Filed 6/26/14 Gilroy v. Gilroy CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


JULIA Y. S. GILROY,                                                      B243035

         Cross-complainant and Respondent,                               (Los Angeles County
                                                                         Super. Ct. No. BC466292)
         v.

TIMOTHY A. GILROY,

         Cross-defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Elizabeth A. White, Judge. Affirmed.
         Dennis E. Braun for Cross-defendant and Appellant.
         Julia Yoni Stone Gilroy, in pro. per., for Cross-complainant and Respondent.
                                        _________________________
          Appellant Timothy Gilroy1 responded to a verified cross-complaint filed by his
former partner Julia Gilroy by filing a special motion to strike under Code of Civil
Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation)
statute.2 The trial court granted the special motion to strike as to three causes of action
alleged in the verified cross-complaint, and denied the special motion to strike the causes
of action alleging fraud in the inducement (second cause of action) and unjust enrichment
(third cause of action). Timothy appeals, contending the acts upon which these causes of
action are based constitute activity protected by the anti-SLAPP statute, and the trial
court erred in ruling those acts were merely incidental. We conclude the second and third
causes of action are not based upon conduct protected by the anti-SLAPP statute, thus we
affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND
          Timothy and Julia met in 1995 and had a long-term relationship. When their
relationship ended, a dispute arose regarding the ownership of their single-family
residence and other personal property.
          In June 2010, Timothy filed a petition for marriage dissolution, in which he also
sought and obtained a property restraining order. (Gilroy v. Gilroy (Super. Ct. L.A.
County, 2010, No. BD526798)) (marriage dissolution action). In July 2011, the parties
agreed that there was no marriage, and the court ordered the property restraining order
dissolved. The parties both filed civil actions.
          1. Gilroy v. Gilroy (Super Ct. L.A. County, 2011, No. BC466292)
          In July 2011, Timothy filed a civil action against Julia. Neither the complaint nor
the first amended complaint is in the record. In April 2012, Julia filed the verified cross-
complaint at issue in this appeal.



1
        For the sake of clarity and convenience, we sometimes refer to the parties by their
first names. No disrespect is intended.
2
          All undesignated statutory references are to the Code of Civil Procedure.

                                               2
       2. Gilroy v. Gilroy (Super Ct. L.A. County, 2011, No. BC473279)
       In November 2011, before Julia filed her verified cross-complaint, she filed a civil
action against Timothy (dismissed civil action).3 The complaint alleged causes of action
for fraud in the inducement, unjust enrichment, fraud (deceit – intentional
misrepresentation of material fact), intentional infliction of emotional distress, negligent
infliction of emotional distress, and partition of real property.
              a. Allegations
       The first two causes of action (fraud in the inducement and unjust enrichment)
alleged that Timothy convinced Julia to act as if they were married, and Timothy induced
her to add his name to title to her home, which at the time was her sole and separate
property, and to add his name to her bank accounts. Timothy also allegedly induced Julia
to pay all the living expenses and place her retirement funds into his retirement account.
       In the third cause of action (intentional misrepresentation of fact), the complaint
alleged Timothy filed a fraudulent action for dissolution of marriage and misrepresented
facts to the court. The fourth and fifth causes of action for intentional and negligent
infliction of emotional distress alleged that in filing the marriage dissolution action,
Timothy knew it would ruin Julia financially, and his actions intentionally or negligently
caused her emotional distress.
       The sixth cause of action sought partition by sale of the single-family residence.




3
       On appeal, Timothy filed a request for judicial notice of 13 documents filed in the
dismissed civil action (BC473279). (Evid. Code, § 452, subd. (d).) Julia opposed the
motion. We deferred consideration of the request pending a determination of the appeal
on its merits. Neither party presented these 13 documents to the trial court in connection
with the anti-SLAPP motion. Generally, documents not before the trial court are beyond
the scope of appellate review. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996)
14 Cal.4th 434, 444, fn. 3.) Although no exceptional circumstances are present here to
deviate from the general rule, we take judicial notice that these documents exist in the
court files and records for purposes of presenting the background giving rise to the issues
presented on appeal.

