Opinion
E065888
04-30-2018
DELORES RAMIREZ, Cross-complainant and Appellant, v. DIANNE SIMPSON, Cross-defendant and Respondent.
Ritchie, Klinkert & Gutierrez, James E. Klinkert and Paul J. Gutierrez for Cross-complainant and Appellant. Law Office of Glenn E. Stern, Glenn E. Stern, Law Office of Richard Coberly and Richard L. Coberly for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1508904) OPINION APPEAL from the Superior Court of San Bernardino County. Donna G. Garza, Judge. Affirmed in part; reversed in part. Ritchie, Klinkert & Gutierrez, James E. Klinkert and Paul J. Gutierrez for Cross-complainant and Appellant. Law Office of Glenn E. Stern, Glenn E. Stern, Law Office of Richard Coberly and Richard L. Coberly for Cross-defendant and Respondent.
Cross-defendant and respondent Dianne Simpson (Simpson) and cross-complainant and appellant Delores Ramirez (Ramirez) were co-owners of a salon known as the 9th Street Hair Station, Inc. (the Salon), in Upland. Simpson and Ramirez each own 50 percent of the Salon. The Salon is a California corporation. Simpson, in her individual capacity and derivatively on behalf of the Salon, sued Ramirez. Simpson's lawsuit involved allegations of Ramirez misappropriating approximately $1,055.74 of the Salon's money.
In the complaint, Simpson alleges Ramirez misappropriated $1,055.74. In Simpson's anti-SLAPP motion, she alleges Ramirez misappropriated "at least $1,493.01."
Ramirez filed a cross-complaint that included causes of action for (1) slander; (2) abuse of process; (3) breach of fiduciary duty; (4) constructive fraud; (5) an accounting; (6) the imposition of a constructive trust; and (7) injunctive relief. The trial court granted Simpson's anti-SLAPP motion as to all the causes of action in Ramirez's cross-complaint. (Code Civ. Proc., § 425.16.) Ramirez contends the trial court erred by granting the anti-SLAPP motion. We affirm in part and reverse in part.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
Simpson, as an individual and derivatively on behalf of the Salon, sued Ramirez. Simpson brought 11 causes of action: (1) breach of fiduciary duty; (2) abuse of control; (3) gross mismanagement; (4) waste of corporate assets; (5) conversion; (6) embezzlement; (7) fraud/concealment; (8) constructive trust; (9) unjust enrichment; (10) accounting; and (11) involuntary dissolution.
Simpson alleged she and Ramirez were co-owners of the Salon, each sharing a 50 percent interest. Beginning in July 2014, Ramirez used Salon funds to purchase hair products for her personal use. For example, on July 18, 2014, Ramirez used the Salon's credit card to purchase $172.84 of hair products for her personal use. Five more purchases occurred, creating a total of $1,055.74 in hair products purchased for Ramirez's personal use using the Salon's funds.
On March 28, 2015, Simpson confronted Ramirez regarding the allegedly misappropriated funds. Ramirez told Simpson and hairstylists at the Salon that she would close the Salon, which Ramirez could not do. Employees of the Salon were aware Ramirez was misappropriating funds and suffered low morale as a result of the tension surrounding the issue. Additionally, Simpson and Ramirez had been negotiating a buyout of the Salon. Ramirez offered to pay Simpson $7,000 for Simpson's share of the Salon, but Simpson believed Ramirez undervalued Simpson's share of the Salon.
Simpson sought (1) damages for the breach of fiduciary duty; (2) restitution and disgorgement of all profits and benefits; (3) an injunction preventing Ramirez from accessing the Salon's assets; (4) costs, including attorney's fees; (5) general damages according to proof; (6) special damages according to proof; (7) attorney's fees according to proof; (8) punitive damages; (9) dissolution of the Salon as a corporate entity; and (10) any other proper relief.
B. CROSS-COMPLAINT
Ramirez filed a cross-complaint with seven causes of action: (1) slander; (2) abuse of process; (3) breach of fiduciary duty; (4) constructive fraud; (5) accounting; (6) imposition of a constructive trust; and (7) injunctive relief.
