Richard C. Colyear, Plaintiff and Appellant, v. Rolling Hills Community Association  of Rancho Palos Verdes et al., Defendants and Respondents.

Summary by Mary M. Howell, Esq.:

Because an ongoing controversy about the authority of a homeowners association to enforce tree-trimming covenants was an issue of public interest under Code of Civil Procedure section 425.16, subd. (e)(4), the anti-SLAPP statute applied to claims alleging that an enforcement application wrongfully clouded the title of a homeowner whose trees might be affected.

*** End Summary **

9 Cal.App.5th 119 (2017)

No. B270396.

Court of Appeals of California, Second District, Division Four.

February 28, 2017.

123*123 APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BS150539, Robert Leslie Hess, Judge. Affirmed.

Law Offices of Michael D. Berk, Michael D. Berk; Greines, Martin, Stein & Richland, Kent Richland and Jonathan H. Eisenman for Petitioner and Appellant.

Hanson Bridgett, Christopher David Jensen; and Alice Liu Jensen for Defendant and Respondent Yu Ping Liu.

OPINION

COLLINS, J. —

INTRODUCTION

Defendant homeowner Yu Ping Liu submitted an application to his homeowners association, defendant Rolling Hills Community Association of Rancho Palos Verdes (HOA), seeking to invoke the HOA’s dispute resolution process against a neighbor who refused to trim trees blocking Liu’s view. Plaintiff Richard C. Colyear, another neighbor and HOA member, sued Liu and the HOA, alleging that two of the offending trees were actually on his property, that the relevant tree-trimming covenant did not encumber his property, and therefore that Liu and the HOA were wrongfully clouding his 124*124 title by seeking to apply such an encumbrance. Liu filed a special motion to strike the claims alleged against him under Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] The trial court granted the motion and Colyear now appeals.

We conclude Liu has made a prima facie showing that Colyear’s complaint arises from Liu’s statements made in connection with an issue of public interest, and therefore Liu’s statements are protected under section 425.16, subdivision (e)(4) (section 425.16(e)(4)). In addition, Colyear cannot show a probability of success on the merits of his claims against Liu, particularly because Liu dismissed his application shortly after the lawsuit was filed and has never sought to invoke the HOA’s tree-trimming process against Colyear. We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

A. Background

Liu and Colyear are both homeowners in Rancho Palos Verdes, a planned residential community in the city of Rolling Hills. The property immediately north of Liu’s property is owned by Richard and Kathleen Krauthamer. Colyear’s property is directly east of the Krauthamer’s property, and kitty-corner to Liu’s property. Liu, Colyear, and the Krauthamers are all members of the HOA.

Each home within the community is subject to a declaration of covenants, conditions, and restrictions (CC&Rs). The original declaration recorded in 1936, declaration 150 (Declaration 150), set forth the specific property to be included in the community, conferred authority on the HOA to (among other things) “interpret and enforce” the CC&Rs, and detailed a number of CC&Rs applicable to the specified lots. As relevant here, in article I, section 11, Declaration 150 conferred upon the HOA “the right at any time to enter on or upon any part” of a property subject to that declaration “for the purpose of cutting back trees or other plantings which, in the opinion of the [HOA], is warranted to maintain and improve the view of, and protect, adjoining property.”

As the community expanded, the HOA entered into new declarations covering the additional properties; those declarations contained provisions that were similar, but not identical, to Declaration 150. Declaration 150-M, recorded in 1944, added the property including the lots now owned by Liu, 125*125 Colyear, and the Krauthamers. Liu does not dispute that these three lots are burdened by declaration 150-M (Declaration 150-M), rather than by Declaration 150, and that 150-M does not contain a provision similar to that in Declaration 150 regarding tree trimming.[2]According to Colyear, Declaration 150 applies to approximately 84 lots, Declaration 150-M applies to approximately 14 lots, and other declarations cover an additional 657 lots. Ultimately, the community subject to HOA jurisdiction grew to encompass the same boundaries as the city of Rolling Hills. (See Russell v. Palos Verdes Properties (1963) 218 Cal.App.2d 754, 758 [32 Cal.Rptr. 488],disapproved of on another ground by Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 [47 Cal.Rptr.2d 898, 906 P.2d 1314].)

The HOA is governed by a board of directors. Starting in 1997, the board adopted resolutions to “establish procedures for its members to utilize the authority of the [HOA] to correct view impairments created by trees or other plantings.” The board adopted the most recent version, resolution 220 (Resolution 220), in 2012. Resolution 220 quoted the tree-trimming provision in article I, section 11 of Declaration 150 and stated that it “applies to some, if not all, properties in the City of Rolling Hills.” Resolution 220 further made the following findings: “WHEREAS, the [HOA] has held public meetings, circulated drafts of policy alternatives, and received numerous written and oral communications from its members; [¶] WHEREAS, Rolling Hills enjoys both beautiful views and an abundance of mature trees, and values both …; [¶] WHEREAS, the [HOA] wishes to adopt both guidelines and establish procedures for its members to utilize the authority of the [HOA] to correct view impairments, which cannot be resolved between the parties; [¶] WHEREAS, the Deed Restrictions give the [HOA] `… the authority to exercise such powers of control, interpretation, construction, consent, decision, determination … and/or enforcement of covenants … as far as may legally be done.'” Based on these and other findings, Resolution 220 established guidelines for processing “all view impairment applications” submitted to the HOA, including submission of an application by the homeowner requesting tree removal, payment by the applicant of an administrative fee and agreement to pay the entire cost of tree trimming or removal, notice sent by the HOA to the affected owner and contiguous property owners, a decision and report by a View Committee, and a process by which to appeal that decision to the board. Resolution 220 also noted that the “City of Rolling Hills Ordinance Chapter 17.26 provides a procedure for abatement of view impairment; so [HOA] members have another alternative for view restoration.”

126*126 As early as 2002, Colyear began to inquire of the board (based on the predecessor to Resolution 220) whether it was the HOA’s position that the tree-trimming provision was enforceable against his lot. At the time, he was told it was not, and he would “have to use the City’s Ordinance” to settle any view disputes.

B. Liu’s Application and Colyear’s Complaint

In January 2015, in accordance with the process outlined in Resolution 220, Liu filed an “Application for Assistance to Restore View” with the HOA, identifying the Krauthamer property as the location of the obstructing trees or shrubs. In a statement attached to the application, Liu explained that the view from his residence was obstructed by several trees and hedges on the south side of the Krauthamers’ property. He said he had attempted to resolve the issue by speaking to Richard Krauthamer starting in late 2012, and by contacting the HOA’s city manager in June 2013 and requesting that she informally mediate the dispute. As a result, according to Liu, Krauthamer agreed to trim his trees but never did so. Liu also attached to his application several photographs of the offending trees and hedges. The application does not reference Colyear or Colyear’s property.

As an adjoining property owner, Colyear received notice of Liu’s application shortly after it was submitted. Colyear then filed the instant action on March 4, 2015, seeking writ relief and naming Liu, the HOA, its board, and individual board members as respondents. Colyear alleged that Liu’s application “may implicate” trees on Colyear’s property, but did not otherwise seek relief from Liu.

Liu withdrew his application to the HOA on April 14, 2015. As a result, the HOA never issued any decision on the application. Following the withdrawal, the HOA had no pending applications involving either Liu or Colyear’s property.

In August 2015, the trial court sustained the demurrers filed by all defendants, and granted leave to amend. Colyear filed an amended pleading, including a petition for writ of traditional mandate and prohibition against the HOA and its board, and a verified complaint “for Declaratory Relief, Injunctive Relief, To Quiet Title, and for Damages” against all defendants (FAC). The FAC sought a declaration, among other things, that Colyear’s lot was not subject to the tree-trimming covenant in Declaration 150 and that such covenant could not be enforced against his lot or other lots not encumbered by that declaration, and that Resolution 220 was void to the extent it purported to enforce such tree-trimming covenants in this manner. Colyear further alleged that some of the offending trees designated by Liu on 127*127the photos attached to his application were on Colyear’s lot, thus Liu “sought to apply the Liu Application to cut back trees and plantings on Colyear’s lot.” Moreover, although Liu had withdrawn his application, Colyear alleged that Liu “expressly refused to acknowledge and agree” that he would not in the future “seek to enforce the Trees and Plantings Covenant against Colyear’s lot.”

The FAC also sought to quiet title “to Colyear’s lot against adverse claims” by defendants “in that each claims that Colyear’s lot is covered by the Trees and Plantings Covenant in Declaration 150, although Colyear’s lot is not covered by the Trees and Plantings Covenant, and seeks, or claims the right to seek, to enforce the Trees and Plantings Covenant against Colyear’s lot.” In addition, the FAC sought injunctive relief barring defendants from seeking to enforce the relevant covenant against Colyear’s lot or any other lots not encumbered by Declaration 150, as well as compensatory and punitive damages from the HOA and the board for alleged fraud and breaches of fiduciary duties.

