                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CANYON VIEW ESTATES, a general                   No. 10-55065
partnership; CHRIS SEIDENGLANZ, an
individual; GLORIA SEIDENGLANZ, an
individual; KERRY T. SEIDENGLANZ,                D.C. No. 2:09-cv-00986-SJO-
an individual; MARK SEIDENGLANZ,                 AGR
an individual,

              Plaintiffs - Appellees,            MEMORANDUM *

  v.

FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for
Washington Mutual Bank F.A., a savings
and loan association Substituted for
Washington Mutual Bank, F.A., as
successor in interest to HOMESIDE
LENDING, INC., a Florida Corporation,

              Defendant - Appellant,

  and

JESSE S. HERNANDEZ, an individual;
ANDERSON, MCPHARLIN &
CONNERS LLP, a California limited
liability partnership,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
               Defendants - Appellees,

  and

DOES, 1 through 20, inclusive,

               Defendant.



                     Appeal from the United States District Court
                         for the Central District of California
                      S. James Otero, District Judge, Presiding

                      Argued and Submitted February 13, 2012
                               Pasadena, California


Before:       FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
              District Judge.**

        Plaintiff Canyon View Estates (“Canyon View”) sued Defendants Homeside

Lending (“Homeside”) and Homeside’s Attorneys (“the Attorneys”) for malicious

prosecution. Homeside and the Attorneys filed anti-SLAPP motions to strike the

pleadings pursuant to Cal. Civ. Proc. Code § 425.16(b)(2). The trial court denied

Homeside’s anti-SLAPP motion and granted the Attorneys’ anti-SLAPP motion.

        Federal Deposit Insurance Corp., as the receiver of Homeside, appeals the

denial of Homeside’s anti-SLAPP motion. Canyon View appeals the grant of the


        **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

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Attorneys’ anti-SLAPP motion. This court has jurisdiction over a denial of an

anti-SLAPP motion as an appealable interlocutory order, and a grant of an anti-

SLAPP motion, pursuant to 28 U.S.C. § 1291. See Batzel v. Smith, 333 F.3d 1018,

1024 (9th Cir. 2003). We affirm the grant of the Attorneys’ anti-SLAPP motion,

reverse the denial of Homeside’s anti-SLAPP motion, and remand to the district

court.

         1.    Standard of Review – We apply the same rules that California state

courts apply in ruling on an anti-SLAPP motion. See Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1109 (9th Cir. 2003). We review an anti-SLAPP ruling de

novo. Id. at 1102. We “consider the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense is based.” Cal. Civ.

Proc. Code § 425.16(b)(2). “[T]he 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.”

Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 741 (2003) (quotation marks

omitted).

         To support a claim for malicious prosecution, Canyon View must show that

Homeside lacked probable cause to litigate the underlying action. See Sheldon

Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 867 (1989). Probable cause is a


                                           3
determination that, on the basis of the facts known to the plaintiff in the underlying

suit, the suit was legally tenable. Id. at 878. A denial of a defense motion for

summary judgment in the underlying suit establishes probable cause, see Roberts v.

Sentry Life Ins., 76 Cal. App. 4th 375, 378 (1999), unless the ruling is shown to

have been obtained by fraud or perjury, see Wilson v. Parker, Covert & Chidester,

28 Cal. 4th 811, 820 (2002). If the ruling was obtained by fraud, a malicious

prosecution plaintiff must further show that the court “would have granted

summary judgment ‘but for’” the fraud. Antounian v. Louis Vuitton Malletier, 189

Cal. App. 4th 438, 452 (2010).

      2.     Probable Cause for Declaratory Judgment on the Lien (the Notice

Issue) – In this case, the California Court of Appeal’s decision established

probable cause for all counts of the Second Amended Complaint. Assuming

without deciding that Homeside obtained this ruling by fraud, the alleged fraud

was not a “but for” cause of the Court of Appeal’s decision. See Antounian, 189

Cal. App. 4th at 452 (requiring “but for” causation).

      The Rittenhouse Email establishes nothing conclusive of Homeside’s receipt

of the December 15 notice. It states neither the date SCME forwarded a notice to

Homeside nor the date Homeside received such notice. The testimony that SCME

regularly forwarded mail to lenders and that Homeside kept no record of incoming


                                           4
mail also fails to establish the relevant dates. None of this evidence would have

altered the Court of Appeal’s holding that “the entire sequence of events raises

triable issues” as to whether Canyon View gave Homeside “a reasonable

opportunity to protect its security interest and cure the default.”