First, in the slander cause of action, Ramirez alleged Simpson "uttered false statements concerning the conduct and character of [Ramirez], including statements accusing [Ramirez] of theft, embezzlement and other crimes, and included such statements as 'you're going to jail.' " The alleged false statements were "uttered in the public business location of [the Salon] where co-workers, customers and other third parties could hear them." Ramirez alleged Simpson's statements were "motivated by oppression and malice, inasmuch as it was accomplished for the purpose of punishing [Ramirez], intimidating [Ramirez] in[to] selling her interest in [the Salon] to [Simpson] at a price below its true value, and harming [Ramirez's] reputation."
Second, in the abuse of process cause of action, Ramirez alleged "Simpson was unhappy with a buy-out offer made by [Ramirez], believing such offer to be too low . . . . [¶] . . . Simpson filed this lawsuit not for any legitimate purpose, but with the ulterior motive of gaining an advantage in the settlement discussions and coercing [Ramirez] into a less favorable bargaining position."
Third, in the breach of fiduciary duty cause of action, Ramirez alleged Simpson had a "duty not to squander corporate assets in an effort to gain an advantage in ongoing buyout negotiations, and not to pursue a frivolous derivative action on behalf of [the Salon]." Ramirez alleged Simpson "breached the fiduciary duties owed to [Ramirez] by squandering corporate assets in an effort to gain an advantage in ongoing buyout negotiations, filing and maintaining this frivolous derivative action on behalf of [the Salon], and otherwise misusing and abusing the power she has [as] an equal shareholder."
Fourth, in the cause of action for constructive fraud, Ramirez incorporated the prior allegations and asserted, "The conduct of [Simpson] alleged above constitutes constructive fraud." Fifth, in the cause of action for an accounting, Ramirez asserted she "is entitled to a full and accurate accounting from [Simpson] of all distributions from [the Salon] and all expenditures claimed to have been made by or on behalf of [the Salon]."
In the cross-complaint, Ramirez seeks an accounting concerning "1st Street Hair Salon." We infer this is a typographical error, and Ramirez is intending to refer to the Salon.
Sixth, in the cause of action seeking a constructive trust, Ramirez alleged, "As a result of the breach of fiduciary duty, constructive fraud and other wrongful conduct of [Simpson], as well as the failure of [Simpson] to provide an accurate accounting" Ramirez was entitled to a constructive trust "over all such wrongfully acquired assets." Seventh, in the cause of action seeking an injunction, Ramirez alleged Simpson "transfer[red] substantially all of [the Salon's] available cash to [Simpson's] personal attorney." Ramirez requested an injunction preventing Simpson and her attorneys "from taking or transferring any of the cash or other assets of [the Salon] outside the ordinary course of business, and requiring the immediate return of all such transfer of assets outside the ordinary course of business already accomplished."
In the cross-complaint, Ramirez seeks an injunction related to "1st Street Hair Salon," as opposed to 9th Street. We infer this is a typographical error, and Ramirez intended to refer to the Salon.
Ramirez sought: (1) compensatory damages in an amount of at least $25,000; (2) general damages in an amount of at least $100,000; (3) punitive damages; (4) exemplary damages; (5) an accounting; (6) the imposition of a constructive trust; (7) an injunction; (8) costs, including attorney's fees; and (9) any other proper relief.
C. ANTI-SLAPP MOTION
1. FACTUAL ALLEGATIONS
In response to Ramirez's cross-complaint, Simpson filed an anti-SLAPP motion. (§ 425.16.) Simpson alleged Ramirez purchased products and meals for personal use. Simpson asserted she "privately confronted" Ramirez in a parking lot and "it was revealed that Mrs. Ramirez took these items for personal use," yet, simultaneously, "Ramirez denied these allegations." Ramirez created a "public spectacle [by] calling over the hairdressers who rent space from the [Salon]."
2. PROTECTED ACTIVITY
We present Simpson's arguments concerning the protected activity prong of the anti-SLAPP motion. First, as to the slander cause of action, Simpson asserted her statements to Ramirez about Ramirez going to jail were protected because they were taken in the course of "discovering the facts which would lead to the lawsuit." Alternatively, Simpson asserted her statements were part of a public forum, due to Ramirez beckoning the hairstylists to witness the dispute in the parking lot.
