Court of Appeal:
Attack on Abstract of Federal Judgment Was a SLAPP
Currey Says Superior Court Can’t Grant Relief Although Abstract Is Filed in Los Angeles County Recorder’s Office and Reflects a $1.8 Billion Judgment, Plus Attorney Fees, That Ninth U.S. Circuit Court of Appeals Has Reversed
By a MetNews Staff Writer
A company that obtained a federal-court judgment for $1.8 billion, plus attorney fees and interest, against a man for trademark infringement, then recorded an abstract of judgment with the Office of Los Angeles County Recorder, is impervious to a suit in state court over the company’s refusal to withdraw the abstract now that the Ninth U.S. Circuit Court of Appeals has reversed the award, the Court of Appeal for this district has held.
The opinion, filed Tuesday and not certified for publication, affirms a decision by Los Angeles Superior Court Judge Terry A. Green granting an anti-SLAPP motion put forth by AECOM Energy & Construction, Inc., the plaintiff in the U.S. District Court action and defendant in the case before Green, an action by Gary G. Topolewski for abuse of process.
The anti-SLAPP statute, Code of Civil Procedure §425.16, is designed to weed out, at an early stage, unmeritorious actions based on conduct protected by the First Amendment, including litigation conduct. It encompasses, in subd. (e)(2), a “written or oral statement or writing made in connection with an issue under consideration or review by a...judicial body.”
AECOM argued in proceedings before Green that its litigation activity following its victory in the U.S. District Court for the Central District of California is subject to that protection.
Topolewski countered that once the judgment against him (and others) was reversed, AECOM was obliged to withdraw the initial abstract of judgment as well as an amended abstract of judgment it filed solely reflecting the attorney-fee award of $873,628.02. The filing of the abstracts were privileged conduct, Topolewski acknowledged, but argued that the subsequent failure to remove them when called upon to do so was unprotected bullheadedness.
Green agreed with AECOM, granting its motion and awarding $41,055.75 to it as the prevailing party in an anti-SLAPP dispute.
Topolewski argued in his opening brief in the Court of Appeal (with the emphasis being his) that “the wrongful conduct” alleged in his Superior Court action “was AECOM’s deliberate and unlawful refusal to withdraw from the public record an abstract of judgment it had previously recorded of a massive $1.8 billion judgment against Topolewski personally after the judgment was reversed by the Ninth Circuit Court of Appeals and no longer existed.”
As alleged in Topolewski’s complaint, AECOM refused to remove that indelible and legally baseless stain on Topolewski’s credit and reputation for the undisputed extortionate purpose of creating leverage against Plaintiff and a third party in a separate lawsuit for a purportedly fraudulent conveyance. AECOM effectively admitted the illegality of its conduct by purportedly “amending” the abstract to limit it to the amount of attorneys’ fees awarded as part of the judgment, even though the attorneys’ fee award was also reversed, and even though AECOM continued to leave both unlawful abstracts on the public record.”
AECOM had asserted a judgment lien against all of Topolewski’s real property in County and in its Los Angeles Superior Court action against him, it alleged a fraudulent transfer of a parcel to a third party.
In his Court of Appeal opinion upholding Green’s order, Acting Presiding Justice Brian S. Currey of Div. Four said of Topolewski’s contention that §425.16 does not extend to the refusal to withdraw recorded extracts of a judgment that “[w]e decline to narrow the statute in that way.”
He declared that while Topolewski “contends AECOM should have withdrawn the abstracts after its judgment against him was reversed and the case was remanded to the district court, he does not adequately articulate why leaving them in place is not also protected speech or petitioning activity.”
“Both filing and not withdrawing the abstracts are protected speech within the scope of the anti-SLAPP statute. The abstracts serve as notice of AECOM’s claim, whether the claim is valid or not.”
Providing guidance to Topolewski, Currey said that he “is not without a remedy for what he contends are improper abstracts of judgment,” suggesting that he seek relief in the U.S. District Court, elaborating:
“Topolewski’s remedy is to return to the federal district court to seek an appropriate order, such as an order releasing the lien created by the abstracts or requiring AECOM to record an appropriate document to the same effect.”
He quoted the California Supreme Court as saying in its 1970 opinion in Martin v. Martin that a U.S. District Court judgment, “once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition.” Currey declared:
“As a result, the federal court, not this court, has jurisdiction over the trademark litigation and is the court with the power to effect modification of the abstracts.”
The case is Topolewski v. AECOM Energy & Construction, B318107.
Attorneys on appeal were Stanley M. Gibson, Susan Allison, and Dan P. Sedor of Jeffer, Mangels, Butler & Mitchell for Topolewski and Justin M. Goldstein, and Rachael W. Hiatt of Sklar Kirsh for AECOM.
AECOM’s federal suit against Topolewski, filed In July 2017, alleged that his company, Metal Jeans, Inc., wrongfully used the words “Morrison Knudsen.” Although a company with that name no longer existed, its assets had been purchased by AECOM.
On Sept. 11, 2018, the Ninth Circuit affirmed a preliminary injunction issued by District Court Judge Ronald S.W. Lew against such use. However, on March 24, 2021, it reversed a summary judgment in the case based on the award stemming from the content of press releases.
The majority said:
“The press releases, viewed in the light most favorable to Defendants-Appellants, merely show that Defendants-Appellants had been awarded contracts; they do not show whether Defendants-Appellants completed (or even started) the projects or whether Defendants-Appellants received any payments under the contracts, much less almost $2 billion. Thus, AECOM failed to carry its burden of establishing Defendants-Appellants’ sales arising from their infringing activity, and the district court erred in granting the damages award.”
On May 9. 2022, Lew declared:
“AECOM is awarded damages in the amount of $36 million against all Defendants (jointly and severally), payable to AECOM within thirty (30) business days after entry of this Amended Final Judgment.”
The new judgment has been appealed to the Ninth Circuit.
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