      Canyon View’s theory that Homeside assigned the debt to Aurora in March

1998, prior to filing suit, is implausible. Homeside and Aurora have explained that

Homeside held and serviced the debt until 2005, assigned it to Aurora in 2005, and

repurchased it in 2006. Canyon View’s theory is inconsistent with the intent and

course of conduct of the actual parties to the assignment.

      Finally, as to the type of relief sought, Homeside’s claims for declaratory

relief “set[] forth facts showing the existence of an actual controversy relating to

the legal rights and duties of the respective parties under a written instrument and

request[ed] that these rights and duties be adjudged by the court.” See Davis v.

Santa Ana, 108 Cal. App. 2d 669, 684 (1952).

      3.     Probable Cause for the Fraud Claim – In the underlying suit, two

factors supported probable cause for the fraud claim. First, the Court of Appeal’s

holding in the consolidated case of Norwest v. Canyon View Estates laid out a

theory of fraud equally applicable to the facts underlying Homeside’s action.

Second, the Attorneys suspected that Nancy Stelling of La Quinta dealt with


                                            5
Canyon View on the Allbee loan. Stelling filed a declaration in support of

Norwest’s fraud claims and worked for the same company that originated the

Allbees’ loan and the loans in the Norwest action.

      4.     Probable Cause for the Equitable Lien – In the underlying suit, the

Court of Appeal ruled that Homeside “would be entitled to an equitable lien on

each homeowner/trustor’s leasehold interest” even if the deed of trust failed.

Nothing about Canyon View’s evidence of alleged fraud on the Court of Appeal

alters this holding that an equitable lien could exist.

      5.     Probable Cause for the Accounting Claim – Canyon View re-rented

the land and sold the Allbees’ home to a new tenant. Because of Canyon View’s

actions, a claim for accounting is legally tenable. Homeside needed to know how

much money Canyon View received from the lease with the new tenant and from

the sale of the Allbees’ home. See Teselle v. McLoughlin, 173 Cal. App. 4th 156,

180 (2009) (“An accounting is a species of disclosure, predicated upon the

plaintiff’s legal inability to determine how much money, if any, is due.”)

(quotation marks omitted).

      6.     Probable Cause for Unjust Enrichment and Constructive Trust –

Canyon View’s arguments that the claims for unjust enrichment and construction

trust lacked probable cause are premised on the belief that Homeside “was not


                                            6
entitled” to “Canyon View’s property.” This premise is inconsistent with the Court

of Appeal’s holding that Homeside had a valid and enforceable lien on the

property.

      7.     Probable Cause for Relief from Forfeiture – Homeside’s complaint

alleged that even if Canyon View sent timely notices, it deserved relief from

forfeiture of its security interest. A reasonable attorney would have viewed

Homeside’s claim to have “incur[red] a forfeiture” “by the terms of an obligation,”

without a “grossly negligent, willful, or fraudulent breach of duty” as legally

tenable. See Cal. Civ. Code § 3275.

      8.     Probable Cause for the Cal. Bus. & Prof. Code § 17200 Violation – In

a claim for violation of Cal. Bus. & Prof. Code § 17200, a reasonable attorney

would have viewed Homeside, a lender to mobile home tenants, as a proper

representative in protecting tenants and lenders from Canyon View’s alleged

misconduct. See Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553,

735-36 (1998) (private for-profit plaintiff that suffered no injury may sue to obtain

relief for others for § 17200 violation).1



      1
       In 2004, California adopted a voter initiative constricting standing under §
17200. See Branick v. Downey Sav. & Loan Ass’n, 39 Cal. 4th 235, 240 (2006).
Because Homeside filed its complaint before these changes to § 17200 standing
took effect, we need not take them into account.

                                             7
      9.     The Attorneys – Except with respect to the Rittenhouse Email, which

the Attorneys learned of belatedly, the Attorneys litigated the claims on the basis of

the same facts as Homeside. See Daniels v. Robbins, 182 Cal. App. 4th 204, 222-

23 (2010) (evaluating probable cause of a lawyer based on information obtained

from client). Canyon View has not alleged otherwise. For this reason, the

Attorneys had probable cause to the extent Homeside did.

      10.    Conclusion – Because the pleadings and affidavits fail to state and

substantiate a claim for malicious prosecution, we affirm the district court’s grant

of the Attorneys’ anti-SLAPP motion and reverse its denial of Homeside’s anti-

SLAPP motion. The case is remanded to the district court for further proceedings

consistent with this disposition.

      Canyon View, et al. shall bear costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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