Second, in regard to the abuse of process cause of action, Simpson alleged the cause of action was based upon Simpson's act of filing a lawsuit. Third, as to the breach of fiduciary duty cause of action, Simpson asserted Ramirez was faulting her for filing a frivolous derivative action, which Simpson asserted was a protected activity in that it concerned the filing of a lawsuit.
In regard to the constructive fraud, accounting, constructive trust, and injunction causes of action, Simpson asserted no additional factual allegations were made, and therefore the causes of action were based upon the protected activities in the first three causes of action.
3. PROBABILITY OF PREVAILING
We present Simpson's arguments concerning the second prong of the anti-SLAPP motion—a probability of prevailing. First, as to the slander cause of action, Simpson asserted Ramirez did not have a probability of prevailing because Simpson did not intentionally publish a false statement. In regard to publishing, Simpson confronted Ramirez privately and in-person, so as to not publish the information. Also, Ramirez's theft from the Salon "was seemingly clear," thus causing the statements to be true.
Second, as to the abuse of process cause of action, Simpson asserted the cause of action was barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) Additionally, Simpson asserted she did not gain an economic advantage in negotiating the buyout of the Salon, and therefore the cause of action failed. Simpson asserted her last offer to buy Ramirez's share included forgiveness for the misappropriated money.
Third, Simpson asserted Ramirez did not have a probability of prevailing on the breach of fiduciary duty cause of action because Simpson did not have an improper motive in withholding money from Ramirez and bringing a derivative lawsuit. Fourth, as to the cause of action for constructive fraud, Simpson asserted she protected the Salon's assets from Ramirez and therefore could not be liable for constructive fraud.
Fifth, in regard to the request for an accounting, Simpson contended an accounting was unnecessary because Simpson acted in accordance with her duties. Sixth, as to the cause of action for an injunction, Simpson asserted an injunction is a form of relief, not a cause of action. Therefore, Simpson asserted Ramirez was unlikely to prevail on the claim. Additionally, Simpson asserted Ramirez could not establish that she suffered damages. Because damages are an element of all of Ramirez's causes of action, her lawsuit would fail.
D. OPPOSITION
Ramirez opposed Simpson's anti-SLAPP motion.
1. PROTECTED ACTIVITY
We present Ramirez's arguments concerning the protected activity prong of the motion. First, in regard to the slander cause of action, Ramirez asserted Simpson's statement, " 'you're going to jail,' " was not made in anticipation of litigation. Rather, while in the Salon, in the presence of customers and hairstylists, Simpson would sing " 'you're going to jail.' " Additionally, Ramirez asserted Simpson's statements did not concern a topic of public interest. Therefore, Ramirez contended the slander cause of action did not concern protected speech.
Second, as to the abuse of process cause of action, Ramirez focused on the second prong, i.e, a probability of prevailing. Third, in regard to the breach of fiduciary duty cause of action, Ramirez asserted that Simpson's act of suing was not a protected activity because the lawsuit constituted an act of corporate waste.
As to the causes of action for constructive fraud, an accounting, the imposition of a constructive trust, and an injunction, Ramirez asserted they did not involve protected activity "[f]or all the reasons discussed above," in that these four causes of action were based upon the first three causes of action.
2. PROBABILITY OF PREVAILING
In regard to the probability of prevailing, first, as to the slander cause of action, Ramirez asserted Simpson "in a sing song manner" said " 'you're going to jail,' " to Ramirez. Ramirez contended the statement was false and defamatory per se. In a declaration, a hairstylist, Becky Gonzales, declared that Simpson told Gonzales she knew the theft allegations were false.
The trial court sustained Simpson's objections to this evidence. We present the evidence for the sake of background information, not to establish the merits of a disputed issue.
Second, as to the abuse of process cause of action, Ramirez asserted that Simpson's act of giving $11,000 of the Salon's funds to a lawyer in order to sue for $1,055 was irrational and therefore established that Simpson sued Ramirez for the purpose of gaining leverage in the buyout negotiations.