                                              3
              b.     Special Motion to Strike, Voluntary Dismissal
       In response to the complaint, Timothy filed a special motion to strike all of the
causes of action except the sixth cause of action. He argued the complaint arose from his
petitioning activity in filing the marriage dissolution action (BD526798) and civil action
(BC466292). Timothy also argued Julia could not demonstrate a probability of
prevailing on the merits, and he asserted the litigation privilege as an affirmative defense
(Civ. Code, § 47, subd. (b)).
       Julia did not oppose the motion. Instead, before the hearing on the anti-SLAPP
motion, she dismissed her complaint.
       As noted, a month later, Julia filed the verified cross-complaint at issue in this
appeal.
              c.     Attorney Fees
       Timothy sought and was awarded $9,350 in attorney fees as the prevailing party.
(§ 425.16, subd. (c)(1).)
       3. Special Motion to Strike Verified Cross-Complaint (Case No. BC466292)
       Julia’s verified cross-complaint is similar to the complaint she filed and dismissed.
The causes of action, however, were reorganized, and the partition cause of action is
alleged first. At issue are the second and third causes of action, alleging fraud in the
inducement and unjust enrichment.
       The second cause of action incorporates the general allegations, which include the
filing of the fraudulent marriage dissolution action. Timothy allegedly made false
misrepresentations to Julia, which induced her to add his name to the title of her home, to
add his name to her bank accounts, and to place her retirement funds into his retirement
plan. Additionally, when Julia sought to separate the parties’ household, and offered to
purchase Timothy’s share of the equity in their home, Timothy filed a fraudulent action
for dissolution of marriage and had her bank accounts frozen.
       The third cause of action is based upon the equitable remedy of unjust enrichment
and incorporates the general allegations. It is alleged that Timothy, through his wrongful
and unlawful conduct, has reaped substantial profits from the monies and real property

                                              4
belonging to Julia, and in doing so has caused her to suffer substantial monetary losses.
Timothy allegedly has received the “benefit of wrongfully and improperly withholding
said monies and real property” from Julia.
       Timothy filed a similar special motion to strike the second and third causes of
action.4 He contended the second and third causes of action arise from petitioning
activity, Julia could not meet her burden to demonstrate a probability of prevailing on the
merits, and he asserted the litigation privilege as an affirmative defense. Timothy states
in his appellate brief that Julia admitted the reason she filed the verified cross-complaint
is to “claim that [Appellant’s] petitioning and litigation activities were fraudulent.” The
question of subjective intent is not relevant under the anti-SLAPP statute. (See City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 74, 78.)
       Julia filed an opposition, but she did not present any evidentiary submissions to
support a showing of merit.5
       4. Denial of Special Motion to Strike (Second and Third Causes of Action)
       The trial court denied the motion to strike the second (fraud in inducement) and
third (unjust enrichment) causes of action in the verified cross-complaint, concluding
these causes of action did not arise from petitioning activity.
       Timothy timely appealed from the order denying the special motion to strike.6




4
       The trial court granted the special motion to strike the fourth (deceit – intentional
misrepresentation of fact), fifth (intentional infliction of emotional distress), and sixth
(negligent infliction of emotional distress) causes of action in the verified cross-
complaint and awarded Timothy $3,060 in attorney fees.
5
       In her opposition, Julia made a formal request for judicial notice of the files and
records in the marriage dissolution action (BD526798) and the dismissed civil action
(BC473279). The trial court denied the request because Julia failed to specify the records
or submit a copy of the records.
6
       The order is appealable. (§§ 425.16, subd. (i); 904.1, subd. (a)(1)(13).)

                                              5
                                      CONTENTIONS
       Timothy presents five issues to the court with one heading to support his legal
argument that the second and third causes of action arise from activity protected by the
anti-SLAPP statute, and Julia did not demonstrate a probability of prevailing on the
merits. This legal argument, however, does not correspond to the stated issues. (See
Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must “[s]tate each point under a separate
heading . . . and support each point by argument and . . . by citation of authority”].) Two
issues address whether the trial court erred by not taking judicial notice of the files and
attorney fees award in the dismissed civil action (BC473279). Three issues relate to the
merits of the trial court’s order, principally focusing on the trial court’s error in
concluding that any alleged petitioning activity in the second and third causes of action
was merely incidental.7
                                        DISCUSSION
    1. The Trial Court Did Not Err in Denying the Request for Judicial Notice
       Timothy contends the trial court erred in denying the request to take judicial notice
of the court file in the dismissed civil action (BC473279), which included the minute
order and hearing transcript (incorporated into the minute order) awarding him attorney
fees.8 He argues that had the trial court taken judicial notice, it would also have granted
the special motion to strike the second and third causes of action alleged in the verified
cross-complaint because these causes of action are identical to the causes of action


