to the Hudacks' original complaint. The alleged contract reflects a signed counter offer by Siggard, but no signature of acceptance by the Hudacks.
A contract for the sale of land must be in writing. (Civ. Code, § 1624, subd. (a)(3).) Acceptance is required to form a contract. (Pacific Bay Recovery, Inc. v. California Physicians' Services, Inc. (2017) 12 Cal.App.5th 200, 215.) It appears that when the Hudacks filed their original complaint, there was no basis for including a breach of contract cause of action because there was no acceptance, and hence no contract. Thus, Siggard has shown minimal merit concerning a lack of probable cause for the breach of contract cause of action in the original complaint because the document attached to the Hudacks' original complaint is not a contract.
Fifth, Siggard asserts that in the Hudacks' original complaint they alleged Siggard destroyed or irreparably damaged waterways, riparian habitat, wildlife corridors, plants, and trees; however, at trial, the Hudacks presented no evidence to support this allegation. Additionally, Siggard asserts that in the Hudacks' original complaint they alleged Siggard violated seven environmental statutes, but the Hudacks did not support this allegation with evidence at trial. The operative complaint at the time of trial was the Fifth Amended Complaint. Siggard fails to explain why the Hudacks needed to present evidence at trial to support an original complaint that was no longer operative. Accordingly, we fail to see the relevance of whether there was evidence at trial to support the allegations in the original complaint.
Sixth, Siggard asserts that the Hudacks failed to demonstrate that the Hudacks had probable cause. In an anti-SLAPP motion, the burden is on the plaintiff to demonstrate that his malicious prosecution case has minimal merit. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) The Hudacks do not bear the burden of demonstrating that they had probable cause to bring their lawsuit. Siggard bears the burden of minimally demonstrating that the Hudacks lacked probable cause. Accordingly, Siggard's argument does not demonstrate a lack of probable cause.
In sum, Siggard has demonstrated there is minimal merit to his allegation that the Hudacks lacked probable cause for the breach of contract cause of action in the Hudacks' original complaint.
b. Malice
We now turn to the element of malice. "As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. [Citation.] As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. [Citations.] It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim 'can only be motivated by an improper purpose.' [Citation.] A lack of probable cause will therefore support an inference of malice." (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 451-452.)
We have concluded ante that there was a lack of probable cause for the breach of contract cause of action. Accordingly, there is an inference of malice. However, that inference is defeated by the Hudacks' act of deleting the breach of contract cause of action within one month of bringing it. The breach of contract cause of action was included in the Hudacks' original complaint filed on May 25, 2006. The breach of contract cause of action was omitted from the first amended complaint filed on June 20, 2006. The cause of action was not included in the fifth amended complaint, which was the operative complaint at the time of the trial. Thus, the breach of contract cause of action was part of the case for less than one month. Because the Hudacks acted so quickly in dropping the breach of contract cause of action, it appears that the inclusion of the breach of contract cause of action was more of a mistake than a malicious act. Accordingly, Siggard has failed to make a prima facie showing of malice in relation to the breach of contract claim.
Siggard raises three arguments concerning malice. First, Siggard asserts the Hudacks brought the breach of contract cause of action "to force a settlement having no relation to the merits of the claim." Siggard cites no evidence to support this assertion. For example, Siggard does not cite to a declaration reflecting he participated in a settlement conference between the filing of the original complaint on May 25, 2006, and the filing of the first amended complaint on June 20, 2006.
Siggard's second and third points are that the Hudacks acted maliciously in bringing the breach of contract cause of action because (a) Larry wrote a story based upon the parties' situation, which presented Siggard in an unfavorable light, and Larry shared the story with others; and (b) on Siggard's cross-complaint in the prior action, the jury found the Hudacks engaged in trespass or nuisance with malice, oppression, and fraud.
If we assume Siggard is correct about the jury's finding and about the story being unfavorable, then his contention shows that the Hudacks acted maliciously toward Siggard on a prior occasion (the trespass or nuisance) and that Larry perhaps had an unfavorable view of Siggard (as shown by the story). However, our question is whether Siggard has shown minimal merit to his claim that the Hudacks brought the breach of contract cause of action for a purpose other than to enforce their legitimate rights. Given that the Hudacks deleted the cause of action within one month of bringing it, it does not appear that the Hudacks had an ulterior motive in bringing the cause of action; rather, it appears they made a mistake in bringing the cause of action and sought to remedy that mistake by filing a first amended complaint. Moreover, as set forth ante, it has not been minimally shown that the Hudacks lacked probable cause for the causes of action that they took to trial. Therefore, we cannot infer that there was malice due to an overall lack of probable cause in bringing the case. In sum, a minimal showing of malice has not been made.
c. Conclusion
The only cause of action for which there is a minimal showing of a lack of probable cause is the breach of contract cause of action from the original complaint; however, there is not a minimal showing of malice. Thus, Siggard has not established that there is minimal merit to his malicious prosecution cause of action. In conclusion, the trial court did not err by granting the anti-SLAPP motion.
E. CONSPIRACY
Siggard contends that if the anti-SLAPP ruling is reversed as to the malicious prosecution cause of action, then it should also be reversed as to the conspiracy cause of action because the conspiracy claim is a derivative claim. We are affirming the trial court's ruling as to the malicious prosecution cause of action, and therefore will also affirm the ruling as to the conspiracy cause of action.
F. OTHER CONTENTIONS
Siggard contends the trial court erred because (1) it confused the parties and the parties' conduct; (2) it failed to understand the scope of the malicious prosecution cause of action; and (3) it improperly used anti-SLAPP motions filed by other defendants in the case when deciding the Hudacks' anti-SLAPP motion. Our review of the trial court's ruling was de novo. (Flatley v. Mauro, supra, 39 Cal.at p. 325.) In a de novo review no deference is given to the trial court's ruling. (Romero v. American President Lines, Ltd. (1995) 38 Cal.App.4th 1199, 1203.) Because we gave no deference to the trial court's ruling, we need not analyze whether the foregoing alleged errors occurred.
G. EVIDENTIARY OBJECTIONS
In Siggard's reply brief, he raises objections to evidence cited by the Hudacks. Our analysis is based upon the exhibits provided by Siggard. Accordingly, we will not further address Siggard's evidentiary objections.
DISPOSITION
The judgment is affirmed. The Hudacks are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.