Third, in regard to the breach of fiduciary duty cause of action, Ramirez argued that there was evidence Simpson knew her theft allegations were false and therefore Simpson improperly tried to prevent Ramirez from being involved in the management of the Salon. Fourth, as to the constructive fraud cause of action, Ramirez asserted Simpson violated her fiduciary duties by wasting corporate assets in making false theft allegations against Ramirez for the purpose of gaining control of the Salon, which constituted constructive fraud.
Fifth, in regard to the request for an accounting, Ramirez asserted Simpson violated her fiduciary duties and seized $11,000 of the Salon's money, and therefore Ramirez was entitled to an accounting. Sixth, as to the requests for an injunction and constructive trust, Ramirez asserted such relief was necessary due to Simpson failing to account for the Salon's assets and making false accusations against Ramirez.
E. RULING
In giving its tentative ruling, the trial court said, "With respect to the special motion to strike in this matter under CCP Section 425[.]16 I'm going to grant it with respect to all causes of action. I will note that I went through the two-prong process in this matter in determining in arriving [sic] at the Court's ruling in this matter. I will indicate I did find that Simpson had met her burden of proof with regard to the first prong showing the allegations alleged in . . . Ramirez's cross-complaint related to her protected activities, protected by the anti[-SLAPP] motion.
"I will indicate for the second portion this goes to all the causes of action. I find that . . . Ramirez failed to meet her burden of proof to establish the probability of prevailing on her claims. So it would be the Court's intention to grant Simpson's special motion to strike pursuant to CCP Section 425[.]16 and Civil Code section 47[ subdivision (b)] and strike [Ramirez's] cross-complaint in this matter."
When the trial court issued its final ruling, it said, "The Court's tentative will become the Court's final." The trial court granted Simpson's anti-SLAPP motion as to all causes of action in Ramirez's cross-complaint.
DISCUSSION
A. CONTENTION
Ramirez contends the trial court erred by granting the anti-SLAPP motion. (§ 425.16.)
B. LAW AND STANDARD OF REVIEW
The anti-SLAPP statute is designed to "encourage continued participation in matters of public significance" by stopping lawsuits that would otherwise chill a person's public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determining if a lawsuit is designed to curb the defendant's participation in matters of public significance.
The first step is examining the causes of action to determine if they arise from any act in furtherance of the cross-defendant's "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b).) The second step is determining whether the cross-plaintiff has a probability of prevailing on her claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the cross-defendant's right of petition or free speech and the cross-plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).)
We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.) In examining the issue we may "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Declarations may also be considered. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89-90 (Navellier).) " 'However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as true the evidence favorable to the [cross-]plaintiff and evaluate the [cross-]defendant's evidence only to determine if it has defeated that submitted by the [cross-]plaintiff as a matter of law." ' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
C. PROTECTED ACTIVITY
1. LAW
An " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes (1) any written or oral statement or writing made before a . . . judicial proceeding . . . , (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body. . . , (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
2. SLANDER
First, in the slander cause of action, Ramirez alleged Simpson "uttered false statements concerning the conduct and character of [Ramirez], including statements accusing [Ramirez] of theft, embezzlement and other crimes, and included such statements as 'you're going to jail.' " The alleged "[f]alse [s]tatements were uttered in the public business location of [the Salon] where co-workers, customers and other third parties could hear them." In Ramirez's declaration, she declared that Simpson "wander[ed] around the [Salon] within earshot of the other stylists saying to [Ramirez] 'you're going to jail' in a sing-song manner."
The trial court sustained an objection to this evidence. We present the evidence for the purpose of understanding the basis of Ramirez's slander cause of action, not to prove the merits of the cause of action.
The "you're going to jail" statement was made in the Salon, it was not made as part of judicial proceeding or in a public forum. The conduct at issue was Simpson's statement concerning Ramirez. Ramirez and Simpson are private parties, they are not public figures, thus it was not an issue of public interest. In sum, the alleged slander did not involve a judicial proceeding or a matter of public interest. Therefore, the slander cause of action does not arise from Simpson's right of petition or free speech in connection with a public issue.