7
       Although not identified as an issue, or presented as a separate heading in his
opening brief, Timothy also attacks the sufficiency of the allegations in the second and
third causes of action, and argues these causes of action are time-barred. We need not
address these issues because, as stated post, Timothy did not meet his initial burden of
establishing that these causes of action arise from petitioning activity.
8
        Timothy also contends that the trial court erred in failing to take judicial notice of
the records and files in the marriage dissolution action (BD526798). Timothy did not
request judicial notice of any specific documents in that case, or present the documents to
the trial court. Timothy also did not present these documents to this court. Thus, any
argument on this issue has been forfeited.

                                               6
alleged in Julia’s dismissed civil action (BC473279). Stated another way, Timothy
maintains the award of attorney fees constitutes a ruling on the merits of the special
motion to strike that should also apply here, and therefore the trial court’s order denying
the motion (as to the second and third causes of action) is erroneous and inconsistent with
the order in the dismissed civil action.
       “While we may take judicial notice of the existence of judicial opinions, court
documents, and verdicts reached, we cannot take judicial notice of the truth of hearsay
statements in other decisions or court files [citation], or of the truth of factual findings
made in another action [citations].” (Johnson & Johnson v. Superior Court (2011)
192 Cal.App.4th 757, 768; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.)
Thus, we may take judicial notice of: (1) the minute order in which the trial court
awarded Timothy $9,350 in attorney fees; (2) the allegations in the complaint filed in the
dismissed civil action (BC473279); and (3) the arguments raised in the special motion to
strike. We cannot, however, take judicial notice of the trial court’s factual determination
underpinning the attorney fees award because to do so would be tantamount to taking
judicial notice that the court’s determination must necessarily have been correct, and that
the court is “infallible.” (See Sosinsky v. Grant, supra, at p. 1568.)9
       Timothy’s argument “appears to improperly merge the doctrine of judicial notice
with the doctrines of res judicata and collateral estoppel. Whether a factual finding is
true is a different question than whether the truth of that factual finding may or may not
be subsequently litigated a second time.” (Sosinsky v. Grant, supra, 6 Cal.App.4th at
p. 1569.) The trial court properly declined to take judicial notice based on the procedural
defects in both parties’ requests. As analyzed here, the trial court also could not have
taken judicial notice of the truth of the factual findings associated with awarding Timothy



9
       Timothy’s request for judicial notice includes the reporter’s transcript of the
hearing awarding him attorney fees. We take judicial notice the hearing occurred.
Timothy, however, does not specify what, if any “indisputable facts” from the hearing
may be accepted as true.

                                               7
attorney fees as the prevailing party on his special motion to strike the complaint filed in
the dismissed civil action (BC473279).
   2. Section 425.16 Legal Principles
       Section 425.16, subdivision (b)(1) provides: “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.” The analysis of an anti-SLAPP motion brought under section
425.16, subdivision (b)(1) involves two steps. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one
‘arising from’ protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a
showing has been made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (City of Cotati v. Cashman, supra, 29 Cal.4th at
p. 76.) “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 being stricken under the statute.” (Navellier v. Sletten (2002)
29 Cal.4th 82, 89.)
       Review of an order granting or denying an anti-SLAPP motion is de novo. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) 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).) We do not weigh credibility nor compare the
weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3.)
       Guided by these principles, we turn to the issues presented herein. As shall be
discussed, Timothy failed to meet his burden of demonstrating that the second and third
causes of action alleged in the verified cross-complaint arise from protected speech or
petitioning activity.


