In this case, the Court of Appeal entered its original decision in plaintiff’s favor. Then the California Supreme Court granted review. After doing so, it re-transferred the case back to the Court of Appeal to consider in light of an intervening Supreme Court decision. This decision holds that the grant of review nullified the prior Court of Appeal decision so it could not operate as law of the case when the case was retransferred to the Court of Appeal for re-decision. A different rule applies when the US Supreme Court grants certiorari. In that event, the Court of Appeal opinion continues as law of the case on all issues not re-decided by the US Supreme Court. See Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738. Ordinarily, a lender’s failure to provide reinstatement amounts in response to a defaulted borrower’s request would not be protected activity under CCP 425.16. But here, the requests for reinstatement quotes and the alleged failures to respond occurred in the context of the borrower’s bankruptcy proceeding so they were protected activity made in connection with issues under review in the bankruptcy proceeding. Failures to disclose are as much protected activity as mis-disclosures. Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118. Defendant’s failure to respond to plaintiff’s alleged tender of arrearages under the deed of trust was also protected activity because the tenders were made as part of efforts to settle claims in the bankruptcy proceeding. Plaintiff failed to prove a probability of success on the merits. Civ. Code 47(b) barred all its claims other than for breach of contract. And it failed to produce prima facie evidence of breach.
California Court of Appeal, Third District (Nicholson, Acting P.J.); July 26, 2017; 2017 WL 3166914