Simpson asserts Ramirez's slander cause of action is based upon the confrontation in the parking lot, which was witnessed by hairstylists who rent space at the Salon. Simpson asserts those statements are protected because they were made as part of prelitigation activity, i.e., investigating the theft by confronting Ramirez. (See Aguilar v. Goldstein (2012) 207 Cal.App.4th 1152, 1162 [prelitigation statements can be protected].) Simpson's argument is not persuasive because Ramirez's slander cause of action is not based upon the confrontation in the parking lot. Rather, it is based upon Simpson having "wander[ed] around the [Salon] within earshot of the other stylists saying to [Ramirez] 'you're going to jail' in a sing-song manner." Because Simpson is not addressing the act that forms the basis for Ramirez's slander cause of action, we find Simpson's argument to be unpersuasive.
Simpson asserts the alleged slander concerned a matter of public interest because Ramirez told the hairstylists who rented space in the Salon that the Salon would be closing and they would need to find another location in which to rent space. Simpson asserts Ramirez's comments caused the stylists to become interested in what would otherwise have been a private dispute, and therefore the matter was one of public interest.
" 'Section 425.16 does not define "an issue of public interest." Nevertheless, the statute requires the issue to include attributes that make it one of public, rather than merely private, interest. . . . For example, "public interest" is not mere curiosity. Further, the matter should be something of concern to a substantial number of people." (Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131 (Colyear).)
Thus, " ' "public interest" within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, " 'private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.' " [Citation.]' [Citation.] '[I]n cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.' " (Colyear, supra, 9 Cal.App.5th at p. 131.)
The dispute in this case concerns the alleged misappropriation of money from the Salon. Simpson's statements were allegedly of interest to the hairstylists who rented space in the Salon. That is a private group; it is not a broad segment of society. Thus, it must be explained how a dispute concerning the alleged misappropriation of approximately $1,500 from a salon warrants protection by the anti-SLAPP statute. (Colyear, supra, 9 Cal.App.5th at p. 131.) Simpson does not explain how this private dispute rises to the level of deserving the type of statutory protection meant to shield people who are being attacked for their participation in public matters. Accordingly, we are not persuaded by Simpson's assertion that her statements are protected because they concerned a matter of public interest. (See Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767 [appellate court will not furnish a legal argument for counsel].)
3. ABUSE OF PROCESS
Ramirez concedes the abuse of process cause of action concerns Simpson's protected activity of suing another person in state court. (§ 425.16, subd. (e)(1)&(2).)
4. BREACH OF FIDUCIARY DUTY
Ramirez's breach of fiduciary duty cause of action concerns Simpson's use of the Salon's money to pursue the derivative lawsuit against Ramirez for Simpson's alleged ulterior motive of gaining an advantage in the buyout negotiations. The conduct Ramirez complains of is Simpson's act of filing the derivative lawsuit and using corporate funds to maintain the lawsuit. Therefore, Simpson's alleged liability is based upon her act of filing a lawsuit. As a result, the cause of action arises from protected activity. (§ 425.16, subd. (e)(1)&(2).)
Ramirez asserts the breach of fiduciary duty cause of action does not involve protected activity because it is based upon Simpson's alleged waste of corporate assets, not upon Simpson's filing of a lawsuit. Ramirez's argument is not persuasive because the act by which Simpson allegedly wasted corporate assets is the filing of the lawsuit. Thus there is one act at issue—the filing of the lawsuit. The issue is whether that act constituted a breach of fiduciary duty. As a result, the cause of action arises from protected activity. (§ 425.16, subd. (e)(1)&(2); see also Navellier, supra, 29 Cal.4th at p. 90.)
Ramirez asserts the breach of fiduciary duty cause of action does not involve protected activity because it is based upon Simpson's alleged slanderous remarks to Ramirez. To the extent slander is part of the breach of fiduciary duty cause of action, Ramirez has created a mixed cause of action by incorporating protected and unprotected acts within the same cause of action.
