Filed 8/26/20 Martin v. Smith CA1/5
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.


             THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




KAREN CALDWELL MARTIN,
         Plaintiff and Respondent,                                    A157129
v.
                                                                      (Alameda County
BELINDA LATRICE SMITH et al.,
                                                                      Super. Ct. No. RG08393815)
         Defendants and Appellants;
CHICAGO TITLE COMPANY, et al.,
         Defendants.


         Karen Caldwell Martin (plaintiff) sued notary Belinda Latrice Smith
and real estate agent Jacob Benjamin Winding (collectively, defendants) for
fraud and aiding and abetting fraud, alleging they duped her into
relinquishing title to—and equity in—her home.
         Defendants filed a special motion to strike in propria persona (Code
Civ. Proc., § 425.16).1 The trial court denied the motion. It concluded
plaintiff’s claims did not arise out of protected activity; it also determined the
motion was frivolous and awarded plaintiff attorney fees.



         1   Undesignated statutory references are to the Code of Civil Procedure.


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      Defendants appeal in propria persona. We affirm. We deny plaintiff’s
request for an unspecified amount of monetary sanctions for filing a frivolous
appeal, but conclude she is entitled to attorney fees and costs incurred on
appeal, the amount of which shall be determined by the trial court.
              FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff owned her Oakland residence. When plaintiff fell behind on
her mortgage payments after her husband died, she sought out the help of
Winding, then a real estate agent. Winding suggested plaintiff add the name
of his friend, Vanessa King, to the title so plaintiff could refinance her
mortgage using King’s credit rating. Winding promised the transaction
would preserve plaintiff’s equity in her home.
      Winding’s wife, Smith, is a notary. Smith assured plaintiff that she
was “just adding . . . King to [the] title.” Instead—and unbeknownst to
plaintiff—Smith had plaintiff “sign a deed that transferred 100% of [the]
title” to King. Smith did not give plaintiff a copy of the deed. King took out a
loan on the property but made no payments. The home was sold at
foreclosure. Plaintiff lost $200,000 in equity.
      Plaintiff filed a lawsuit against defendants and others. As relevant
here, the operative first amended complaint alleged claims against
defendants for fraud and aiding and abetting fraud. Plaintiff alleged
defendants promised to help her preserve the equity in her home, but instead
tricked her into giving King the title.
      Defendants filed a special motion to strike in propria persona. They
argued plaintiff’s claims arose out of protected activity under section 425.16,
subdivisions (e)(1) and (2) because the statements at issue were made during
an “official proceeding authorized by law.” According to defendants, the




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complaint’s allegations were based on conduct or statements made during the
“negotiation of a stipulated settlement” or in anticipation of litigation.
        Plaintiff opposed the motion, arguing defendants’ misrepresentations
were not protected speech under section 425.16. She sought attorney fees on
the grounds the motion was frivolous. The trial court agreed. It concluded
defendants did not demonstrate the lawsuit arose out of protected activity.
As the court explained, plaintiff’s claims did not arise from “protected First
Amendment activity taking place in an official proceeding or in connection
with an issue being reviewed by an official proceeding.” The court also
determined the motion was frivolous and awarded plaintiff $9,900 in attorney
fees.
                                   DISCUSSION
        “ ‘Section 425.16, subdivision (b)(1) requires the trial court to engage in
a two-step process when determining whether to grant a motion to strike.
First, it decides whether defendant has made a prima facie showing that the
acts of which plaintiff complains were taken in furtherance of defendant’s
constitutional rights of petition or free speech in connection with a public
issue. If defendant satisfies this threshold burden, plaintiff must then
demonstrate a reasonable probability of prevailing on the merits. On appeal,
we review these legal issues de novo.’ ” (Workman v. Colichman (2019)
33 Cal.App.5th 1039, 1047 (Workman).) “ ‘If defendant fails to meet its
burden, we need not assess plaintiff’s likelihood of prevailing on the merits.’ ”
(Id. at p. 1047.)
        “A trial court is required to award costs and attorney fees to a plaintiff
who prevails in defending against an anti-SLAPP motion ‘pursuant to
[s]ection 128.5’ upon a finding that the motion was ‘frivolous or . . . solely
intended to cause unnecessary delay.’ [¶] . . . [¶] A trial court’s ruling