C. Liu’s Anti-SLAPP Motion

Liu filed a special motion to strike the FAC pursuant to section 425.16, arguing that his view impairment application was protected under section 425.16(e)(4), as it constituted a written statement made in connection with an issue of public interest.[3] Further, he asserted Colyear could not establish a probability of success on his claims based on standing, mootness, and ripeness grounds.

Colyear opposed the motion to strike, arguing that Liu’s application to the HOA involved a private matter and thus was not protected conduct and that Colyear’s lawsuit did not arise out of the application, but rather from the “underlying controversy” regarding the proper application of Declaration 150. In his accompanying declaration, Colyear stated he had “confirmed” that two of the trees identified in Liu’s application were located on Colyear’s lot. Specifically, Colyear declared, “I [have] carefully reviewed the photograph or photographs attached to the Liu Application … which … has arrows added to it to point to trees that Liu requested to be cut…. I also walked my lot and the Krauthamers’ lot in the area where both lots meet the Liu property. Based on those observations, I now know for a fact that the trees and plantings that Liu claims in the Liu Application should be cut include two 128*128 trees on my lot.”[4] Colyear also declared his belief that “the Board’s acceptance of the Liu Application and initiation of proceedings for enforcement of the Trees and Plantings Covenant on behalf of Liu … clouds and encumbers the title to the Krauthamers’ lot and to my lot, as well as such other lots and decreases the utility and market value of those lots.” The Krauthamers both submitted declarations stating they “believed” one or two of the trees at issue was on Colyear’s lot.

Colyear attached numerous exhibits in support of his opposition, including Declarations 150 and 150-M, Resolution 220 and its predecessors, and Liu’s application. He also attached his correspondence to the board in 2002, as well as letters from several other homeowners on the same issue. In a letter dated September 4, 2002, addressed to the board and the attorney for the HOA, homeowner Philip Belleville referenced his presentation made at a prior hearing “on the proposed Resolution concerning trees and view,” and then reiterated his position that the proposed resolution should not purport to apply to all properties, including those not encumbered with a tree-trimming provision in the applicable CC&Rs. Belleville noted that, while he does “not have a view to protect,” he was nevertheless “vitally interested” in the issue, including the potential for exposure to expensive litigation against the HOA resulting in increased fees to the members and because “[i]t is very disturbing that the proposed Resolution exceeds the norms for such provisions of similar communities.” Belleville sent another letter in late 2005 objecting to proposed changes in Resolution 181 (a predecessor to 220), noting that the prior resolution had been adopted “after numerous hearings and public participation” and again objecting to language that could “wrongly cloud the property rights of the Members involved” and “lead to more costly and alienating litigation.” Another homeowner wrote a similar letter in 2015.

The trial court granted Liu’s motion. First, the court found Liu had met his burden to establish his conduct was protected under section 425.16(e)(4) because “the issue of view” was one of “general concern” to the homeowners in the community. Liu was “attempting to invoke the view covenants in his particular favor, but they are view covenants that impact, if not all, then a significant number of the people in this community association.” The trial court further found that Colyear’s lawsuit arose out of Liu’s protected conduct, noting that Liu’s application was the reason Colyear filed this action. Finally, the court found that Colyear had not carried his burden to show probability of success on the merits, particularly following the dismissal of Liu’s application.

129*129 Colyear timely appealed the granting of the motion to strike.

DISCUSSION

I. Section 425.16 and Standard of Review

(1) “A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. `”While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right.”‘ [Citations.]” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 [109 Cal.Rptr.3d 329, 230 P.3d 1117] (Simpson).)

The Legislature has declared that “it is in the public interest to encourage continued participation in matters of public significance, and … this participation should not be chilled through abuse of the judicial process.” (§ 425.16, subd. (a).) To this end, the Legislature enacted section 425.16, subdivision (b)(1), which authorizes the filing of a special motion to strike for “[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.” “[T]he Legislature expressly provided that the anti-SLAPP statute `shall be construed broadly.’ (§ 425.16, subd. (a).)” (Simpson, supra, 49 Cal.4th at p. 21.)

(2) Analysis of a motion to strike pursuant to section 425.16 involves a two-step process. (Simpson, supra, 49 Cal.4th at p. 21.) “First, the defendant must make a prima facie showing that the plaintiff’s `cause of action … aris[es] from’ an act by the defendant `in furtherance of the [defendant’s] right of petition or free speech … in connection with a public issue.’ (§ 425.16, subd. (b)(1).) If a defendant meets this threshold showing, the cause of action shall be stricken unless the plaintiff can establish `a probability that the plaintiff will prevail on the claim.’ (Ibid.)” (Simpson, supra, 49 Cal.4th at p. 21, fn. omitted.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to be stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530, 52 P.3d 703], italics omitted.)

(3) We review a trial court’s decision on a special motion to strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 [46 Cal.Rptr.3d 606, 130*130 139 P.3d 2].) In engaging in the two-step process, we consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) “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.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup).)

II. Liu’s Claims Arise From Protected Activity

(4) Under the first prong of a motion to strike under section 425.16, the moving party has the burden of showing that the cause of action arises from an act in furtherance of the right of free speech or petition — i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 [12 Cal.Rptr.3d 54, 87 P.3d 802].) Thus, the moving party must establish both (1) that its act constituted protected activity and (2) the opposing party’s cause of action arose from that protected activity. Colyear challenges Liu’s showing on both of these steps, so we examine each in turn.

A. Protected Activity

First, we must determine whether Liu’s speech was in fact protected conduct. To meet this burden, Liu must demonstrate that his statements fit one of the four categories of conduct set forth in section 425.16, subdivision (e): “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Liu asserts his conduct is protected under section 425.16, subdivision (e)(2) as a statement made in connection with an “official proceeding authorized by law,” or, alternatively, under subdivision (e)(4) as a statement made in connection with “an issue of public interest.” We agree that Liu’s conduct here is protected by section 425.16(e)(4); thus, we need not reach the issue of whether the HOA process is an “official proceeding” under subdivision (e)(2).

(5) Colyear argues that Liu’s application involved a private tree-trimming dispute between two neighbors and therefore does not qualify as a matter of 131*131 “public interest.” “Section 425.16 does not define `an issue of public interest.’ Nevertheless, the statute requires the issue to include attributes that make it one of public, rather than merely private, interest. [Citation.] A few guiding principles can be gleaned from decisional authorities. For example, `public interest’ is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest that can be connected to the specific dispute is not sufficient. [Citation.] One cannot focus on society’s general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 481 [183 Cal.Rptr.3d 867] (Grenier).)

(6) Cases that have found an issue of public interest have done so where “the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].” (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [130 Cal.Rptr.2d 81] (Rivero).)

Within these parameters, “`public interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, `”private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.”‘ (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115 [1 Cal.Rptr.3d 501]….)” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 [37 Cal.Rptr.3d 133] (Ruiz).) “[I]n cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme, supra, 110 Cal.App.4th at p. 119, italics omitted; see also Grenier, supra, 234 Cal.App.4th at p. 482.)

Applying these principles, several courts have found protected conduct in the context of disputes within a homeowners association. In Ruiz, for example, a homeowner sued his homeowners association, alleging letters written by association counsel defamed him. (Ruiz, supra, 134 Cal.App.4th at pp. 1463-1465.) The letters concerned a dispute over the association’s rejection of Ruiz’s building plans, and Ruiz’s complaints that the association was not applying its architectural guidelines evenhandedly. (Ibid.) The court concluded the letters fell within section 425.16(e)(4), noting, (a) the letters 132*132 were written during an ongoing dispute between Ruiz and the association over denial of Ruiz’s plans and the application of the association’s architectural guidelines, and (b) the dispute was of interest to a definable portion of the public, i.e., residents of 523 lots, because they “would be affected by the outcome of those disputes and would have a stake in [association] governance.” (Ruiz, at p. 1468.) Moreover, the attorney’s letters “were part of the ongoing discussion over those disputes and `contribute[d] to the public debate’ on the issues presented by those disputes. [Citation.]” (Id. at p. 1469.)