The cause of action cannot be based solely upon the alleged slander because, in the breach of fiduciary duty cause of action, Ramirez alleges, "This duty included the duty not to squander corporate assets in an effort to gain an advantage in ongoing buyout negotiations, and not to pursue a frivolous derivative action on behalf of [the Salon]." Thus, slander is not the sole basis for the breach of fiduciary duty cause of action. Mixing the cause of action does not mean protected activity will be treated as unprotected. Rather, it means some portions of the cause of action may be subject to being stricken, while others are not. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) Accordingly, we are not persuaded by Ramirez's argument that the incorporation of the slander allegations would mean the entire cause of action arises from unprotected activity.
5. REMAINING CAUSES OF ACTION
The causes of action for constructive fraud, an accounting, the imposition of a constructive trust, and an injunction, do not contain additional factual allegations. They incorporate the allegations concerning Simpson's alleged breach of fiduciary duty. Accordingly, based upon our analysis ante, we conclude the remaining causes of action concern protected activity.
D. PROBABILITY OF PREVAILING
1. LAW
If a cause of action arises from the cross-defendant's protected activity then the cross-plaintiff must show she has a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 93.) The cross-plaintiff must establish that her case has "minimal merit" by presenting a " ' "prima facie showing of [evidence] to sustain a favorable judgment if the evidence submitted by the [cross-]plaintiff is credited." ' " (Navellier, at p. 93.)
2. SLANDER
We have concluded ante that the slander cause of action does not arise from Simpson's protected activity. Accordingly, we do not address the issue of whether Ramirez is likely to prevail on the slander cause of action.
3. ABUSE OF PROCESS
"To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)
In Simpson's verified complaint she alleges Ramirez misappropriated $1,055.74. In response to this, Simpson hired an attorney seeking restitution, punitive damages, an injunction, dissolution of the Salon as a corporate entity, attorney's fees, and costs. A reasonable person looking at Simpson's lawsuit could rationally question why Simpson chose to hire an attorney and bring an unlimited civil lawsuit in reaction to the loss of $1,055.74 because it can reasonably be assumed that Simpson will spend more than $1,055.74 in her attempt to reclaim the $1,055.74. Thus, one could reasonably infer from Simpson's actions that she has an ulterior motive in bringing her lawsuit. (See Tellefsen v. Key System Transit Lines (1961) 198 Cal.App.2d 611, 615 [ulterior motive taking the form of coercion to obtain a collateral advantage, i.e., using the process as a threat or club].)
In Simpson's verified complaint, she alleges, "Simpson has attempted to discuss buyout of the business with Mrs. Ramirez, but Mrs. Ramirez's offer to pay [Simpson] $7000.00 undervalues [Simpson's] interest in the salon." It can reasonably be inferred from Simpson's verified allegation that Simpson is unhappy with Ramirez's valuation of the business. A reasonable person looking at this evidence could conclude that Simpson's ulterior motive for bringing her lawsuit was to strengthen her position in the buyout negotiations. Thus, Simpson had an ulterior motive in bringing her lawsuit.
The willful act was Simpson's filing of her verified complaint. The next element to examine is whether the willful act was improper in the regular conduct of the proceedings. There is no admissible evidence reflecting Simpson filed her complaint in an unauthorized manner. The evidence reflects Simpson believed Ramirez misappropriated money from the Salon and filed a lawsuit to recover that money and prevent future misappropriation. Thus, the lawsuit was filed in an authorized manner; the motive may have been improper, but the procedure was correct. (See Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792-793 ["They assert no facts to support a finding that the use of process was done in an unauthorized manner, but only that Gulf's motive was improper"]; see also Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 ["the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action"].) Accordingly, Ramirez has failed to show a probability of prevailing on her abuse of process cause of action because she has not shown Simpson's filing of the complaint was improper.
Ramirez contends she presented a prima facie case of abuse of process, in part, because Becky Gonzales, a hairstylist at the Salon, declared, "Simpson confided in me that her accusations against . . . Ramirez were false." The trial court sustained Simpson's objection to Gonzales's statement. Therefore, we cannot rely upon this evidence in analyzing whether Ramirez has presented a prima facie case of abuse of process.
4. BREACH OF FIDUCIARY DUTY
" ' "The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach." ' " (Tribeca Companies, LLC v. First American Title Insurance Company (2015) 239 Cal.App.4th 1088, 1114.)
