The anti-SLAPP Statute is a Serious Obstacle to Suing Receivers
A prior post — Court-Appointed Receivers are Protected by Quasi-Judicial Immunity — covered the Court of Appeal’s published opinion in Semaan v. Mosier, in which the Court of Appeal affirmed the trial court’s granting of an anti-SLAPP motion striking a complaint against a court-appointed receiver based on the doctrine of quasi-judicial immunity.
Another opinion recently filed by California’s Fourth Appellate District — Makkouk v. California Receivership Group — follows in the Semaan opinion’s footsteps. While the Makkouk opinion is unpublished and therefore not binding precedent, it still provides a useful guidepost.
Facts: receiver appointed by the court to abate public nuisance; owner files separate action against the receiver
According to the opinion:
In a lawsuit filed by the City of Cypress, the court appointed California Receivership Group as receiver to abate a public nuisance at Makkouk’s home. The receiver apparently performed the abatement work and listed the property for sale pursuant to the court’s appointment order.
Makkouk filed a separate action against the receiver alleging the receiver wrongfully incurred excessive charges, made “luxurious updates to the Subject Property that are not necessary for habitability and safety, rather for resale and increase in property value in an effort to secure the repayment of their already excessive and inflated construction costs and fees,” and “listed the property for an inadequately low price.”
Trial court: anti-SLAPP motion granted based on quasi-judicial immunity
The receiver filed an anti-SLAPP motion, which the trial court granted. While the Semaan opinion had not yet been published, the trial court similarly concluded that the alleged conduct arose out of protected activity, and that plaintiff could not establish the prima facie merit of the case because the receiver had quasi-judicial immunity for the “performance of duties in connection with the judicial process.”
Makkouk appealed.
Court of Appeal: affirmed
The Court of Appeal affirmed.
The court confirmed that the first prong of anti-SLAPP analysis was satisfied by the receiver’s motion because Makkouk’s complaint arose from protected activity. Specifically, the receiver’s alleged conduct fell within the protection of Code of Civil Procedure section 425.16(e)(4), which is a “catch-all” provision that protects “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.” The court further held:
Notably, this is not a case where the receiver was appointed to manage a business pending resolution of a purely private dispute. To the contrary, a government entity (the City of Cypress) requested the receiver to abate a public nuisance. … By definition, a public nuisance affects at the same time an entire community or neighborhood, or any considerable number of persons…. The public nuisance doctrine is aimed at the protection and redress of community interests.
The court also confirmed that the second prong of anti-SLAPP analysis was met by the receiver’s motion because the receiver was protected by quasi-judicial immunity for the receiver’s “discretionary acts and decisions.” The court held: “Nuanced decision-making over making repairs and improvements and determining a sales price calls for the exercise of discretion.” The court acknowledged that quasi-judicial immunity “does not extend to intentional misconduct, such as self-dealing,” but Makkouk “has not shown the probability of prevailing on any such claim.”
Lesson
Under the Makkouk opinion, which follows the published opinion in Semaan, suing a receiver will likely face an anti-SLAPP challenge, and overcoming that motion is difficult given the receiver’s enjoyment of quasi-judicial immunity.