Thuy Pham v. Nguyen

THUY PHAM, Plaintiff and Respondent, v. OLIVIA NGUYEN et al., Defendant and Appellant.

H047433

California Court of Appeals, Sixth District

April 13, 2022

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. 17CV311664)

BAMATTRE-MANOUKIAN, J.

Olivia Nguyen (Olivia) and An Nguyen (An), defendants in this civil action, were married for at least 10 years.^[1] Olivia filed a petition for dissolution in or about October 2001 in the Superior Court, County of Orange (the Olivia/An proceeding). A judgment of dissolution on reserved issues was entered in that proceeding on July 18, 2007.

On a date not disclosed in the record, An married plaintiff Thuy Pham (Pham). In or about September 2007, An filed a dissolution proceeding relative to that second marriage in the Superior Court, County of Orange. A judgment of dissolution was filed in November 2007, but was later set aside, except as to status. In 2010, Pham filed a second dissolution proceeding involving An in the Superior Court County of Santa Clara (the Pham/An proceeding). The present civil action, also in the Superior Court, County of Santa Clara, was filed by Pham against An and Olivia, and relates to an alleged fraudulent transfer of property in 2014.

In this civil action, Pham challenges a 2014 real estate transaction involving a vacation home jointly owned by An and Olivia located on N. Shore Drive in Fawnskin, California (Fawnskin Property or Fawnskin Home). In the 2007 dissolution judgment An and Olivia had agreed that the Fawnskin Home would be sold with the proceeds divided equally. That property was never sold. In 2014, An transferred his interest in the Fawnskin Home to Olivia through a stipulation and order (the 2014 Stipulated Order) filed in the Olivia/An proceeding. That 2014 Stipulated Order modified their 2007 judgment. Pham alleged that the real estate transaction, which was completed by recording a June 13, 2014 interspousal deed transfer, was a fraudulent transfer under the Uniform Voidable Transactions Act (UVTA), Civil Code section 3439 et seq., formerly known as the Uniform Fraudulent Transfer Act (see Stats. 2015, ch 44, § 3).

Olivia filed a special motion to strike Pham's first amended complaint under Code of Civil Procedure section 425.16 (special motion to strike, or anti-SLAPP motion).^[2] An anti-SLAPP motion is resolved through a two-step process in which the court decides (1) if the defendant has shown that the challenged claim arose out of his or her constitutionally protected petitioning or speech activity; and (2) assuming the defendant has met his or her burden to show he or she was engaged in protected activity, whether the plaintiff has established a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) In addressing this second step, the plaintiff is required to show that his or her claim has "at least 'minimal merit.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).)

Olivia contended, inter alia, that Pham's entire action was barred under the anti-SLAPP statute because the suit was based upon Olivia's exercise of her constitutionally protected activity of participating in court proceedings, namely, her negotiation, execution, and submission to the court for its entry of the 2014 Stipulated Order. The court below disagreed, concluding that Olivia had failed to meet her initial burden of showing that Pham's claims arose out of Olivia's constitutionally protected activity. Because of this ruling, the court denied Olivia's anti-SLAPP motion without considering the second step of whether Pham had shown that her claims had "at least 'minimal merit.'" (Park, supra, 2 Cal.5th at p. 1061.) Additionally, because of its denial of the anti-SLAPP motion, the court denied as moot Pham's concurrent motion to lift the statutory stay upon discovery. (See § 425.16, subd. (g).)

Olivia appeals the order denying the anti-SLAPP motion. We agree with Olivia that she met her burden of showing that the claims alleged in the first amended complaint arose out of her constitutionally protected activity. The trial court should have therefore considered, as the second step in evaluating an anti-SLAPP motion, i.e., whether Pham had established a probability of prevailing on her claims. Therefore, the case must be reversed and remanded for further proceedings on the anti-SLAPP motion.

Olivia's position, asserted below and on appeal, was that the litigation privilege under Civil Code section 47, subdivision (b) (Civ. Code, § 47(b)) constituted an absolute bar to Pham's claims, and therefore Pham could not establish a probability that she would prevail. As part of the second step of the analysis of the anti-SLAPP motion, this privilege issue is one to be decided by the trial court. But because it is a question of law, and because the parties urge that we do so, we will address the litigation privilege here to provide guidance to the court on remand. Our conclusion is that, if the trial court finds that Pham's claims based upon the fraudulent transfer of assets have "at least 'minimal merit'" (Park, supra, 2 Cal.5th at p. 1061), the litigation privilege will not act as a bar to her claims against Olivia under the second step of the analysis of Olivia's anti-SLAPP motion.

