Filed 6/11/15 Daniel v. Spellman CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



NATHAN G. DANIEL,

         Plaintiff and Appellant,                                        E060174

v.                                                                       (Super.Ct.No. CIVRS1304204)

ROSE SPELLMAN,                                                           OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Dismissed in part; affirmed in part.

         Law Offices of Joseph W. Singleton and Joseph W. Singleton for Plaintiff and

Appellant.

         No appearance for Defendant and Respondent.

         Plaintiff and appellant Nathan G. Daniel brought suit against his former attorney,

defendant and respondent Rose Spellman, contending that her successful petition for a

civil harassment restraining order against him constituted an abuse of process. In this

appeal, Daniel seeks review of the trial court’s orders (1) denying his peremptory
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challenge to disqualify the judge pursuant to Code of Civil Procedure1 section 170.6, and

(2) granting Spellman’s special motion to strike the complaint as a strategic lawsuit

against public participation (anti-SLAPP motion) pursuant to section 425.16 (the anti-

SLAPP statute).2

       For the reasons stated below, Daniel’s claim of error with respect to the trial

court’s denial of his peremptory challenge will be dismissed as a purported appeal of a

nonappealable order, and we affirm the grant of Spellman’s anti-SLAPP motion.

                     I. FACTS AND PROCEDURAL BACKGROUND

       On September 5, 2010, Daniel retained Spellman to represent him in two cases for

wrongful foreclosure, brought against two separate banks. For reasons that are a matter

of some dispute between the parties, and that are irrelevant to the present appeal,

Spellman subsequently brought an ex parte motion to be relieved as counsel in one of the

cases, with the intention of filing a similar motion in the second case shortly thereafter.

Spellman’s motion was heard on June 14, 2011, and was granted.3

       Later, on June 14, 2011, Spellman filed a petition for a civil harassment restraining

order against Daniel. Spellman’s asserted basis for the restraining order was disturbing

and threatening behavior by Daniel, beginning when she first requested he consent to her

       1   Further undesignated statutory references are to the Code of Civil Procedure.

       2  We address Daniel’s other pending appeal (case No. E060026), from an order
issued in an action brought by Spellman seeking a civil harassment restraining order
(Super. Ct. case No. CIVRS1105739), in a separate opinion.

       3 Spellman was relieved as counsel in the second case in which she represented
Daniel a month later, on July 15, 2011.

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withdrawal as his counsel, and continuing particularly during and immediately after the

hearing on her motion to be relieved as counsel. A temporary restraining order was

issued on June 15, 2011. On July 20, 2011, after a series of continuances, Spellman was

granted a restraining order against Daniel with a duration of three years, expiring at

midnight on July 20, 2014.

       On June 14, 2013, Daniel filed the present action, alleging that Spellman’s petition

for a restraining order constituted an abuse of process. On August 16, 2013, Spellman

filed her anti-SLAPP motion.

       On August 20, 2013, Spellman filed a notice of related case, informing the court

that the present case is related to her petition for a restraining order. On August 22,

2013, the matter was assigned for all purposes, including hearing of Spellman’s anti-

SLAPP motion, to the same judge who had previously heard Spellman’s petition for a

restraining order. Daniel, however, apparently did not immediately receive notice that

the case had been reassigned. Having learned of the reassignment—purportedly when

confirming the hearing date for the anti-SLAPP motion—on September 24, 2013, he filed

a peremptory challenge pursuant to section 170.6.

       Both Spellman’s anti-SLAPP motion and Daniel’s peremptory challenge came on

for hearing on November 8, 2013. The trial court denied Daniel’s peremptory challenge,

and granted Spellman’s anti-SLAPP motion.4



       4 Additional facts will be discussed below, as necessary to address Daniel’s
claims of error.

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                                     II. DISCUSSION

A. We Decline to Reach the Merits of Daniel’s Claim of Error Regarding the Denial

of His Peremptory Challenge to the Trial Judge.

       Daniel contends that the trial court erred by denying his peremptory challenge

pursuant to section 170.6. We will not, however, reach the merits of this claim of error.

It is well established that a timely writ petition is “the exclusive means of appellate

review of an unsuccessful peremptory challenge.” (People v. Hull (1991) 1 Cal.4th 266,

268.) Daniel argues at some length that we nevertheless have the discretion to reach the

merits of his claim of error, and that we should do so. But while we agree with Daniel

regarding the scope of our discretion, we decline to exercise it as he has requested.

       We have the discretion to reach the merits of Daniel’s arguments by treating his

purported appeal of the denial of his peremptory challenge as a petition for a writ of

mandate. (Olson v. Cory (1983) 35 Cal.3d 390, 400-401.) But we disagree that it makes

sense to do so here. Immediately after denying Daniel’s peremptory challenge, the trial

court judge disposed of the case in its entirety by granting Spellman’s anti-SLAPP

motion. Even if we were to agree with Daniel regarding the merits of the trial judge’s

ruling on his peremptory challenge, judicial economy would hardly be promoted by

remanding the case for Spellman’s anti-SLAPP motion to be heard again by a different

judge, whose ruling we would review de novo in any case. (See Flatley v. Mauro (2006)

39 Cal.4th 299, 314 (Flatley) [“‘Review of an order granting or denying a motion to

strike under section 425.16 is de novo.’”].) And, for the reasons discussed later in this

opinion, Spellman’s anti-SLAPP motion was properly granted, so there is no need for us

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to remand the matter for any further proceedings. As such, even assuming the trial

court’s ruling on Daniel’s peremptory challenge was erroneous, the error could have no

effect on the ultimate outcome of the case, and therefore is harmless. (See People v.

