Leek v. Cooper, 2012 WL 1511411 (Cal.App. 3 Dist., Unpublished, May 1, 2012).
Not Officially Published (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115). California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal,
Third District, California.
Donna LEEK et al., Plaintiffs and Appellants,
Jay COOPER et al., Defendants and Respondents.
Filed May 1, 2012
(Super. Ct. No. SCV26798)
Martin F. Jennings Jr., Attorney at Law, 217 Jefferson Street, Roseville, CA 95678, for Plaintiff and Appellant.
Steven A. White, Waltz Law Firm, 2022 28th Street, Sacramento, CA 95818, for Defendant and Respondent.
*1 This is the second time these parties have paid us a visit. Last time, we affirmed an order entering summary judgment in favor of Jay Cooper FN1 in an age discrimination lawsuit brought by Donna Leek, John Borden, and Cindy Buschmann, but reversed the portion of the judgment awarding attorney fees to Cooper. ( Leek v. Cooper (2011) 194 Cal.App.4th 399, 416, 421 ( Leek I ).) During the pendency of the appeal, Cooper and his attorney, John A. Britton (collectively, Cooper), sought a writ of execution and obtained orders directing Leek, Borden, and Buschmann (collectively, Leek) to submit to debtor's examinations. The trial court then granted Leek's motion for a protective order preventing the examinations, ruling that the appeal automatically stayed enforcement of the judgment.
FN1. References to Jay Cooper are to him as an individual.
Not satisfied with that victory, Leek filed a second lawsuit, this time alleging causes of action for malicious prosecution, abuse of process, and intentional infliction of emotional distress (emotional distress), each arising out of Cooper's attempt to conduct the debtor's examinations. Cooper moved to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute.FN2 The trial court granted Cooper's motion and awarded attorney fees and costs to Cooper. Leek appeals. Leek challenges the trial court's order striking the complaint and awarding attorney fees and costs to Cooper.
FN2. Undesignated statutory references are to the Code of Civil Procedure. SLAPP is an acronym for "strategic lawsuit against public participation."
As we explain, the trial court properly granted Cooper's anti-SLAPP motion because (1) the acts forming the basis of Leek's complaint were taken in furtherance of the right of petition, and (2) Leek failed to establish a probability of prevailing on the merits. The trial court also properly awarded attorney fees and costs to Cooper as provided under the anti-SLAPP statute. Thus, we affirm the order striking the complaint and awarding attorney fees and costs. We also award attorney fees and costs on appeal to Cooper.
In 2007, Leek sued Auburn Honda and the company's owner, Jay Cooper, alleging age discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov.Code, sec. 12900 et seq.). In 2009, the trial court entered summary judgment in favor of Jay Cooper, ruling that an individual manager or supervisor cannot be held liable for age discrimination under FEHA, and that Leek's arguments and evidence that Auburn Honda and Jay Cooper were alter egos failed because alter ego liability was not pled in the complaint. Thereafter, the trial court awarded Cooper attorney fees and costs pursuant to Government Code section 12965. Leek appealed from both the summary judgment and the attorney fee award.FN3
FN3. As already mentioned, we affirmed the order granting summary judgment in favor of Jay Cooper and reversed the award of attorney fees. ( Leek I, supra, 194 Cal.App.4th at pp. 416, 421.)
*2 In July 2009, during the pendency of the appeal, Cooper sought a writ of execution and obtained three orders for debtor's examinations. The parties then exchanged a series of letters debating whether the filing of the appeal automatically stayed enforcement of the judgment under sections 916 and 917.1. FN4 Ultimately, they agreed to have the trial court decide the issue. Cooper removed the debtor's examinations from the trial court's calendar and a hearing on the issue was scheduled.
FN4. Section 916 provides: "(a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. [para.] (b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from."
Section 917.1 provides in relevant part: "(a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment is for any of the following: [para.] (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. [para.] ... [para.] (d) Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of Title 14 shall be included in the amount of the judgment or order for the purpose of applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14."
In January 2010, Leek filed a motion for a protective order arguing that enforcement of the judgment was automatically stayed under section 916 because attorney fees are denominated by section 1021 et seq. as recoverable costs of suit. Cooper argued in opposition that the judgment was not automatically stayed because an award of attorney fees under FEHA is a sanction for abusive litigation tactics, rather than an award of routine costs of suit, and therefore, the judgment was for "[m]oney or the payment of money" within the meaning of section 917.1. Cooper also argued that examination of a judgment debtor "is not execution" and "has no impact on the judgment, and thus escapes the stay that might otherwise be imposed by [sections] 916 or 917.1(a)(1)."