We will direct that the trial court, on remand in addressing the anti-SLAPP motion, first consider Pham's motion to lift the discovery stay. Then, after receiving and considering further briefing, evidence, and argument as it deems appropriate, the court shall decide whether Pham has established, under the second step, a probability of prevailing on her claims.

I. PROCEDURAL HISTORY

A. The First Amended Complaint

Pham filed suit on or about June 12, 2017.

On January 23, 2019, Pham filed an unverified first amended complaint (hereafter, the Complaint) against An and Olivia. Pham alleged 10 purported causes of action, namely (1) breach of fiduciary duty (against An only), (2) violation of Family Code section 2040, (3) violation of court orders, (4) fraudulent transfer of assets with actual fraudulent intent (5) constructive fraudulent transfer of assets, (6) civil conspiracy, (7) aiding and abetting, (8) action on judgment (against An only); (9) creditor's suit, and (10) constructive trust.

In the general allegations of the Complaint common to each of the 10 causes of action, Pham alleged, among other things, ^[3] that An and Olivia were previously married; Olivia filed for dissolution of the marriage in October 2001 (i.e., the Olivia/An proceeding); a judgment, status only, was filed June 25, 2004; a judgment of dissolution of the assets and liabilities was entered on July 18, 2007; that judgment included a provision that the parties agreed to sell the Fawnskin Home, and divide the proceeds; that vacation home was never sold, and it remained jointly owned by An and Olivia; and the Fawnskin Home had an estimated value of $3, 666, 536.

Pham married An, who thereafter filed a dissolution proceeding in or about September 2007. Their judgment of dissolution filed November 20, 2007, was set aside (except as to the issue of status) by a stipulation and order on August 26, 2009. Property issues remained, but the court dismissed the proceeding. Thereafter, in or about April 2010, An filed another dissolution proceeding in Ho Chi Minh City, Vietnam, which was still pending (the Vietnam proceeding).

In July 2010, Pham filed a new dissolution proceeding, i.e., the Pham/An proceeding. On December 7, 2011, Pham and An resolved all issues of support, division of assets, and division of liabilities in a stipulation and order entered in that proceeding. An agreed to obtain a court order in the Vietnam proceeding consistent with the parties' settlement.^[4] An never intended to comply, and did not comply, with the December 7, 2011 stipulation and order, and continued to maintain the Vietnam proceeding in derogation of the parties' agreement.

Thereafter, Pham filed a motion below in the Pham/An proceeding seeking various relief, including enforcement of the December 7, 2011 stipulation and order and the issuance of temporary restraining orders relative to California realty owned by An. On March 26, 2014, the court issued an order (the March 26, 2014 Order) providing, inter alia, that the "Automatic Temporary Restraining Orders" (ATROs) were reinstated against An, and that An was restrained from transferring, encumbering, hypothecating, concealing, or in any way disposing of any legal or equitable interest in three properties: the Fawnskin Property, a home located in Newport Coast, and a home located in Huntington Beach.

An violated the March 26, 2014 Order and ATROs by subsequently transferring his one-half interest in the Fawnskin Property to Olivia.^[5] Pham alleged in the Complaint that An devised a scheme to defraud her and to prevent enforcement of the March 26, 2014 Order through an agreement with Olivia for the transfer of An's one-half interest in the Fawnskin Property in exchange for Olivia's release of her interest in furniture and personal property located on Pelican Drive in Newport Coast, California (Pelican Drive Property).^[6]An and Olivia "fraudulently claimed this division was not clearly divided in the prior July 18, 2007 Judgment, even though almost 7 years had passed since . . . they originally agreed to divide the proceeds after the sale of the Fawnskin Home." An's transfer of his interest in the Fawnskin Property occurred on June 13, 2014, by an interspousal deed transfer.

Pham alleged that in the Pham/An proceeding, the court later issued a bench warrant for An's arrest, ordered (in four separate orders) that An pay Pham sanctions/attorney fees totaling...