Similarly, in Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1113 [123 Cal.Rptr.3d 251], the homeowner raised objections with her homeowners association over a change in practices regarding whether individual homeowners or the association had responsibility to pay for maintaining balconies and siding on individual units. The association filed suit against Ivie, seeking declaratory relief in interpreting the association’s governing documents regarding maintenance obligations. (Ibid.) The court found that Ivie’s complaints to the board were a matter of public interest, because her statements concerned issues “that affected all members of the association,” including whether all members would have to pay for maintenance costs assumed by the association. (Id. at p. 1118; see also Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [102 Cal.Rptr.2d 205] [protecting allegedly defamatory statements about the competence of a manager of a homeowners association]; Lee v. Silveira (2016) 6 Cal.App.5th 527, 540 [211 Cal.Rptr.3d 705] [protecting complaints by homeowners association board members against other board members regarding board’s decisionmaking process in approving a large roofing project and a management company contract, as affecting “a broad segment, if not all,” association members]; Grenier, supra, 234 Cal.App.4th at p. 483 [defamatory statements accusing church pastor of theft and misuse of church funds, and of abuse, are of interest to the church’s 500 or more members, and therefore are of “public interest”]; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 [43 Cal.Rptr.2d 350] [concluding that development of a mall, “with potential environmental effects such as increased traffic and impaction on natural drainage, was clearly a matter of public interest”].) By contrast, in Rivero, supra, 105 Cal.App.4th at p. 924, the court rejected anti-SLAPP protection for complaints in a union newsletter alleging a janitorial supervisor mistreated his employees. The court held that the allegedly defamatory statements were not a matter of public interest as they concerned “the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention.” (Ibid.)

(7) Here, the record presents sufficient evidence to sustain Liu’s burden that at the time he submitted his application, there was an ongoing controversy, dispute, or discussion regarding the applicability of tree-trimming covenants to lots not expressly burdened by them, and the HOA’s authority to 133*133 enforce such covenants. While the evidence in the record is somewhat sparse, it is sufficient to show that the issue was an ongoing topic of debate between the board and homeowners, resulting in multiple hearings, letters, and several changes to the board’s policy on the matter starting as early as 2002 and continuing up to the current dispute. In this context, Liu’s application sought to invoke the HOA process at the center of that dispute, as he invoked the process under Resolution 220 to request authority from the board to trim trees on a neighbor’s property that admittedly was not expressly burdened by Declaration 150. Indeed, this is the crux of Colyear’s argument for injecting himself into this dispute — that Liu’s conduct in submitting the application unleashed a process unfair to Colyear and all other homeowners not subject to a tree-trimming covenant and thereby clouded his title with an improper encumbrance. As such, Colyear’s current suggestion that Liu’s application involves nothing more than a private tree-trimming dispute between two neighbors is unavailing.

Colyear does not dispute that the issue of the board’s authority to apply tree-trimming covenants to all lots in the community is a subject of interest to the entire membership of the community, and therefore meets the definition of “public interest” under section 425.16(e)(4). (See, e.g., Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [“Although the allegedly defamatory statements were made in connection with the management of a private homeowners association, they concerned issues of critical importance to a large segment of our local population. `For many Californians, the homeowners association functions as a second municipal government….’ [Citation.]”].) Instead, he argues that the proper focus for this step in the anti-SLAPP inquiry must be much narrower, and that here, Liu’s application only directly involved two homeowners — Liu and the Krauthamers — and was therefore a private dispute rather than an issue of public interest. Colyear further asserts that to the extent hiscomplaint raised the broader issues of enforceability of the tree-trimming covenant and HOA governance, his conduct cannot serve to insulate Liu’s statements. We agree with the principle that we must avoid looking to “society’s general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based.” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570 [92 Cal.Rptr.3d 227]; see also Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [1 Cal.Rptr.3d 390] [cautioning against the “synecdoche theory of public issue in the anti-SLAPP statute,” where “[t]he part [is considered] synonymous with the greater whole”].)

However, we are not persuaded that Liu’s statement here lacks the requisite degree of closeness with the asserted public interest. As discussed, Liu’s application itself invoked the same HOA processes that Colyear (and other community members) sought to challenge. The cases rejecting anti-SLAPP 134*134protection on this basis involve a much greater level of abstraction to a “`”broad and amorphous public interest,”‘” and are thus distinguishable. (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, 172 Cal.App.4th at p. 1570 [rejecting defendants’ attempt to tie their conduct — allegedly reaching out to their former employer’s customers to promote a competitor business — to broader issues of employee mobility and competition]; see also, e.g., Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 [132 Cal.Rptr.2d 191] [“Trimedica’s speech is not about herbal supplements in general. It is commercial speech about the specific properties and efficacy of a particular product.”]; Commonwealth Energy Corp. v. Investor Data Exchange, Inc., supra,110 Cal.App.4th at p. 34 [“hawking an investigatory service is not an economics lecture on the importance of information for efficient markets”].) Accordingly, we conclude Liu has established he made a statement in connection with an issue of public interest within the meaning of section 425.16(e)(4).

B. Claim Arises From Protected Activity

We next turn to Colyear’s claim that, even if Liu’s statement was protected, Colyear’s complaint did not arise out of that statement. We disagree.

(8) “Our Supreme Court has recognized the anti-SLAPP statute should be broadly construed [citation] and that a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort or contract claim when in fact the claim is predicated on protected speech or petitioning activity. [Citation.] Accordingly, we disregard the labeling of the claim [citation] and instead `examine the principal thrust or gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies’…. [Citation.]” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272 [99 Cal.Rptr.3d 805].) We assess the principal thrust by identifying “[t]he allegedly wrongful and injury-causing conduct … that provides the foundation for the claim.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189 [6 Cal.Rptr.3d 494].) “If the core injury-producing conduct upon which the plaintiff’s claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]” (Hylton, supra, 177 Cal.App.4th at p. 1272.) “[T]he critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695], italics omitted.) “In other words, `the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]'” 135*135 (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 [35 Cal.Rptr.3d 31].)

Colyear argues that the dispute here arose from “the question of the applicability of a tree-trimming covenant”; conversely, he argues, “Liu’s application to enforce the covenant against Colyear’s property was simply the trigger for Colyear’s suit to resolve that question.” He further notes that the trial court’s reliance on “but-for causation” in analyzing the issue was therefore in error. To the extent the trial court focused on whether Liu’s application caused Colyear to file a lawsuit, such an analysis would provide an insufficient basis from which to find that Liu had established the lawsuit arose out of his protected conduct. Based on our independent review, however, we conclude that Liu did make the requisite showing.

Liu’s application did not simply “trigger” Colyear’s lawsuit, as Colyear claims. Rather, the gravamen of Colyear’s claims against Liu was the allegation that by submitting an application to the HOA concerning property unencumbered by Declaration 150, Liu invoked an invalid HOA process and clouded Colyear’s title. As such, the only injury-producing conduct Colyear alleges Liu committed was Liu’s petitioning act.

These circumstances are factually distinct from cases, including those cited by Colyear, in which the defendant’s protected speech was ancillary to the heart of the plaintiff’s claims. In City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 71, 72 for example, owners of mobilehome parks brought a declaratory relief action against the city in federal court seeking a judicial determination that the city’s mobilehome park rent-control ordinance constituted an unconstitutional taking. In response, the city sued the park owners in state court, also requesting a declaration regarding the constitutionality and enforceability of the rent-control ordinance. (Id. at p. 72.) The city conceded that its state lawsuit was triggered by the federal action and was an attempt to “gain a more favorable forum” in which to litigate the issue. (Id. at p. 73.) As the Supreme Court explained, “the mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (Id. at pp. 76-77.) Instead, because the “fundamental basis” for bothactions was the “same underlying controversy respecting [the rent control] ordinance,” the city’s lawsuit “therefore was not one arising from [the park owners’] federal suit” and “was not subject to a special motion to strike.” (Id. at p. 80; see also, e.g., Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 729 [170 Cal.Rptr.3d 453] [homeowners association’s claim against board members arose from “the act of spending money in violation of [the board members’] fiduciary duties,” not from the vote that precipitated such expenditure]; McConnell v. Innovative Artists Talent and Literary Agency, Inc.(2009) 175 Cal.App.4th 169, 176-177 [96 Cal.Rptr.3d 1] [talent 136*136 agents’ claims against former employer for retaliation and wrongful termination were based on employer’s course of conduct preventing the agents from performing their work, not the letter that communicated the purported job modifications]; Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 189 [holding that “the gravamen of Plaintiffs’ second cause of action, alleging the Product was not merchantable because it contained dangerous properties and ingredients that caused injury, is based on the nature and effects of the Product itself, not the marketing efforts undertaken by” the defendant].) Here, by contrast, Liu’s protected conduct — his application to the HOA — served as the foundation for Colyear’s claims against him.

In sum, we conclude that Liu met his burden on the first prong of the anti-SLAPP motion to strike. We therefore turn to the second prong, i.e., whether Colyear met his burden to demonstrate a probability of prevailing on his claims against Liu.

III. Colyear Cannot Demonstrate a Probability of Prevailing Against Liu

(9) Once a defendant satisfies the first prong of the anti-SLAPP analysis, “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 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 [205 Cal.Rptr.3d 475, 376 P.3d 604].) “In making this assessment it is `the court’s responsibility … to accept as true the evidence favorable to the plaintiff….’ [Citation.] The plaintiff need only establish that his or her claim has `minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291.)