In February 2010, the trial court granted Leek's motion and issued an order preventing Cooper from conducting the debtor's examinations, explaining: "The judgment in [Jay] Cooper's favor is one for costs (including statutorily allowable fees), falling within [section] 917.1(d). That section provides that no undertaking is required to stay a judgment solely for 'costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.' The attorneys' fees awarded in this action were awarded per statute, and are therefore awarded per [section] 1033.5(a)(10)(B), which is part of Chapter 6. [Cooper] cites no authority for his argument that such fees are considered sanctions and not costs awarded pursuant to [section] 1021, et seq. [para.] Nor does [Cooper] cite any authority for his proposition that conducting a judgment debtor examination is not 'enforcement' of the judgment, prohibited by [section] 917.1(a) & (d)."
*3 In March 2010, Leek sued Cooper for malicious prosecution, abuse of process, and emotional distress based on Cooper's attempt to conduct the debtor's examinations. In May 2010, Cooper moved to strike the complaint pursuant to section 425.16. Relying on Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 ( Jarrow ) and Rusheen v. Cohen (2006) 37 Cal.4th 1048 ( Rusheen ), Cooper argued that the complaint arose out of the exercise of the protected right of petition. Cooper also argued that Leek could not establish a probability of success on the merits of any of the causes of action asserted in the complaint. With respect to the malicious prosecution cause of action, Cooper argued that (1) an attempt to conduct a debtor's examination is a procedural action within a lawsuit that does not give rise to liability for malicious prosecution, (2) Leek could not establish a favorable termination of the lawsuit because the appeal was still pending, (3) Leek could not establish that Cooper lacked probable cause to believe the appeal did not automatically stay enforcement of the judgment, and (4) Leek could not establish that Cooper's attempt to conduct the debtor's examinations was malicious. With respect to abuse of process and emotional distress, Cooper argued that these causes of action were barred by the litigation privilege.
In July 2010, Leek filed an amended complaint dropping the abuse of process and emotional distress causes of action. Leek then filed an opposition to the anti-SLAPP motion arguing that (1) Cooper's attempt to conduct the debtor's examinations was not protected by the right of petition because the filing of the appeal stayed enforcement of the judgment, and (2) there was a probability of success on the malicious prosecution cause of action.
In December 2010, the trial court granted Cooper's anti-SLAPP motion and ordered the complaint stricken. Leek appeals.
The Anti–SLAPP Statute
Section 425.16 provides, inter alia, that "[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." (sec. 425.16, subd. (b)(1).) "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (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 ...." (sec. 425.16, subd. (e).)
"Resolution of an anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue," as defined in the statute. (sec. 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" ( Jarrow, supra, 31 Cal.4th at p. 733; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "An appellate court independently reviews the trial court's order granting a special motion to strike under section 425.16. [Citation.]" ( Rusheen, supra, 37 Cal.4th at p. 1055.)
"Arising From" Prong
Leek contends the malicious prosecution cause of action did not arise from an act in furtherance of the right of petition.FN5 We disagree.
FN5. As already mentioned, after Cooper filed the anti-SLAPP motion, Leek amended the complaint and abandoned the abuse of process and emotional distress causes of action. As Cooper correctly observes, and Leek does not dispute, this did not render the anti-SLAPP motion moot with respect to these abandoned causes of action. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1052.) However, we need not address whether the trial court correctly decided the motion with respect to these causes of action because Leek concedes they "would be barred by the litigation privilege." Accordingly, we address only whether the trial court properly granted the anti-SLAPP motion with respect to the malicious prosecution cause of action. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, sec. 704, pp. 773–774; see, e.g., Estate of Stevens (1945) 27 Cal.2d 108, 115; Federer v. County of Sacramento (1983) 141 Cal.App.3d 184, 186 [admission in brief was the equivalent of a concession that controlled disposition of the case].)
*4 Section 425.16, subdivision (e), expressly defines an " 'act in furtherance of a person's right of petition' " to include "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." This section applies to malicious prosecution actions because "every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit." ( Jarrow, supra, 31 Cal.4th at pp. 734–735, citing Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130–1131.) However, "anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. [Citation.] Indeed, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' [Citation.]" ( Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537; see, e.g., Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050 [filing a notice of lis pendens]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 [filing notice of lis pendens and notice of rescission]; Birkner v. Lam (2007) 156 Cal.App.4th 275, 282 [service of notice terminating tenancy and refusal to rescind notice].)