We address the existence of a fiduciary duty. "A fiduciary must give 'priority to the best interest of the beneficiary. [Citation.]' [Citation.] In addition to this duty of preference toward the beneficiary, the fiduciary also is required to manage the subject matter of the relationship (or res) with due care, must account to the beneficiary, and must keep the beneficiary fully informed as to all matters pertinent to the beneficiary's interest in the res." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631.)
A corporation's directors and officers owe a fiduciary duty to the corporation and its shareholders. (Oakland Raiders v. National Football League, supra, 131 Cal.App.4th at p. 631.) However, corporate directors and officers do not owe a fiduciary duty to one another. (Hallidie v. First Federal Trust Co. (1918) 177 Cal. 600, 604.) Majority or controlling shareholders have a fiduciary duty to minority shareholders. (Oakland Raiders, at p. 631.) However, equal shareholders do not have a fiduciary duty to one another. (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1156-1159; Miles, Inc. v. Scripps Clinic and Research Foundation (S.D.Cal. 1993) 810 F.Supp. 1091, 1099.)
In Simpson's verified complaint she alleged she and Ramirez were co-owners of the Salon, each holding a 50 percent interest. Ramirez declares the same in her declaration. In Simpson's verified complaint she alleges she is president of the Salon and Ramirez is the Salon's secretary. In Ramirez's declaration she declares she and Simpson were both officers and directors of the Salon. Because Ramirez and Simpson were both officers for the Salon and were equal shareholders, there is no fiduciary duty owed between them. Accordingly, Ramirez has failed to establish a prima facie case of breach of a fiduciary duty because she has not established the existence of a fiduciary duty. Thus, Ramirez has not established a probability of prevailing on the breach of fiduciary duty cause of action.
Ramirez asserts, "There is ample evidence of a fiduciary relationship." However, Ramirez provides no explanation of what evidence, if any, supports this assertion. Accordingly, we find Ramirez's argument to be unpersuasive.
5. CONSTRUCTIVE FRAUD
In Ramirez's appellant's opening brief she asserts her abuse of process and breach of fiduciary duty causes of action also constitute constructive fraud.
"Constructive fraud ' " ' "is a unique species of fraud applicable only to a fiduciary or confidential relationship." ' " ' [Citation.] 'Constructive fraud "arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice." ' " (Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1131.)
We have concluded ante that Ramirez failed to establish a probability of prevailing on the breach of fiduciary duty cause of action because she has not presented a prima facie case that Simpson owed Ramirez a fiduciary duty. Accordingly, we conclude Ramirez has also failed to establish a probability of prevailing on the constructive fraud cause of action due to the failure to establish a prima facie case that Simpson owed Ramirez a fiduciary duty.
6. ACCOUNTING, INJUNCTION, AND CONSTRUCTIVE TRUST
Ramirez's causes of action for an accounting, an injunction, and a constructive trust are based upon her allegations of abuse of process and breach of fiduciary duty. A constructive trust, an accounting, and an injunction are not independent causes of action; they are remedies. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023, fn. 3 [constructive trust and accounting]; Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [injunction].) We have concluded ante that Ramirez has failed to establish a probability of prevailing on the abuse of process and breach of fiduciary duty causes of action. Accordingly, we conclude she has failed to establish a probability of prevailing on the dependent causes of action for an accounting, injunction, and constructive trust.
E. CONCLUSION
In sum, the trial court erred by granting the anti-SLAPP motion as to the slander cause of action because it does not involve protected activity. The trial court properly granted the anti-SLAPP motion as to all other causes of action.
F. EVIDENTIARY OBJECTIONS
Ramirez contends the trial court erred by sustaining Simpson's evidentiary objections. The only evidentiary objection that has impacted this appeal is Simpson's objection to Gonzales's declaration. In particular, the objection to Gonzales's statement, "Simpson confided in me that her accusations against . . . Ramirez were false." Simpson objected on the bases of (1) hearsay, (2) lack of foundation, (3) lack of personal knowledge, and (4) the statement being vague, ambiguous, and conclusory. The trial court sustained the objection but did not state the basis for its ruling.