(10) Colyear contends he has shown his likelihood of success on his quiet title claim against Liu with evidence that (1) he has title and (2) Liu made a claim adverse to that title by invoking the tree-trimming covenant against Colyear’s property. However, the trial court found that Colyear’s quiet title claim against Liu was mooted by the withdrawal of Liu’s application. We agree. Assuming Liu’s application implicated Colyear’s property when filed, Liu withdrew his application before any action was taken, leaving no pending challenges against Colyear’s property. Thus, at the time Colyear filed his FAC, there was no “adverse claim” by Liu against Colyear’s property (§§ 760.020, 761.020 [elements to quiet title claim]), and no effective relief the court could grant against Liu. (See, e.g., Giles v. Horn(2002) 100 Cal.App.4th 206, 227 [123 Cal.Rptr.2d 735] [court “`cannot render opinions “`… upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before 137*137 it'”‘”]; Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453 [246 P.2d 688] [“`although a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court'”].)[5] In light of these findings, we need not reach the parties’ alternate arguments regarding ripeness, standing, or the admissibility of Colyear’s statements regarding ownership of the trees.

As such, we conclude that Colyear has not shown a probability of success on the merits of his quiet title claim.

DISPOSITION

The order granting Liu’s motion to strike pursuant to section 425.16 is affirmed. Liu is awarded his costs on appeal.

Epstein, P. J., and Manella, J., concurred.

[1] SLAPP is an acronym for strategic lawsuit against public participation. All further statutory references are to the Code of Civil Procedure unless stated otherwise.

[2] Whether other, more general language in Declaration 150-M could be applied to confer the same authority, as Liu seems to suggest, is not at issue in this appeal.

[3] Liu’s motion also stated in passing that his conduct should be protected under section 425.16(e)(2) as a statement “made in connection with an issue under consideration or review” by an “official proceeding authorized by law,” but offered no other argument or citation on this point.

[4] The trial court subsequently granted Liu’s objections to multiple paragraphs in Colyear’s declaration, including these statements regarding the placement of two trees. During oral argument, the court noted Colyear’s declaration provided no foundation for how Colyear “knew where the boundary line” lay between his and the Krauthamers’ property and that Colyear’s statements were conclusory.

[5] Colyear argues that the trial court should have considered his claim because Liu’s conduct was capable of repetition, yet could continue to evade the courts’ review. Colyear has raised this argument for the first time on appeal; it is therefore forfeited. (See, e.g., Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1787 [26 Cal.Rptr.2d 812].) We are not persuaded by Colyear’s suggestion that we may review this issue as a “`”pure question of law which is presented by undisputed facts.” [Citation.]'” (Ibid.)

Keywords: Governing Documents, Enforcement

Aristea Hupp, Plaintiff and Appellant, v. Solera Oak Valley Greens Association et al., Defendants and Respondents.

Summary by Mary M. Howell, Esq.:

Judgment debtor was not entitled to equitable redemption of his real property sold at an execution sale to satisfy a default judgment against him by homeowners association because the third party purchaser was not guilty of unfairness, did not manipulate the system or take undue advantage, and the record showed that the property was not sold for a grossly inadequate price.

**End Summary**

12 Cal.App.5th 1300 (2017)

No. E065766.Court of Appeals of California, Fourth District, Division Two.

June 23, 2017.1303*1303 APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIC1512779, John D. Molloy, Judge. Affirmed in part; reversed in part with directions.

Aristea Hupp, in pro. per., for Plaintiff and Appellant.

Richardson Harman Ober, Kelly G. Richardson, Theodore H. Dokko, Jonathan R. Davis; Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham, Stephanie J. Tanada and Amy Wong for Defendants and Respondents.

OPINION

CODRINGTON, J. —

I

INTRODUCTION

Plaintiff Aristea Hupp (Aristea) appeals judgment entered after the trial court granted defendants Solera Oak Valley Greens Association and City of Beaumont Animal Control Officer Jack Huntsman’s[1] ex parte application to dismiss Aristea’s first amended complaint (FAC) under the vexatious litigant provision, Code of Civil Procedure section 391.7.[2] Aristea contends the trial court’s order granting Solera’s ex parte application to dismiss deprived her of her due process rights to notice and an opportunity to be heard. Aristea also argues Solera waived its vexatious litigant defense by not raising it in its first 1304*1304 responsive pleading. In addition, Aristea argues that under the Davis-Stirling Common Interest Development Act (Davis-Stirling Act),[3] she is authorized to seek recovery of damages sustained by her son, Paul Hupp (Paul),[4] from violations of Solera’s covenants, conditions and restrictions (CC&Rs).

Before oral argument, this court requested the parties to provide supplemental briefing addressing the issue of whether the vexatious litigant statutes, particularly section 391.7, can be applied to a complaint brought by a party who has not been declared a vexatious litigant, such as Aristea. As requested, both Aristea and Solera provided this court with supplemental briefing.[5]

We affirm the judgment of dismissal as to all claims alleged in the FAC which were brought by or for the benefit of Paul, on the ground he has been declared a vexatious litigant. Because Aristea has not been declared a vexatious litigant, the judgment of dismissal is reversed as to all claims in the FAC that are solely personal to Aristea. The trial court is directed on remand to order stricken from the FAC all allegations mentioning Paul and all claims benefiting or seeking recovery on behalf of Paul.

II

FACTS AND PROCEDURAL BACKGROUND

On January 7, 2014, in an unrelated case, the Riverside County Superior Court entered an order declaring Paul Hupp a vexatious litigant under section 391. The court further ordered that Paul is required to “acquire a prefiling order from the supervising judge with each and every future filing of any complaint or petition as an In Pro Per Plaintiff, against any party, in any Court in California, upon a showing of evidence supporting claims as the judge may require.”

Paul and Aristea’s Complaint Filed in the Federal District Court

In August 2015, Aristea and her son, Paul (the Hupps), filed a complaint, in propria persona, in the federal district court against Solera (case 1305*1305 No. EDCV15-01693-VAP-SP). Defendant Solera Oak Valley Greens Association oversees a planned, gated development in the City of Beaumont (the Solera property). The association is a California corporation that operates through a board of directors on behalf of its shareholders, which include all Solera property owners.

The Hupps alleged in their federal complaint the following facts. The Solera property has five entrances and six entry gates. Five of the gates are for residents and one entry gate is for guests. The resident gates are activated by remote control. The guest entry gate is not controlled by remote control and may require waiting in line for entry onto the Solera premises. Aristea owns two Solera properties.

At the end of 2014, Solera adopted a new rule added to Solera’s CC&Rs, which required pit bulls to be muzzled when walked on the common areas of the Solera property. In November 2014, the Hupps notified Solera that they objected to the muzzle rule because the rule incorrectly stated pit bulls are a dog breed designated by the Centers for Disease Control and Prevention as “the most `dangerous’ dog” and therefore must be muzzled when on the Solera streets or common areas. The Hupps further asserted the muzzle rule failed to state how to determine if a dog was a pit bull, who would make that determination, and how the rule would be applied.

The Hupps’ federal complaint alleged that in December 2014, the Hupps, Solera board members, and management company employees met regarding enforcement of the muzzle rule against the Hupps. The Hupps stated Solera could not impose any rule, such as the muzzle rule, that singled out dogs by breed. Thereafter the Hupps continued to walk their dogs on the Solera property without a muzzle. Solera notified the Hupps that they were violating the muzzle rule. The Hupps responded by letter, objecting to the muzzle rule. In April 2015, Solera imposed a $200 fine on Aristea for walking her dogs in violation of the muzzle rule. The Hupps informed Solera they objected to the fine and refused to pay it. Two hours before a discipline hearing on August 5, 2015, the Hupps e-mailed a letter to three Solera board members, stating that the muzzle rule was unlawful and that the Hupps were going to take legal action.

Five days after the hearing, Solera deactivated the Hupps’ entrance gate remote controls, preventing the Hupps from entering the Solera property through the five gates operated by remote control. The Hupps refer to this action by Solera as the “lock out.” As a consequence of the lock out, the Hupps were required to enter the Solera property through the gate used by guests. This required the Hupps to wait in line to enter.

1306*1306 The Hupps’ federal complaint included causes of action for violation of their civil rights and due process rights under the constitution and the Civil Rights Act of 1964 (42 U.S.C. § 1983). The Hupps requested declaratory and injunctive relief regarding the “lock out” and against the “muzzle rule.” The complaint also included causes of action for defamation of the Hupps and their dogs, and intentional infliction of emotional distress.

In October 2015, the federal district court dismissed the Hupps’ complaint without leave to amend on the grounds the Hupps failed to state a federal claim and the federal court would not exercise supplemental jurisdiction over the Hupps’ state law claims.