In Rusheen, supra, 37 Cal.4th 1048, our Supreme Court held that the trial court properly granted an anti-SLAPP motion striking a cross-complaint for abuse of process arising from the plaintiff's execution of a default judgment procured through the filing of allegedly false declarations of service. ( Id. at p. 1065.) Beginning with the first prong of the analysis, the court explained that " '[a] cause of action "arising from" [a] defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' [Citations.] " 'Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]" ( Id. at p. 1056.) Turning to the second prong of the analysis, the court concluded the defendant could not demonstrate a probability of success on the abuse of process cross-complaint because of the litigation privilege. ( Id. at p. 1065.) As the court explained, "if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct, which in this case included acts necessary to enforce the judgment and carry out the directive of the writ. [Citations.]" ( Ibid.) Because the gravamen of the action was the procurement of the judgment by allegedly false declarations of service, "the enforcement of the judgment in reliance on the filing of privileged declarations of service was itself privileged." ( Ibid.) Thus, the cross-complaint arose from petitioning activity, i.e., procuring the judgment by allegedly false declarations of service, subjecting the cross-complaint to anti-SLAPP scrutiny. And because this communicative act was the gravamen of the cross-complaint, the litigation privilege extended to the related act of enforcing the judgment, precluding the defendant from succeeding on the merits of the cross-complaint.
Here, Leek sued Cooper for malicious prosecution, alleging that Cooper maliciously, and without probable cause, brought an "action" against Leek by seeking to obtain the orders for debtor's examinations while the judgment was on appeal and by attempting to conduct the examinations. Because the gravamen of Leek's malicious prosecution lawsuit is Cooper's act of petitioning the trial court for the examination orders, we conclude Cooper has made the threshold showing that the lawsuit arose out of protected petitioning activity within the meaning of section 425.16.
Nevertheless, Leek contends the malicious prosecution lawsuit did not arise from Cooper's constitutional right of petition because "the automatic stay pursuant to ... section 916 makes it clear that [Cooper] had no legal right to seek an order of examination." While this is a creative argument, it has no merit.
*5 Section 425.16 "does not apply to any activity that can conceivably be characterized as being ' "in furtherance" ' of a defendant's protected speech or petition rights if, as a matter of law, that activity was illegal and by reason of the illegality not constitutionally protected. [Citation.] In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied. The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16's purpose to 'prevent and deter "lawsuits [referred to as SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (sec. 425.16, subd. (a).)' [Citation.]" ( Flatley v. Mauro (2006) 39 Cal.4th 299, 316 ( Flatley ).)
For example, in Flatley, supra, 39 Cal.4th 299, our Supreme Court held that the defendant's conduct, which amounted to criminal extortion as a matter of law, was not entitled to the protection of the anti-SLAPP statute because "[e]xtortion is not a constitutionally protected form of speech." ( Id. at pp. 328, 333.) Similarly, in Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 ( Paul ), disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at page 68, footnote 5, the Court of Appeal held that the defendants were not entitled to the protection of the anti-SLAPP statute because they effectively conceded that their "actions in laundering campaign money do not constitute constitutionally protected activity." ( Paul, supra, 85 Cal.App.4th at pp. 1362, 1367; see also City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 621 ["if the defendant concedes the conduct complained of was illegal, the defendant will be unable to make a prima facie showing the action arises from protected activity within the meaning of section 425.16"].)
However, in enacting section 425.16, " '[t]he Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish [his or] her actions are constitutionally protected under the First Amendment as a matter of law.' [Citations.] Instead, under the statutory scheme, a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the analysis, if necessary. [Citation.] Otherwise, the second step would become superfluous in almost every case, resulting in an improper shifting of the burdens. [Citation.]" ( Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089–1090, citing Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305; accord, Flatley, supra, 39 Cal.4th at p. 316; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 94 ["any 'claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's [secondary] burden to provide a prima facie showing of the merits of the plaintiff's case' "].)
Here, it makes no difference whether the filing of the appeal automatically stayed enforcement of the judgment. Even if it did, this fact did not make Cooper's request for the examination orders "illegal as a matter of law" within the meaning of Flatley, supra, 39 Cal.4th at page 320. At most, this meant that Cooper petitioned the trial court for an order the court could not provide. But this is far different than the request itself being illegal, and therefore not protected by the right of petition. Leek cites us to no case, nor have we found any on our own, extending Flatley to the situation at issue here. We conclude that doing so would run counter to section 425.16, subdivision (a), which commands that we "broadly" construe the statute to protect the right of petition. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1121.)