We apply the abuse of discretion standard of review. (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 678.) The statement meets the party admission exception to the hearsay rule, in that the original speaker was Simpson, who is a party to the lawsuit. (Evid. Code, § 1220 [party admission].) Accordingly, the statement is admissible as hearsay.
In regard to vagueness, the law requires facts in declarations to "be set forth with particularity." (§ 482.040; Hobbs. v. Weiss (1999) 73 Cal.App.4th 76, 79-80.) In Gonzales's declaration she declared, "Simpson confided in me that her accusations against . . . Ramirez were false." It is unclear if Simpson was referring to the theft allegations at issue in this case. It is also unclear when Simpson made this statement to Gonzales. For example, it is possible that Simpson confided in Gonzales in 1999 concerning the accusation that Ramirez took Simpson's lunch from the Salon's refrigerator. In other words, there is no basis for knowing when Simpson spoke to Gonzales and about what issue they were speaking. Due to the lack of details in Gonzales's declaration, the trial court could reasonably conclude that Gonzales's statement was too vague to be admissible.
Ramirez asserts that " 'vague and ambiguous' " is not a proper objection because those issues concern the weight of the evidence, not the admissibility of the evidence. Contrary to Ramirez's position, the law requires facts in declarations to "be set forth with particularity." (§ 482.040; Hobbs. v. Weiss, supra, 73 Cal.App.4th at pp. 79-80.) As a result, "vague and ambiguous" is a proper objection relating to admissibility.
G. ATTORNEY'S FEES
1. PROCEDURAL HISTORY
When the trial court granted the anti-SLAPP motion, the trial court said, "I'm also indicating in this matter that [Simpson] is entitled to recover reasonable attorney fees in this matter upon filing a []motion and presenting a detailed itemization of costs." At a later hearing, the trial court granted Simpson's motion for attorney's fees. The court awarded Simpson $12,748 in attorney's fees.
2. ANALYSIS
Ramirez contends the trial court erred by awarding attorney's fees to Simpson because the trial court erred in granting the anti-SLAPP motion.
We apply the abuse of discretion standard of review. (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544.) Except as otherwise provided by law, a prevailing cross-defendant on an anti-SLAPP motion is entitled to recover her attorney's fees. (§ 425.16, subd. (c)(1).) "Where the motion is partially successful, the question is whether the results obtained are insignificant and of no practical benefit to the moving party." (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1123.)
We have concluded ante that the trial court erred by granting the anti-SLAPP motion as to one of Ramirez's seven causes of action. Because Simpson prevailed on six of the seven causes of action, Simpson's victory was significant and beneficial. Simpson's motion resulted in a large portion of Ramirez's cross-complaint being stricken. Accordingly, the trial court did not err by concluding Simpson is entitled to an award of attorney's fees.
However, the amount of attorney's fees awarded should be adjusted due to Simpson not prevailing on the entire motion. Simpson can recover fees incurred on the six stricken causes of action, but she is not entitled to fees incurred on the remaining slander cause of action. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Accordingly, we will reverse the award of $12,748 in attorney's fees. The trial court may determine the appropriate amount of fees upon an amended motion by Simpson.
Ramirez would be entitled to attorney's fees if Simpson's anti-SLAPP motion were frivolous or solely intended to cause unnecessary delay. (§ 425.16, subd. (c)(1).) Ramirez has not asserted that Simpson's anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay. Accordingly, we do not examine whether Ramirez was entitled to attorney's fees.
DISPOSITION
The order granting the anti-SLAPP motion is reversed as to Ramirez's first cause of action for slander. The trial court's award of $12,748 in attorney's fees is reversed. Simpson has 60 days from the date of the issuance of the remitter by this court to file an amended motion for attorney's fees. If Simpson fails to file an amended motion for attorney's fees, then the award is modified to zero. In all other respects, the order is affirmed. Respondent, Simpson, is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278.) Simpson is also entitled to recover reasonable attorney's fees associated with responding, on appeal, to the arguments concerning the six stricken causes of action. (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 999; Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 447-448.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.