Aristea’s Complaint Filed in the Riverside Superior Court

Shortly after the dismissal, Aristea filed, in propria persona, a complaint in the instant case (Complaint) in the Riverside County Superior Court. Aristea remained in propria persona throughout the remainder of the trial court proceedings and during the instant appeal. The facts are identical to those alleged in the Hupps’ federal court complaint, which was dismissed. In addition, Aristea alleged that in March 2014, a Solera resident who lived across the street from the Hupps, installed surveillance cameras pointed at the Hupps’ residence. This allegedly violated the Solera CC&Rs, and Solera failed to enforce the CC&Rs in this regard. The Hupps further alleged that on February 10, 2014, Solera management company employee, Timothy Taylor, followed Paul around the Solera property and filmed him as he was walking his two dogs. Another Solera management company employee, Samuel Rojas, on 12 occasions, beginning on March 24, 2015, through August 31, 2015, also followed Paul around the Solera property and filmed him walking his dogs. On July 25, 2015, the Hupps requested to review all of Solera’s contracts and various financial information. Solera denied the Hupps’ request.

The Hupps’ Complaint included causes of action for declaratory and injunctive relief regarding the lock out and muzzle act, private nuisance, violation of the Davis-Stirling Act, invasion of privacy, intentional infliction of emotional distress, and defamation. Although Aristea was the only named plaintiff in the Complaint caption, both Paul and Aristea were named as plaintiffs throughout the Complaint and in the prayer for relief.

On November 24, 2015, Solera, specially appearing, filed a motion to quash service of summons and Complaint (motion to quash) on the ground service of the Complaint on Solera was improper in part because Paul, who was a party to the action, served the Complaint on Solera. Solera argued that, although Paul was not listed in the caption of the summons or Complaint, the Complaint allegations indicated he was a party to the action. Solera asserted 1307*1307 in its motion to quash that “[t]here is no escaping the fact that Paul Hupp is a Plaintiff in this lawsuit, despite his efforts to evade the Court’s vexatious litigant order.” On December 24, 2015, the trial court granted Solera’s motion to quash and granted the Hupps leave to amend the Complaint.

First Amended Complaint

On January 12, 2016, Aristea filed a first amended complaint (FAC), the operative complaint in this matter. Allegations in the original Complaint referring to Paul as a plaintiff were deleted. As with the original Complaint, only Aristea was named as a plaintiff in the caption. Instead of alleging in the first paragraph of the Complaint that both Aristea and Paul were in propria persona plaintiffs, the FAC alleges only Aristea is a plaintiff, suing in propria persona. However, most of the allegations in the FAC remained the same as those in the original Complaint, with minimal changes and with the addition of new claims alleging Davis-Stirling Act violations. The FAC includes numerous references to Paul and “plaintiffs.” The FAC also includes defamation and private nuisance causes of action in which Paul, rather than Aristea, is the subject of the claims.

Notice of Vexatious Litigant Order

Specially appearing on January 26, 2016, Solera filed in the instant case a notice of the January 7, 2014, vexatious litigant order pursuant to section 391.7(c). The notice was served on the Hupps by overnight mail on January 26, 2016. It stated: “PLEASE TAKE NOTICE that the above-captioned lawsuit by Plaintiffs Aristea and Paul Hupp[] was filed in violation of California’s vexatious litigant statutes. Specifically, Paul Hupp was deemed a vexatious litigant by the Riverside Superior Court on or about January 7, 2014, in the matter of Hupp v. Judith L. Beyl, et al.,Riverside Superior Court Case No. RIC1216945. (RJN, Exhibit A). Despite such order, Plaintiff Paul Hupp has filed the Complaint and First Amended Complaint in the above-captioned matter. Pursuant to Code of Civil Procedure § 391.7(c), the filing of this notice shall automatically stay this litigation. (CCP §391.7(c)). The litigation must then be automatically dismissed unless the Plaintiffs, within ten (10) days of the filing of this notice, obtain an order from the presiding justice or presiding judge permitting the filing of the litigation. (Id.)”

In a footnote, the notice states that “Plaintiff Paul Hupp is listed in the body of the Complaint as a `Plaintiff,’ and multiple causes of action relate only to damages allegedly suffered by Plaintiff Paul Hupp. However, Paul Hupp is not named in the Caption of the Complaint. Only Plaintiff Aristea Hupp is named in the Caption.”

1308*1308 Ex Parte Application for Dismissal of FAC

On February 9, 2016, Solera filed in the trial court an ex parte application for dismissal of the FAC under section 391.7(c) or, alternatively, for a stay of all litigation while Paul attempted to obtain an order permitting him to file the FAC. The application was served on both Paul and Aristea by e-mails during the morning of February 9, 2016. Solera asserted in its ex parte application that the trial court had previously declared Paul a vexatious litigant, and the FAC contained essentially the same allegations as the dismissed Complaint. Solera argued that the FAC should be dismissed because Paul, for all intents and purposes, was a plaintiff in the FAC. Because he had been declared a vexatious litigant and the Hupps had failed to obtain permission to file the FAC, the FAC must be dismissed under section 391.7(c).

Attached to Solera’s ex parte application for dismissal was a declaration by Solera’s attorney, Theodore Dokko, stating that more than 10 days had passed since the Hupps were served with the notice of the January 7, 2014 vexatious litigant order, and Paul had not obtained approval from the presiding judge to file the FAC. During the morning of February 9, 2016, Dokko called Aristea and Paul, and left voicemail messages notifying them that Solera would be seeking an order of dismissal of the FAC or, alternatively, requesting a stay of all litigation.

Dokko stated in his supporting declaration that he had also sent both Paul and Aristea a notice by e-mail that same morning. The e-mails provided notice of the date, time, and place for the presentation of the application, and the nature of the relief to be requested. Copies of the e-mails were attached to Dokko’s declaration. The e-mails sent on February 9, 2016, informed Paul and Aristea that a hearing on Solera’s ex parte application for dismissal of the FAC under section 391.7 would take place on February 10, 2016, at 8:30 a.m. The address of the court and department were also provided. Dokko stated he did not know whether Aristea or Paul intended to attend the ex parte hearing or oppose the ex parte application for dismissal.

In support of the ex parte application for dismissal, Solera filed a request for judicial notice, which included copies of (1) the January 7, 2014 vexatious litigant order, (2) the Hupps’ federal district court complaint filed on August 21, 2015, (3) the October 8, 2015 federal district court order dismissing the Hupps’ complaint without leave to amend, (4) the Hupps’ Complaint filed in the Riverside County Superior Court on October 23, 2015, (5) Solera’s motion to quash filed on November 24, 2015, (6) the notice of ruling granting Solera’s motion to quash on December 24, 2015, and (7) the Hupps’ FAC filed on January 12, 2016.

1309*1309 On February 10, 2016, the trial court heard and granted Solera’s ex parte application for dismissal of the FAC. The Hupps did not appear at the hearing or file opposition. A week later, Aristea filed a motion for reconsideration of the order granting Solera’s ex parte application for dismissal. The motion was calendared for April 4, 2016. Aristea stated in her supporting declaration the following facts: she did not receive any notice of the vexatious litigant order or the ex parte application to dismiss; she had not been declared a vexatious litigant; she had personally called the court clerk around 8:00 p.m. on February 9, 2016, and left a voicemail message stating she opposed Solera’s ex parte application to dismiss; and she also called the court clerk on February 10, 2016, around 8:00 a.m., stating that she opposed Solera’s ex parte application. The court clerk purportedly told Aristea she would tell the judge this.

On March 1, 2016, before the trial court heard Aristea’s motion for reconsideration, the court entered a judgment of dismissal of the action. At the hearing on Aristea’s motion for reconsideration on April 4, 2016, the trial court denied the motion on the ground judgment had already been entered. Therefore the court did not have jurisdiction to rule on the motion for reconsideration under APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181 [90 Cal.Rptr.2d 171]. The court also denied the motion on the ground there were no new or different facts (§ 1008, subd. (a)). Paul appeared at the hearing on his own behalf. He also attempted to appear on behalf of Aristea, who was not present, but was not permitted to do so because he was not licensed to practice law in California. After the court denied her motion for reconsideration, Aristea filed a notice of appeal of the March 1, 2016 judgment of dismissal.

III

EX PARTE APPLICATION FOR DISMISSAL

Aristea’s sole contention on appeal is that the order granting Solera’s ex parte application for dismissal under section 391.7 violated her due process rights to proper notice and a meaningful opportunity to be heard before the court dismissed her action.

A. Standard of Review

The trial court’s order granting Solera’s ex parte application for dismissal is reviewed for an abuse of discretion. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194 [58 Cal.Rptr.3d 466] (Forrest).) “Under that standard, we determine `whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.’ [Citation.] We 1310*1310 presume an order is correct and imply findings necessary to support the judgment. [Citation.] An abuse of discretion must be clearly established to merit reversal on appeal. [Citation.] To the degree resolution of the appeal requires statutory interpretation, we undertake that review de novo. [Citation.]” (Ibid.)