                                               8
   3. Petitioning Activity Has Not Been Established (First Prong)
       Timothy bears the initial burden of establishing the first prong by demonstrating
that the second and third causes of action alleged in the verified cross-complaint arise
from his petitioning activity. (§ 425.16, subd. (b)(1); Peregrine Funding, Inc. v.
Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669.) Section
425.16, subdivision (e) defines acts in furtherance of the rights of petition and free speech
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,” or in
connection with an issue under consideration or review by such bodies or officials.
       In analyzing the first prong, we focus on the substance of the lawsuit. “A cause of
action does not ‘arise from’ protected activity simply because it is filed after protected
activity took place. [Citation.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter &
Hampton LLP, supra, 133 Cal.App.4th at p. 669.) Rather, our focus is on whether the
causes of action subject to the special motion to strike are based on an act in furtherance
of Timothy’s petitioning activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)
In deciding this issue, we look to the allegations in the verified cross-complaint.
(§ 425.16, subd. (b)(2).) Although we are required to broadly construe the anti-SLAPP
statute (§ 425.16, subd. (a)), we must examine the verified cross-complaint in a fair and
commonsense manner.
       While it is clear that several of the causes of action alleged in the verified cross-
complaint were properly stricken as arising from the filing of the marriage dissolution
action, our focus is on the fraudulent conduct alleged in the second and third causes of
action. “ ‘Fraud in the inducement . . . occurs when “ ‘the promisor knows what [s]he is
signing but [her] consent is induced by fraud, mutual assent is present and a contract is
formed, which, by reason of the fraud, is voidable.’ ” ’ ” (Duick v. Toyota Motor Sales,
U.S.A., Inc. (2011) 198 Cal.App.4th 1316, 1320-1321.) Unjust enrichment is “receipt of
a benefit and unjust retention of the benefit at the expense of another.” (Lectrodryer v.
SeouleBank (2000) 77 Cal.App.4th 723, 726.)


                                              9
       The causes of action in the verified cross-complaint alleging fraud in the
inducement and unjust enrichment do not arise from petitioning activity. As an initial
matter, the fact that a cross-complaint was filed in this action, or the cross-complaint was
triggered by the filing of Timothy’s complaint does not mean these claims arise from
petitioning activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) Focusing on
the allegations of wrongful conduct, Timothy allegedly made false misrepresentations,
inducing Julia to put his name on the title of her home, add his name to her bank
accounts, and place her retirement funds into his retirement account. As a result of this
fraudulent conduct, Timothy has reaped substantial profits from the monies and real
property. These allegations are unrelated to petitioning activity, that is, the filing of the
fraudulent marriage dissolution action.
       As Timothy points out, the second and third causes of action incorporate by
reference general allegations that he filed a fraudulent marriage dissolution action.
Additionally, the cause of action for fraud in the inducement specifically alleged that
Timothy filed a fraudulent action for dissolution of marriage in response to Julia’s efforts
to separate the household and purchase his equity in their home. We agree with the trial
court that these allegations are merely incidental to the fraudulent conduct alleged in the
second and third causes of action, which is unrelated to any petitioning activity.
       The mere mention of the marriage dissolution action does not subject these causes
of action to a special motion to strike because the alleged conduct did not arise from that
petitioning activity. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90,
103 [“[t]he ‘principal thrust or gravamen’ of the claim determines whether section 425.16
applies”].) As noted, the filing of the marriage dissolution action is not the basis for
liability in the second and third causes of action. (See Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1183 [“For purposes of anti-SLAPP analysis, however, an alleged
act is incidental to a claim, and incidental to any unprotected activity on which the claim
is based, only if the act is not alleged to be the basis for liability.”].) Unlike the
complaint in Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1544-1545, 1550-1551, in which protected acts were specifically

                                               10
alleged to be the basis of the claim against the defendant for breach of his fiduciary
duties, the filing of the marriage dissolution action is not alleged as a basis for Julia’s
claims for fraudulent inducement or unjust enrichment. Rather, these causes of action are
based on the allegedly fraudulent conduct during the parties’ relationship in which Julia
alleges she was induced to part with her property, money, and retirement savings before
the parties separated and before the property dispute arose that resulted in litigation.
Thus, the trial court did not err in denying the special motion to strike these causes of
action.
          Having concluded Timothy did not meet his burden, it is unnecessary for us to
address whether Julia has made a prima facie showing that she is likely to prevail on
these causes of action at trial (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 80-81),
or whether these causes of action are barred by the litigation privilege, or any other
affirmative defense.




                                              11
                                      DISPOSITION
       The order denying appellant Timothy Gilroy’s anti-SLAPP motion (Code Civ.
Proc., § 425.16) to strike the second (fraud in the inducement) and third (unjust
enrichment) causes of action alleged in the verified cross-complaint is affirmed.
Appellant to bear respondent Julia Gilroy’s costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




              KLEIN, P. J.




              KITCHING, J.




                                            12
