No. A149097.

KAREN A. FAGUNDES, Plaintiff and Appellant, v. TIMOTHY SILVA, Defendant and Respondent.

Court of Appeals of California, First District, Division One.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115.


Appellant Karen Fagundes sued her brother, respondent Timothy Silva, based primarily on Silva's testimony in a separate lawsuit brought by a different sibling. The trial court granted Silva's motion to strike Fagundes's complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)1 We affirm. Silva's testimony was activity protected by the anti-SLAPP statute, and Fagundes has not shown a probability of succeeding on the merits of her claims.



This dispute arises from the 1994 sale of a family home in Redwood City. The parties' mother died in 1993 and left the Redwood City home to her five children: Fagundes, Silva, a brother, and two sisters. Silva bought out his siblings' interest in the home in August 1994, paid them each around $42,800, and took title of the property.

Years later a dispute arose over the sale, and the parties' brother claimed that he and Silva had an oral agreement under which the brother held a 50 percent interest in the home even though Silva held legal title to the property. The brother sued Silva in February 2013, alleging causes of action for breach of contract, fraud, and other claims. Following a bench trial, the trial court in that separate case concluded that the brother's claims were barred by the statute of limitations and the statute of frauds. The case was dismissed in August 2015.

Seven months later, in March 2016, Fagundes wrote to Silva to ask for all the documents he had submitted in the brother's lawsuit, and she accused Silva of lying about the oral agreement regarding the Redwood City home.

Proceeding without an attorney, Fagundes filed the complaint against Silva in this action on April 19, 2016, alleging causes of action for fraud, breach of contract, and breach of the covenant of good faith and fair dealing. According to her complaint, Silva lied about the 1994 home transaction during the brother's lawsuit against Silva and "made numerous purgerous [sic] statements."2 She further alleged that Silva "made numerous statements in writing and to the court [in the brother's lawsuit] that there was infact [sic] an oral agreement between [Fagundes] and [Silva]." Fagundes's complaint listed several statements Silva made under oath in the brother's lawsuit that were alleged to be false.

Silva demurred to the complaint and filed an anti-SLAPP motion. He argued that the allegations of Fagundes's complaint arose from activity protected by the anti-SLAPP statute and that Fagundes could not establish a likelihood of prevailing on the merits.

The trial court issued a tentative ruling granting the anti-SLAPP motion. At the hearing on the motion, Fagundes said she was "so upset" and was "not good at this." She briefly argued why her case should proceed, then asked if she could read a written two-page statement to the court. After the court reporter told Fagundes that she was speaking too quickly, the court asked whether Fagundes would like to submit the statement to the court. The court took a recess to read the statement and ordered that it be filed. The statement does not appear in the record.

The trial court then granted Silva's motion to strike. The court concluded that Fagundes had alleged activity by Silva that was protected by the anti-SLAPP statute, could not establish that she could prevail on her complaint, failed to allege any facts that would justify tolling the statute of limitations, and had not submitted any admissible evidence in support of her opposition to the anti-SLAPP motion. The court also ruled that Silva was entitled to request attorney fees under section 425.16, subdivision (c)(1). Although it appears from the trial court's docket that Silva filed a motion for attorney fees, no order on the motion appears in the record.



Fagundes, still proceeding without an attorney, argues that the trial court erred in granting Silva's anti-SLAPP motion, but we disagree.

The anti-SLAPP statute allows a defendant to move to dismiss "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421.) The heart of the statute states: "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).)

In deciding whether to grant a defendant's anti-SLAPP motion, courts engage in a two-step, burden-shifting analysis. Under the first step, the court considers whether the defendant has made a prima facie showing that the plaintiff's cause of action arises from actions taken in furtherance of the right of petition or the right of free speech in connection with a public issue. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To make such a showing, the defendant need not show that his or her actions were protected as a matter of law, but need only establish a prima facie case that the actions fell into one of the categories listed in section 425.16, subdivision (e). (Flatley v. Mauro (2006) 39 Cal.4th 299, 314.) Here, there can be no serious dispute that Silva sustained his burden under the first step of showing that Fagundes's claims arose out of protected activity, because Silva's activity in the prior case involved "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a . . . judicial body" (§ 425.16, subd. (e)), i.e., the brother's lawsuit. Fagundes's complaint included a list of statements that Silva made in her brother's lawsuit, and these statements were the bases of her causes of action. In this appeal, Fagundes argues that those statements are "not protected speech when [Silva] lies and perjurs [sic] himself to commit fraud upon the court." But these bald assertions do not establish that Silva lied in the course of his brother's lawsuit, let alone that his statements fell outside the protection of the anti-SLAPP statute.