B. Forfeiture

(1) Aristea argues Solera waived its vexatious litigant defense by not raising it when Solera first appeared in the action. Aristea argues Solera failed to raise the vexatious litigant objection in Solera’s request for judicial notice filed in support of Solera’s motion to quash, and also did not raise it in the notice of ruling on the motion. We find no merit to this proposition. There was no such waiver or forfeiture.[6] There is no requirement that the notice of vexatious litigant order must be filed when the defendant first appears in the action. Section 391.7(c) states: “If the clerk mistakenly files the litigation without the [prefiling] order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation.” This provision indicates there is no time limitation on when the matter must be raised.

In addition, there was no forfeiture because Solera’s initial appearance, when Solera filed its motion to quash the summons and Complaint, was a special appearance. The motion to quash was granted with leave to amend the Complaint. Two weeks after Aristea filed the FAC, Solera, specially appearing, filed the notice of vexatious litigant order. Under these circumstances, the filing of Solera’s request for judicial notice in support of the motion to quash and the notice of ruling on the motion did not forfeit or waive Solera’s vexatious litigant objection to the FAC.

C. Dismissal of the FAC Under Section 391.7(c)

Aristea’s FAC was dismissed under the vexatious litigant statutes because the FAC sought relief on behalf of Paul, who had been declared a vexatious litigant under section 391. The trial court apparently concluded that the FAC was an attempt by Paul to circumvent the vexatious litigant statutes which prohibited him from filing the complaint in propria persona.

1311*1311 1. Vexatious Litigant Law

(2) Vexatious litigant statutes, such as section 391.7, were enacted “to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008 [64 Cal.Rptr.2d 679]; accord, Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220 [120 Cal.Rptr.2d 879] (Bravo).) These persistent and obsessive litigants’ abuse of the legal system “not only wastes court time and resources but also prejudices other parties waiting their turn before the courts.” (In re Bittaker, at p. 1008; see Bravo,at p. 221.) The Legislature enacted sections 391.1 through 391.6 in 1963, to moderate a vexatious litigant’s tendency to engage in meritless litigation. (Bravo, at p. 221.) Under these sections a defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines there is not a reasonable probability the plaintiff will prevail. (§§ 391.1, 391.4; Bravo, at p. 221.)

In 1990, the Legislature enacted section 391.7, which provides the courts “with an additional means to counter misuse of the system by vexatious litigants. Section 391.7 `operates beyond the pending case’ and authorizes a court to enter a `prefiling order’ that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge. [Citation.] The presiding judge may also condition the filing of the litigation upon furnishing security as provided in section 391.3. (§ 391.7, subd. (b).)” (Bravo, supra, 99 Cal.App.4th at p. 221.)

(3) Section 391.7(c) provides in relevant part that “[t]he clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing.” If the court clerk mistakenly files litigation submitted by a vexatious litigant without the order, as in the instant case, any party may file a notice that the plaintiff is a vexatious litigant. (§ 391.7(c); Forrest, supra, 150 Cal.App.4th at p. 195.) This automatically stays the litigation. The vexatious litigant must obtain an order of permission to file the complaint within 10 days of the filing of that notice. Otherwise the litigation is automatically dismissed. (Ibid.) Where a plaintiff has already been declared vexatious, a defendant moving under section 391.7 need not again establish the plaintiff’s status. (Bravo, supra, 99 Cal.App.4th at p. 225.) Section 391.7 has been broadly construed. (Forrest, at p. 195.)

2. Due Process Right To Notice and an Opportunity To Be Heard

Aristea contends her due process rights were violated by not receiving proper notice of the ex parte application to dismiss or a copy of the moving 1312*1312 papers before the hearing. She argues she was entitled to 16 court days’ notice of the hearing and a copy of the moving papers under section 1005, subdivision (b). Aristea asserts that, as a consequence, she did not have an opportunity to file a meaningful response or attend oral argument on such short notice.

Section 1005, subdivision (b), provides in relevant part: “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days…. [¶] The court, or a judge thereof, may prescribe a shorter time.” (Italics added.)

(4) If a plaintiff is a vexatious litigant who has been served a notice of vexatious litigant order under section 391.7(c), the section 1005 notice requirements are superseded by section 391.7(c), which provides that “[t]he litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation as set forth in subdivision (b).” (§ 391.7(c), italics added.)

(5) It is well established that, even though the vexatious litigant statute, section 391.7, allows for automatic dismissal without compliance with section 1005 notice requirements, section 391.7 does not deny the vexatious litigant access to the courts. The vexatious litigant law “operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs. [Citation.] Vexatious litigant statutes are constitutional and do not deprive a litigant of due process of law.” (Bravo, supra, 99 Cal.App.4th at pp. 221-222, italics added.)

Here, Solera served the Hupps on January 25, 2016, with a notice of vexatious litigant order, indicating that the trial court mistakenly permitted the filing of the FAC, in violation of the January 7, 2014 order declaring Paul a vexatious litigant. Neither Paul, a vexatious litigant, nor Aristea, who had not been deemed a vexatious litigant, obtained an order of permission to file the Complaint or FAC. After the 10-day period ran, Solera filed its ex parte application to dismiss. As discussed below, dismissal of the FAC was proper under section 391.7 as to Paul, but not as to Aristea, who had not been declared a vexatious litigant.

3. Dismissal Founded on Paul’s Vexatious Litigant Status

When the FAC was filed, Paul was a vexatious litigant subject to the prefiling requirements under section 391.7. Therefore Paul was prohibited 1313*1313 from filing any litigation unless he first secured permission to file from the presiding judge. (Forrest, supra, 150 Cal.App.4th at p. 195; § 391.7(c).) The record on appeal shows that Paul failed to secure permission to file the Complaint or FAC on his own behalf. The Complaint named only Aristea as a plaintiff in the caption, although the body of the Complaint contained numerous allegations indicating Paul was a plaintiff seeking recovery in the Complaint. The FAC omitted some of the allegations regarding Paul but still included numerous facts and claims involving Paul. Paul did not respond to Solera’s notice of vexatious litigant order filed in the instant case and did not obtain prefiling permission to allege his claims in the FAC. He also did not oppose dismissal of the FAC or appear at the hearing on Solera’s ex parte application to dismiss the FAC. Therefore Paul forfeited any objections to dismissal of the FAC as to any claims alleged on his behalf, and Paul is not a party to this appeal.

Aristea argues on appeal, however, that she can assert claims on Paul’s behalf in this action under the Davis-Stirling Act. We disagree. She does not have standing to assert Paul’s claims. Furthermore, Paul cannot circumvent the vexatious litigant statutes by having his mother file a complaint (the FAC) seeking recovery on his behalf. Because Paul was declared a vexatious litigant, it was proper for the trial court to dismiss under section 391.7(c) all claims made by or on behalf of Paul in the FAC, regardless of whether he was named a plaintiff in the FAC caption.

4. Dismissal of Aristea’s FAC Claims

Whether the trial court had authority under the vexatious litigant statutes to dismiss FAC claims personal to Aristea appears to be an issue of first impression. There does not appear to be any case law directly on point. There are several cases, such as In re Shieh (1993) 17 Cal.App.4th 1154 [21 Cal.Rptr.2d 886] (Shieh), Say & Say, Inc. v. Ebershoff (1993) 20 Cal.App.4th 1759 [25 Cal.Rptr.2d 703] (Say & Say), and In re Kinney (2011) 201 Cal.App.4th 951 [135 Cal.Rptr.3d 471], which extend the vexatious litigant law to vexatious litigants who are attorneys or to a corporation that serves as the alter ego of a vexatious litigant. These cases are not dispositive here. Aristea is not an attorney, she is not represented by an attorney, she is not a vexatious litigant or the alter ego of a corporation that is a vexatious litigant, and she is asserting personal claims in her own name, separate from those of Paul. Even though Paul likely was the instigator of the instant litigation and may have prepared Aristea’s pleadings in this case, there is no direct evidence of this before this court and there does not appear to be any legal authority supporting dismissal of Aristea’s separate claims alleged in the FAC under section 391.7, when to date she has not been declared a vexatious litigant.

1314*1314 In Shieh, supra, 17 Cal.App.4th 1154, the trial court held a hearing on an order to show cause why the plaintiff, Liang-Houh Shieh, should not be declared a vexatious litigant. Virtually every lawsuit Shieh filed involved attempts to relitigate his claims against various lawyers and law firms. The trial court declared Shieh a vexatious litigant under section 391, subdivision (b)(4), and issued a prefiling order under section 391.7, subdivision (a), prohibiting him from filing any new litigation in propria persona or through an attorney without first obtaining leave from the presiding judge. (Shieh, at pp. 1167-1168.)