Watson (1956) 46 Cal.2d 818, 836 [reversal required only when “it is reasonably

probable that a result more favorable to the appealing party would have been reached in

the absence of the error”].)

       Because Daniel’s claim of error with respect to the denial of his peremptory

challenge constitutes a purported appeal of a nonappealable order, that portion of his

appeal will be dismissed.

B. The Trial Court Did Not Err by Granting Spellman’s Anti-SLAPP Motion.

       Daniel contends that the trial court’s grant of Spellman’s anti-SLAPP motion was

erroneous, because “Daniel established a prima facie case for Abuse of Process.” Our de

novo review of the record leads us to the same conclusion as the trial court: Spellman’s

anti-SLAPP motion was properly granted.

       1. Standard of Review

       Courts construe the anti-SLAPP statute broadly to protect the constitutional rights

of petition and free speech. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local

Hospital Dist. (2006) 39 Cal.4th 192, 199.) In ruling on an anti-SLAPP motion, the trial

court conducts a two-part analysis: the moving party bears the initial burden of

establishing a prima facie case that the plaintiff’s cause of action arose from the

defendant’s actions in furtherance of the rights of petition or free speech. (§ 425.16,

subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

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“‘[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines

whether the anti-SLAPP statute applies . . . .” (Raining Data Corp. v. Barrenechea

(2009) 175 Cal.App.4th 1363, 1369, original italics.) “[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,

original italics.) If the moving party meets its burden, the burden shifts to the plaintiff to

establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1);

Flatley, supra, 39 Cal.4th at p. 314.)

       “‘Review of an order granting or denying a motion to strike under section 425.16

is de novo. [Citation.] We consider “the pleadings, and supporting and opposing

affidavits . . . upon which the liability or defense is based.” [Citation.] However, we

neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept

as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s

evidence only to determine if it has defeated that submitted by the plaintiff as a matter of

law.”’” (Flatley, supra, 39 Cal.4th at pp. 325-326.)

       2. Analysis

       Daniel has not disputed on appeal that his cause of action against Spellman arises

from actions in furtherance of her right of petition—properly so, given that he conceded

the issue below. Daniel’s abuse of process claim is based on Spellman’s petition for a

restraining order. “‘Filing a lawsuit is an act in furtherance of the constitutional right of

petition, regardless of whether it has merit.’” (Trapp v. Naiman (2013) 218 Cal.App.4th

113, 120 [Fourth Dist., Div. Two].) The first prong of the anti-SLAPP analysis,

                                              6
therefore, is satisfied, and we turn to whether Daniel established a probability that he

would prevail on the merits.

       Daniel argues on appeal that he “established a prima facie case for Abuse of

Process,” pointing to evidence that he contends satisfies the elements of an abuse of

process cause of action. He ignores, however, the trial court’s finding that the litigation

privilege applies and precludes any possibility, let alone probability, that he would

prevail on the merits, no matter whether he could otherwise prove the elements of an

abuse of process claim.

       The trial court was correct that Daniel’s claim for abuse of process is barred by the

litigation privilege. The litigation privilege, codified at Civil Code section 47, defines a

“privileged publication or broadcast” to include one made in any “judicial proceeding,”

with certain exceptions not relevant here. (Civil Code, § 47, subd. (b)(1).) “‘The

litigation privilege under section 47 is “‘an “absolute” privilege, and it bars all tort causes

of action except a claim of malicious prosecution.’ [Citation.]” [Citation] . . . [¶] The

privilege in section 47 is ‘relevant to the second step in the anti-SLAPP analysis in that it

may present a substantive defense plaintiff must overcome to demonstrate a probability

of prevailing. [Citations.]” [Citation.]’” (JSJ Limited Partnership v. Mehrban (2012)

205 Cal.App.4th 1512, 1522 (JSJ Limited Partnership).)

       Nothing in the record provides any support for the proposition that the litigation

privilege might not apply here. To the contrary, because Spellman is being sued for

filing her petition for a restraining order against Daniels, and her purported conduct

during that litigation, “‘the litigation privilege . . . forecloses the pursuit of’ the abuse of

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process cause of action.” (JSJ Limited Partnership, supra, 205 Cal.App.4th at p. 1523.)

Accordingly, Daniels failed to carry his burden of showing a probability of success on his

abuse of process claim, and Spellman’s anti-SLAPP motion was properly granted.

                                     III. DISPOSITION

      Daniel’s purported appeal from the order denying his peremptory challenge to the

trial judge is dismissed. The trial court’s order with respect to Spellman’s anti-SLAPP

motion is affirmed. Spellman is awarded her costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               HOLLENHORST
                                                                                      J.
We concur:


      RAMIREZ
                              P.J.

      KING
                                J.




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