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ordering attorney fees for a frivolous anti-SLAPP motion is usually reviewed
under the abuse of discretion standard.” (Rudisill v. California Coastal
Com. (2019) 35 Cal.App.5th 1062, 1070.)
                                         I.
             Plaintiff’s Claims Did Not Arise out of Protected Activity
       The trial court concluded plaintiff’s claims did not arise out of protected
activity under section 425.16, subdivision (e). The court was right. Winding’s
misrepresentations are not protected speech merely because he made them
while working as a licensed real estate agent. Nor were defendants’ alleged
lies made before an “official proceeding authorized by law” or about an issue
under consideration in an official proceeding under section 425.16,
subdivisions (e)(1) and (2). (Talega Maintenance Corp. v. Standard Pacific
Corp. (2014) 225 Cal.App.4th 722, 730, 732 [homeowners association board
meetings are not “official proceedings” under the statute; “nongovernmental
proceedings must have a strong connection to governmental proceedings to
qualify as ‘official’ ”].)
       Defendants’ misrepresentations were not made on an issue of public
interest under section 425.16, subdivision (e)(4). (Workman, supra,
33 Cal.App.5th at p. 1048 [statements made during private real estate
dispute did not involve issue of public interest].) Defendants’ statements
do not concern an issue of public interest merely because the real estate
industry is “ ‘heavily regulated’ ” (ibid.) or “ ‘because millions of Americans
live in houses and buy and sell houses.’ ” (Id. at p. 1042.) A generalized
interest in the professional competence of real estate agents and notaries
does not transform this private real estate transaction into an issue of public
interest. (Id. at p. 1048; Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 623–626 [misrepresentations were not protected speech where



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defendants “failed to suggest anything more than the most attenuated
connection between the [statement] and a matter of public importance”].)
That Winding apparently lost his real estate license after plaintiff filed the
lawsuit does not demonstrate his misrepresentations to plaintiff concern an
issue of public interest.
      Defendants have not satisfied their threshold burden to demonstrate
plaintiff’s claims arose out of protected speech. “We therefore do not address
the second prong of the test.” (Workman, supra, 33 Cal.App.5th at p. 1047.)
Defendants’ other arguments have been considered and merit no further
consideration. (Lyons v. Santa Barbara County Sheriff’s Office (2014)
231 Cal.App.4th 1499, 1506.)
                                        II.
                  Defendants’ Motion to Strike Was Frivolous
      The trial court concluded defendants’ special motion to strike was
frivolous under section 425.16, subdivision (c). We agree. Defendants’
motion was “totally and completely without merit.” (§ 128.5, subd. (b)(2).)
“Defendants did not meet the threshold burden of demonstrating that
the communication[s] at issue in the complaint [were] made in furtherance
of [their] constitutional rights of free speech . . . . Moreover, no case
supports defendants’ claim that communications” made during private
conversations—when a real estate agent and notary dupe a homeowner into
relinquishing title to, and equity in, her home—are made before an official
proceeding authorized by law or on an issue of public interest. (Workman,
supra, 33 Cal.App.5th at p. 1056.) “[A]pplication of the anti-SLAPP statute
to these facts would be ‘absurd.’ Thus, the . . . motion was frivolous.” (Ibid.)
Defendants’ cursory argument to the contrary is not persuasive.




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                                       III.
                  No Sanctions for Filing a Frivolous Appeal
      Plaintiff seeks an unspecified amount of sanctions against defendants
for filing frivolous appeal under California Rules of Court, rule 8.276(a)(1).
We deny the request because plaintiff “has not filed a motion for sanctions
along with a declaration supporting the amount . . . sought.” (Saltonstall v.
City of Sacramento (2014) 231 Cal.App.4th 837, 858.) Plaintiff, however, is
entitled to reasonable attorney fees incurred on appeal, the amount of which
is to be determined by the trial court. (Dowling v. Zimmerman (2001)
85 Cal.App.4th 1400, 1426; Cal. Rules of Court, rule 3.1702(c) [describing
procedure for applying for attorney fees incurred on appeal].)
                                 DISPOSITION
      The order denying the special motion to strike is affirmed. Plaintiff’s
request for monetary sanctions against defendants for pursuing a frivolous
appeal is denied. Plaintiff is entitled to costs on appeal (Cal. Rules of Court,
rule 8.278(a)(2)) and to an award of attorney fees incurred on appeal, the
amounts of which shall be determined by the trial court.




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                                _________________________
                                Jones, P. J.


WE CONCUR:


_________________________
Needham, J.


_________________________
Burns, J.




A157129




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