Normally, under section 391.7, a vexatious litigant is required to obtain a prefiling order only if the litigant is in propria persona. The Shieh court, however, concluded the case presented unusual circumstances warranting requiring Shieh also to obtain a prefiling order when represented by an attorney. This was because Shieh was an attorney and the trial court found it was clear he, rather than his attorneys, had drafted all of the groundless, frivolous pleadings and briefs. (Shieh, supra, 17 Cal.App.4th at p. 1167.)

The Shieh court further concluded that previous prefiling orders that permitted Shieh to file litigation if he was represented by an attorney “had no discernible effect on Shieh’s out-of-control litigation.” (Shieh, supra, 17 Cal.App.4th at p. 1167.) The Shieh court concluded this was because, “[i]n short, it is clear that Shieh does not engage attorneys as neutral assessors of his claims, bound by ethical considerations not to pursue unmeritorious or frivolous matters on behalf of a prospective client. [Citation.] Rather, these attorneys who ostensibly `represent’ Shieh serve as mere puppets. Based on these facts, we conclude a prefiling order limited to Shieh’s in propria persona activities would be wholly ineffective as a means of curbing his out-of-control behavior.” (Ibid.)

Shieh, supra, 17 Cal.App.4th 1154, involved entirely different circumstances than those in the instant case. Aristea is not challenging an order declaring her or Paul a vexatious litigant. In addition, Aristea had never been declared a vexatious litigant and the record does not show that she had a history of bringing frivolous claims while represented by attorneys acting as “mere puppets.” Here, Paul had already been declared a vexatious litigant. It is undisputed that he could not allege any claims or seek any relief in the FAC, because he did not obtain a prefiling order allowing him to do so.

Aristea may very well have been serving as a “mere puppet” or conduit for Paul to allege his own claims against the defendants. As to those FAC claims, dismissal was proper. But dismissal of Arista’s separate, personal claims under the vexatious litigant statutes was not proper, regardless of whether Paul drafted the Complaint and FAC on her behalf. Aristea had not been 1315*1315 declared a vexatious litigant and there was no vexatious litigant order requiring a prefiling order whenever Aristea was a coplaintiff with Paul.

Shortly after the court decided Shieh, supra, 17 Cal.App.4th 1154, the court in Say & Say, supra, 20 Cal.App.4th 1759, held that Say & Say, Inc. (Say Inc.),[7]incorporated by Shieh’s wife, was a vexatious litigant subject to the vexatious litigant law. (Say & Say, at p. 1770.) On two occasions, courts previously had determined that Say Inc. and Shieh were the alter egos of one another. In Shieh,the court likewise noted that Say Inc. was a corporation owned and controlled solely by Shieh. (Id. at p. 1766.)

After the trial court declared Shieh a vexatious litigant, Shieh added Say Inc. as a plaintiff in Say & Say and in his numerous other lawsuits. The trial court in Say & Say dismissed the case only as to Shieh because he had not posted security as a vexatious litigant under section 391.4. Both Shieh and Say Inc. appealed, even though the complaint was not dismissed as to Say Inc. On appeal, the court concluded Shieh failed to demonstrate the case had merit, denied Shieh permission to proceed with his appeal, and dismissed the appeal as to Shieh, but not as to Say Inc. (Say & Say, supra, 20 Cal.App.4th at p. 1762.)

The appellate court thereafter issued an order to show cause as to whether Say Inc. was a vexatious litigant. In making the determination on appeal, the court in Say & Say noted that section 391, subdivision (b), defines a vexatious litigant as a person who has in the past appeared in propria persona. Say Inc. is a corporation, which generally cannot appear in litigation in propria persona. Say Inc. did not appear without counsel in any litigation. (Say & Say, supra, 20 Cal.App.4th at p. 1767.) Nevertheless, the court in Say & Say concluded that “when well-established principles concerning disregarding the corporate fiction and utilization of a corporation to avoid a statute are applied to this case, we conclude Say & Say, Inc., is subject to the vexatious litigant law. Further, we find as a factual matter it would be inequitable to allow the corporate fiction to permit Say & Say, Inc., to avoid the effect of section 391 et seq.” (Ibid.)

In declaring Say Inc. a vexatious litigant, the appellate court in Say & Say found that there was “no evidence of any separateness between the conduct of Mr. Shieh and the manner in which he conducted his activities … and those of the corporation.” (Say & Say, supra, 20 Cal.App.4th at p. 1769.) Further, after the trial court determined that Shieh was a vexatious litigant, Shieh and Say Inc. jointly filed “12 separate pieces of litigation” in state and 1316*1316 federal trial courts, and jointly filed 11 appeals. (Id. at p. 1769.) The court in Say & Say found that “the only purpose for which this has been done is to evade the effects of the vexatious litigant law.” (Ibid.) Therefore “[i]t would be inequitable to allow Mr. Shieh to utilize Say & Say, Inc., to continue with his misuse of the litigation process directed at members of the legal community. Accordingly, because we conclude that Say & Say, Inc., has been used to circumvent section 391 et seq., compelling interests in equity warrant the conclusion that Say & Say, Inc., is subject to the vexatious litigant law.” (Id. at pp. 1769-1770.)

While the court in Say & Say, supra, 20 Cal.App.4th 1759 found there were compelling interests in equity warranting subjecting Say Inc. to the vexatious litigant law, such equity interests do not apply here. It does appear likely that Paul is using Aristea to circumvent the vexatious litigant law and assert his own litigious interests. Nevertheless, the appropriate procedure for combating such abuse is for the trial court to declare not only Paul, but also Aristea a vexatious litigant in accordance with the vexatious litigant statutes. Unlike in Say & Say, the record on appeal here does not show this occurred. The notice of vexatious litigant served on January 26, 2016, seeking automatic dismissal of the FAC, was based solely on Paul having been declared a vexatious litigant.

Furthermore, in Say & Say, supra, 20 Cal.App.4th 1759, the court found Say Inc. to be a vexatious litigant because Say Inc. and Shieh were one and the same entity. There was no separateness or differentiation between Say Inc. and Shieh. This is not the case as to Aristea and Paul. They are separate individuals, with potentially separate interests and rights. Therefore, this court cannot at this stage of the proceedings, where Aristea has not been declared a vexatious litigant, uphold dismissal of her separate claims alleged in the FAC based on Paul having been declared a vexatious litigant.

(6) We recognize that “[a] court has inherent power, upon a sufficient factual showing, to dismiss an action `”shown to be sham, fictitious or without merit in order to prevent abuse of the judicial process.”‘ [Citations.] That power, exercised after a hearing and upon sufficient factual showing, is a different power than the virtually ministerial power granted by section 391.7, subdivision (c).” (Flores v. Georgeson (2011) 191 Cal.App.4th 881, 887 [119 Cal.Rptr.3d 808].) Here, the dismissal of the FAC was based on the vexatious litigant statutes, which allow for automatic dismissal or shortened, ex parte notice of dismissal, but only as to claims brought by a vexatious litigant. Dismissal based on the court’s inherent power to dismiss a sham, fictitious or meritless action requires proper notice of such proceedings under section 1005, subdivision (b), which was not provided in the instant action as to dismissal of Aristea’s claims. (Andre v. General Dynamics, Inc. (1974) 43 1317*1317 Cal.App.3d 839, 846-847 [118 Cal.Rptr. 95]; Harris v. Board of Education (1957) 152 Cal.App.2d 677, 683 [313 P.2d 212] [“where dismissal rests in the discretion of the court the plaintiff should be given notice of the motion to dismiss and an opportunity to be heard thereon.”]; § 583.150.)

There does not appear to be any case law that addresses the circumstances in the instant case, in which one of two individuals is a vexatious litigant who appears to be instigating and perpetuating litigation through the other individual, who is also asserting her own, separate claims. Here, the vexatious litigant, Paul, is not a licensed attorney representing Aristea but appears to be pursuing his own litigious agenda by drafting and filing Aristea’s pleadings. The instant case is closest factually to In re Kinney, supra, 201 Cal.App.4th 951, in which the plaintiff, Charles Kinney, an attorney, filed numerous lawsuits, resulting in the trial court declaring him a vexatious litigant under section 391, subdivision (b). Kinney attempted to evade the prefiling order by enlisting Kimberly Jean Kempton to stand in his stead as a plaintiff and appellant.

The court in Kinney concluded Kinney was “using Kempton as his proxy or puppet in order to continue his career as a vexatious litigant.” (In re Kinney, supra, 201 Cal.App.4th at pp. 953-954.) The incessant litigation involved property owned by both Kinney and Kempton. Originally they were both named as plaintiffs. After Kinney was declared a vexatious litigant, Kempton became the sole plaintiff, and Kinney was named as her attorney. During the instant appeal, the Kinney court issued an order to show cause why Kinney should not be declared a vexatious litigant while acting as Kempton’s attorney.