*6 Leek further argues that the examination orders were "a nullity" and would not have been issued had Cooper informed the trial court about the appeal. Thus, argues Leek, the malicious prosecution lawsuit "did not arise from [Cooper's] attempt to get an order of examination, but rather [from Cooper's] refusal to drop an order of examination, after it should have been obvious that the order of examination was a nullity." We disagree for several reasons.
First, we disagree with Leek's premise that it should have been obvious that the examination orders were a nullity. Here, the trial court awarded attorney fees to Jay Cooper under Government Code section 12965, subdivision (b), which authorizes an award of reasonable attorney fees and costs to the prevailing party in an action brought under FEHA. While this provision allows attorney fees to either party that prevails, "California courts have interpreted the statute in accordance with the principles developed by federal courts in employment discrimination claims, to the effect that a prevailing defendant in an employment discrimination action cannot recover attorney fees unless the action was unreasonable, frivolous, meritless or vexatious. [Citations.] This standard is in contrast to that applied to a prevailing plaintiff, who should ordinarily recover absent special circumstances rendering such an award unjust. [Citation.]" ( Leek I, supra, 194 Cal.App.4th at pp. 419–420.) Because of this, Cooper's argument that the award of attorney fees under FEHA was more akin to a money judgment than an award of routine costs of suit was, at the very least, plausible. (See Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1432–1433 [a statutory award of attorney fees and costs under subdivision (c) of section 425.16, the anti-SLAPP statute, is not automatically stayed by the perfecting of an appeal because such an award is not reciprocal, and therefore not routine costs of suit within the meaning of section 917.1, subdivision (d) ].) We need not decide this issue because, as we have explained, even if the award of attorney fees was automatically stayed, this does not mean that Cooper's petition for examination orders was "illegal as a matter of law" within the meaning of Flatley, supra, 39 Cal.4th at page 320, and therefore not protected by the right of petition.
Second, Cooper removed the debtor's examinations from the trial court's calendar in order to allow the court to resolve the issue. Thus, Cooper did "drop" the examination orders until the trial court had a chance to rule on the issue of whether enforcement of the judgment was stayed.
Third, and most importantly, it is the bringing of an action, maliciously and without probable cause, that subjects a litigant to liability for malicious prosecution. (See, e.g., Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) Here, the gravamen of Leek's malicious prosecution lawsuit was the act of petitioning the trial court for the examination orders.
Nor are we persuaded by Leek's reliance on Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 ( Marlin ) and Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308 ( Pearl Street ). In Marlin, after plaintiff tenants were served with notices informing them that they were being evicted and their units withdrawn from the rental market pursuant to the Ellis Act (Gov.Code, sec. 7060 et seq.), these tenants brought an action for declaratory relief seeking a judicial determination of their rights under that statutory enactment. ( Marlin, supra, 154 Cal.App.4th at pp. 156–157.) Reversing the trial court's order granting the defendant landlords' anti-SLAPP motion, the Court of Appeal held that the declaratory relief action did not arise from protected speech or petitioning, explaining: "The filing and service of the notices may have triggered plaintiffs' complaint and the notices may be evidence in support of plaintiffs' complaint, but they were not the cause of plaintiffs' complaint. Clearly, the cause of plaintiffs' complaint was defendants' allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs' tenancy. Terminating a tenancy [and] removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech." ( Id. at pp. 160–161, fns. omitted.) Similarly, in Pearl Street, supra, 109 Cal.App.4th 1308, the Court of Appeal held that a declaratory relief lawsuit seeking a judicial determination of the maximum allowable rent for two apartments under the city's rent control law, which was triggered by a notice filed with the rent control board, did not arise from the filing of the notice but rather from the illegal rents allegedly charged by defendants. ( Id. at pp. 1315–1318.)
*7 Unlike Marlin, supra, 154 Cal.App.4th 154, and Pearl Street, supra, 109 Cal.App.4th 1308, here, Leek sued Cooper for malicious prosecution, a cause of action which, by definition, "alleges that the defendant committed a tort by filing a lawsuit." ( Jarrow, supra, 31 Cal.4th at p. 735, citing Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130–1131.) Thus, Cooper's petition for the examination orders was not simply an occurrence that preceded the filing of Leek's malicious prosecution lawsuit. It was the gravamen of the lawsuit.