Accordingly, the assessment turns to the second step where the burden shifts to the plaintiff, in this case Fagundes. Under this step, the anti-SLAPP motion will be granted unless the plaintiff establishes "a probability" a claim will prevail, even though the claim arose from protected activity. (§ 425.16, subd. (b)(1).) This means the "`"plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment."'" (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476, italics omitted.) To demonstrate the complaint is legally sufficient, the plaintiff is only required to show a "`minimum level of legal sufficiency and triability.'" (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) If the plaintiff can meet this burden, the anti-SLAPP motion must be denied, and the plaintiff may continue to litigate the case. (See Flatley v. Mauro, supra, 39 Cal.4th at p. 332 & fn. 16.)

In determining whether the plaintiff has met the second step's burden, the "`trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417.) The Legislature did not intend for courts to weigh conflicting evidence to determine whether it is more probable than not that a plaintiff will prevail on the clam "but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation." (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) Thus, "the court's responsibility is to 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." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

We review the trial court's order granting Silva's anti-SLAPP motion de novo and apply our independent judgment to determine whether Fagundes has shown a probability of prevailing on her claims. (Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1447.) We have no trouble concluding that Fagundes wholly failed to make such a showing under this standard.

Fagundes has sued Silva over a home sale that took place more than 20 years ago. The trial court that dismissed her other brother's lawsuit concluded that claims based on the same transaction were time barred and barred by the statute of frauds.3 In these proceedings, Fagundes's allegations suffer the same fatal flaws, and she does not show otherwise. She attempts to avoid the timeliness issue by alleging that Silva prevented her from learning about her causes of action related to the 1994 home sale, thus tolling the statute of limitations. These efforts fail. (See Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1613-1614 [analyzing discovery rule of accrual of cause of action].) Fagundes's allegations are confusing and rambling, but they apparently center on Silva's alleged concealment of an appraisal that he obtained for the family home before the 1994 sale. But Silva submitted a declaration in support of his anti-SLAPP motion attesting that he gave his brother all documentation he obtained in 1994 regarding the value of the family home, and attesting that he never saw the appraisal obtained by the lender from which he obtained a loan to buy out his siblings' interest in the home. Fagundes did not refute these factual allegations below.

Nor does Fagundes provide any compelling argument in this appeal to demonstrate the legal sufficiency of her complaint. She argues that the trial court "ignored the evidence," presumably a reference to the statement she provided to the trial court at the hearing on Silva's motion. But the trial judge specifically stated that he had read the entire submission. The statement does not appear in the appellate record, and Fagundes does not explain why it should have changed the trial court's conclusion.

Fagundes claims that two exhibits that do appear in the record, an August 1994 borrower's closing statement and the 1994 grant deed to the family home, show a conspiracy to commit a tortious scheme, but they do no such thing. According to Fagundes, the transaction took place on August 11, but after the grant deed was signed "another Date of August 9, 1994 was added without the knowledge of the trustees." It does not appear on the face of the deed that the document was altered, and Fagundes does not establish how the two-day discrepancy in relevant dates is evidence of a conspiracy or an attempt to conceal a cause of action. Fagundes likewise makes much of the fact that she and her siblings never agreed that Silva could take out a loan on the family home (something he did to obtain money to buy out his siblings' interest), but she never articulates how she was harmed by the mortgage or explain why she was unable to learn at the time how Silva obtained the money to pay her. Her complaint's allegations, as well as her arguments on appeal, fall far short of establishing "illegal" activity. (Cf. Flatley v. Mauro, supra, 39 Cal.4th at p. 305 [communication that is illegal as a matter of law is not protected by anti-SLAPP statute].)

Finally, we are not sure what to make of Fagundes's argument that Silva's attorney should not receive attorney fees or costs. A prevailing defendant such as Silva is entitled to recover attorney fees and costs under section 425.16, subdivision (c)(1). But there is no attorney fees order for this court to review. None appears in the record, and there is no indication that Fagundes appealed from any such order.



The order granting Silva's motion to strike is affirmed. Silva shall recover his costs on appeal.

Margulies, J. and Dondero, J., concurs.


1. "SLAPP is an acronym for `strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All statutory references are to the Code of Civil Procedure.
2. Fagundes's complaint is written mostly in capital letters. We do not follow that format when we quote from the pleading.
3. The trial court here took judicial notice of the order dismissing the brother's lawsuit, a ruling that Fagundes does not challenge on appeal. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 832, fn. 9 [where appellant does not challenge the granting of judicial notice, issue is forfeited].)


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