In deciding the matter, the Kinney court found that “[i]n this instance, the individual who was declared a vexatious litigant, Charles Kinney, is purporting to act as attorney for Kimberly Kempton. In reality, Kempton is merely acting as a puppet or conduit for Kinney’s abusive litigation practices. Kinney recently acknowledged as much, telling the trial court that the only reason he was not the named plaintiff is because `”I’m a vexatious litigant and it takes too long to get approval” to sue.'” (In re Kinney, supra, 201 Cal.App.4th at p. 959.)

The Kinney court further found that Kinney stood to directly benefit from the litigation because he was a co-owner of the property at issue. In addition, he was not acting as a neutral assessor of Kempton’s claims, “`bound by ethical considerations not to pursue unmeritorious or frivolous matters on behalf of a prospective client.'” (In re Kinney, supra, 201 Cal.App.4th at p. 959, quoting Shieh, supra, 17 Cal.App.4th at p. 1167.) The court stated that, instead, Kinney was using Kempton as a “strawman” plaintiff, while 1318*1318 Kinney “pursues obsessive, meritless litigation against the hapless residents of this state who have the misfortune to be his neighbors. Kinney has demonstrated a pattern of using the judicial system as a weapon in an unrelenting quest to get advantages that he does not deserve, imposing onerous litigation costs on his opponents that he does not incur himself because he is a lawyer. He is one `for whom litigation has become a game.'” (In re Kinney, p. 959.) The Kinney court therefore issued a prefiling order prohibiting Kinney, from filing any new litigation, either in his own name or in the name of Kempton without first obtaining leave of the presiding judge under section 391.7, subdivision (a). (In re Kinney, at pp. 960-961.)

The instant case is distinguishable from Kinney in several significant ways. Aristea may have been acting as a mere puppet or conduit for Paul’s abusive litigation practices, but Paul was not representing Aristea as her attorney of record. On one occasion he attempted to appear on her behalf but was told he could not do so because he was not licensed to practice law in California. In addition, this case does not involve an order to show cause why Paul or Aristea should not be declared a vexatious litigant. This case concerns the trial court’s dismissal of Aristea’s complaint based on a notice of a vexatious litigant order solely against Paul. The order in Kinney, on the other hand, was issued by the appellate court and prohibited a previously declared vexatious litigant attorney, Kinney, and not Kempton, from filing any new litigation, either in his own name or in the name of Kempton without first obtaining a prefiling order. Unlike in the instant case, the Kinney court did not dismiss the entire complaint, including Kempton’s claims.

The instant case is unique in that it involves a complaint containing allegations by a mother and her son, in which the mother, Aristea, is not barred under section 391.7(c) from bringing her own personal claims based on her own property interests, but her son, Paul, is a vexatious litigant barred from bringing any claims under section 391.7(c). In addition, the FAC was filed with the court, rather than rejected by the court clerk or automatically dismissed under section 391.7(c). Instead the trial court heard and granted Solera’s ex parte application for dismissal of the FAC in its entirety.

(7) While we conclude the trial court erred in dismissing ex parte Aristea’s personal claims alleged in the FAC, we emphasize that this outcome is not intended to open the floodgates to vexatious litigants using “confederate” parties who have no personal rights or interests in the claims brought by vexatious litigants. The instant decision is intended to be narrowly construed to apply only to precluding dismissal under section 391.7(c) of valid claims by nonvexatious litigants in actions which also include improper claims brought by vexatious litigants. Under such circumstances, the nonvexatious litigant’s valid, personal claims should not be dismissed ex parte under section 391.7(c). Only the vexatious litigant’s claims are subject to dismissal.

1319*1319 We also reject Solera’s argument raised during oral argument in this court that, if we reverse the trial court’s dismissal of Aristea’s FAC claims, this court would be improperly adding implicit language to section 391.7(c) that does not exist. Solera argues this court would be implicitly adding the word “solely” to section 391.7(c) to state: “The clerk may not file any litigation [solely] presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing.”

(8) This court is not adding any language to section 391.7(c). To the contrary, we are narrowly applying section 391.7(c) as written to the unique facts and circumstances of this case. Solera urges this court to construe section 391.7(c) as requiring the trial court to dismiss under section 391.7(c) claims brought by a nonvexatious litigant when such claims are in a complaint that includes claims brought by a vexatious litigant. We reject this proposition because section 391.7(c) only refers to litigation presented by vexatious litigants. There is no language requiring dismissal of a nonvexatious litigant’s claims. And we shall not implicitly add such language to section 391.7(c), particularly when doing so would lead to dismissal of a nonvexatious litigant’s claims, in violation of the nonvexatious litigant’s due process rights.

Here, Paul appears to have been undeterred in wreaking havoc on the judicial system and defendants after having been declared a vexatious litigant, by unlawfully, without a California license to practice law, drafting and filing pleadings on behalf of his mother. Nevertheless, where Aristea’s separate claims are at stake in this action and where she has not been declared a vexatious litigant, we conclude the trial court improperly dismissed Aristea’s FAC as to those claims personal to Aristea. We leave it to the trial court to determine by noticed motion whether the totality of the circumstances illuminated in this appeal and by evidence presented at the hearing support orders (1) declaring Aristea a vexatious litigant, as a coconspirator in Paul’s “`campaign of litigation terror'” (Shieh, supra, 17 Cal.App.4th at p. 1164) and (2) prohibiting Paul, a previously declared vexatious litigant, from drafting pleadings or filing any new litigation, either in his own name or in the name of Aristea, without first obtaining leave of the presiding judge under section 391.7.

1320*1320 IV

DISPOSITION[8]

The judgment of dismissal is affirmed as to any claims or allegations in the FAC which are brought by or benefit Paul. The judgment of dismissal is reversed as to all claims solely personal to Aristea. The trial court is directed on remand to order stricken from the FAC all allegations mentioning Paul and all claims benefiting or seeking recovery on behalf of Paul. The parties shall bear their own costs on appeal.

Ramirez, P. J., and Fields, J., concurred.

[1] The defendants named in Aristea’s first amended complaint, collectively referred to in this decision as “Solera,” include Solera Oak Valley Greens Association and its management company, board of directors, various employees, and contracted vendors, and City of Beaumont Animal Control Officer Jack Huntsman. The vexatious litigant proceedings in this action were brought by Solera Oak Valley Greens Association and Huntsman. Use of the name “Solera” in this regard refers to both of these defendants.

[2] Unless otherwise noted, all statutory references are to the Code of Civil Procedure. Section 391.7, subdivision (c), is referred to herein as section 391.7(c).

[3] Civil Code sections 4000 to 6150, formerly Civil Code section 1350 et seq.

[4] Paul “graduated from law school but is not a practicing attorney.” (Hupp v. City of Walnut Creek(N.D.Cal. 2005) 389 F.Supp.2d 1229, 1232, fn. 5.) This fact was disclosed at the hearing on Aristea’s motion for reconsideration on April 4, 2016, when Paul attempted to appear on behalf of Aristea.

[5] Aristea also filed a request for judicial notice of page 5 of the reporter’s transcript of the ex parte hearing on February 10, 2016. The language on page 5 is quoted in Aristea’s supplemental brief. Neither Aristea nor Solera included in the original record on appeal a reporter’s transcript of any of the relevant proceedings in this matter. Aristea’s request for judicial notice of page 5 of the hearing on February 10, 2016, is granted (Evid. Code, §§ 452, 459).

[6] “Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a `waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is `forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the `”intentional relinquishment or abandonment of a known right.”‘” (In re S.B.(2004) 32 Cal.4th 1287, 1293, fn. 2 [13 Cal.Rptr.3d 786, 90 P.3d 746].)

[7] Employees of Shieh and Say Inc. “stated under oath that `Say’ was an anglicized version of `Shieh.'” (Say & Say, supra, 20 Cal.App.4th at p. 1766.)

[8] Solera filed a request for judicial notice on August 3, 2016, requesting judicial notice of the following documents: (1) this court’s order filed on March 3, 2014, denying Paul’s application for permission on February 5, 2014, to file an appeal from the superior court’s January 13, 2014 order dismissing his complaint and (2) Paul and Aristea’s complaint filed on March 1, 2016, in the federal district court. Solera’s request for judicial notice is denied on the ground the two documents were not before the trial court when it ruled on Solera’s application to dismiss Aristea’s complaint and therefore are not relevant to the instant appeal.

Aristea filed a request for judicial notice on August 23, 2016, requesting judicial notice of two documents, (1) a trial court order entitled, “Ruling on Submitted Matter,” and (2) a trial court minute order on the same matter. Both documents were filed on July 28, 2016, in Solera Oak Valley Greens Assn. v. Hupp (Super. Ct. Riverside County, No. RIC 1515215), and concerned an order to show cause regarding whether Aristea qualified as a vexatious litigant. Aristea’s request for judicial notice is denied on the ground the two documents are not relevant to this appeal. They concern a different case and were not before the trial court when it ruled on Solera and Huntsman’s application to dismiss Aristea’s complaint.

Keywords: Governing Documents, Proper Parties