We conclude the trial court correctly determined that Cooper satisfied the threshold burden of showing the malicious prosecution lawsuit arose from protected petitioning activity and appropriately moved on to the second part of the anti-SLAPP analysis.
"Probability of Prevailing" Prong
The trial court also correctly determined that Leek failed to demonstrate a probability of prevailing on the merits of the malicious prosecution claim.
As already mentioned, "if a court ruling on an anti-SLAPP motion concludes the challenged cause of action arises from protected petitioning, it then 'determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" ( Jarrow, supra, 31 Cal.4th at p. 741.) To satisfy this prong, " '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 if the evidence submitted by the plaintiff is credited." ' [Citation.]" ( Ibid.)
"The tort of malicious prosecution requires the initiation of a full-blown action as well as its favorable termination for the malicious prosecution plaintiff; subsidiary procedural actions within a lawsuit such as the application for a restraining order or for a lien will not support a claim for malicious prosecution. [Citations.] The reason the courts have held that a malicious prosecution action cannot be grounded upon actions taken within pending litigation is that permitting such a cause of action would disrupt the ongoing lawsuit by injecting tort claims against the parties' lawyers and because the appropriate remedy for actions taken within a lawsuit lies in the invocation of the court's broad powers to control judicial proceedings. [Citation.]" ( Adams v. Superior Court (1992) 2 Cal.App.4th 521, 528; Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 ( Merlet ).)
In Merlet, supra, 64 Cal.App.4th 521, the Court of Appeal held that filing a motion for a writ of sale to enforce a judgment cannot give rise to a malicious prosecution claim, explaining that "a motion for a writ of sale occurs after liability and damages have been determined, and it does not result in a separate and distinct proceeding. ' "A motion is not an independent right or remedy ... but implies the pendency of a suit between the parties and is confined to incidental matters in the progress of the cause. As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy." [Citation.]' [Citation.] Respondents simply invoked one remedial measure, which could not exist absent the judgment. A ' "[r]emedy" is not redress or relief, but is the means by which a wrong is redressed and relief obtained. A writ is an order in writing issued by a competent official in a judicial proceeding and, as applied to execution in civil cases, is part of the remedy to effectuate the action by the enforcement of the judgment.' [Citation.]" ( Id. at pp. 61–62.) The court further explained: "Permitting a malicious prosecution claim in this situation would threaten the efficient administration of justice. It would permit a party to transform the statutory and summary procedure to enforce a judgment into a full-blown lawsuit." ( Id. at p. 62.)
*8 Here, Cooper applied to the trial court for orders requiring Leek to appear before the court "to furnish information to aid in enforcement of the money judgment." (sec. 708.110, subd. (a).) A debtor's examination is incidental to the main lawsuit and was originally established "as a substitute for the former creditor's suit or creditor's bill in equity by which a judgment creditor, after a return of execution unsatisfied, sought to compel discovery of assets and to apply them to the judgment. The creditor's suit was a cumbersome independent action, and the statutory proceeding superseded it except in unusual situations." (8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, sec. 277, pp. 302–303.) Thus, like the writ of sale, the application for an examination order "occurs after liability has been determined and a judgment ordered," and is "the continuation, or the enforcement, of a prior action, and not a separate proceeding." ( Merlet, supra, 64 Cal.App.4th at p. 62.)
Because the application for an examination order cannot give rise to a claim for malicious prosecution, we conclude the trial court correctly determined that Leek failed to demonstrate a probability of prevailing on the merits.
Attorney Fees and Costs
Nor do we agree with Leek's final contention that the order awarding Cooper attorney fees and costs must be vacated. Section 425.16, subdivision (c), provides in pertinent part that "in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Moreover, as Cooper correctly observes, this provision "includes fees and costs incurred in defending an unsuccessful appeal of an order granting a special motion to strike. [Citations.] The provision for fees and costs 'is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extricating [himself or itself] from a baseless lawsuit.' [Citation.]" ( GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 20.) Accordingly, we award Cooper attorney fees and costs on appeal.
The order granting Jay Cooper and John A. Britton's anti-SLAPP motion is affirmed. Attorney fees and costs on appeal are awarded to Jay Cooper and John A. Britton. (Cal. Rules of Court, rule 8.278(a)(1).)
BLEASE, Acting P.J.
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