Du Boise v. Peterson
Filed 12/6/13 Du Boise v. Peterson CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
LISA DU BOISE,
Plaintiff, Cross-defendant and
Appellant,
v.
ERIC C. PETERSON et al.,
Defendants, Cross-defendants and
Respondents;
RODNEY UNGER,
Defendant, Cross-complainant and
Appellant.
B237764 (Consolidated with B240357)
(Los Angeles
County Super.
Ct.
No. SC111762)
APPEAL from
the orders of the Superior Court of
County, Norman P. Tarle, Judge.
Affirmed.
Fuchs &
Associates, Inc., John R. Fuchs and Gail S. Gilfillan for Plaintiff,
Cross-defendant and Appellant.
Law Offices
of William E. Crockett, William E. Crockett, Steven R. Skirvin and Kenneth C.
Bounds for Defendant, Cross-complainant and Appellant.
Gaglione,
Dolan & Kaplan, Robert T. Dolan and Jack M. LaPedis for Defendants,
Cross-defendants and Respondents Eric C. Peterson and Rutter, Hobbs &
Davidoff, Inc.
Baker,
Keener & Nahra, Mitchell F. Mulbarger and James D. Hepworth for Defendant,
Cross-defendant and Respondent Rosslyn Hummer.
Robie &
Matthai, Edith R. Matthai, Natalie A. Kouyoumdjian and Marta A. Alcumbrac for
Defendants, Cross-defendants and Respondents Hinshaw & Culberton, LLP and
Frederick J. Ufkes.
________________________
Plaintiff, cross-defendant, and
appellant Lisa Du Boise appeals from an order granting three special
statute,
title="">[1] Code of Civil Procedure section 425.16,
attorney fees in favor of defendants, cross-defendants, and respondents Rosslyn
Hummer, Frederick J. Ufkes, Eric Peterson, and the law firms of Rutter, Hobbs
& Davidoff, Inc. (RHD), and Hinshaw & Culbertson, LLP (H&C),
attorneys in this malicious prosecution
action. The attorneys represented
Rodney Unger in the underlying action to recover funds that he deposited in Du
Boise’s bank account. On appeal, Du
Boise contends: 1) the trial court abused its discretion in
making evidentiary rulings; 2) the
attorneys lacked probable cause to pursue one or more of the causes of action in
the underlying case; and 3) the trial
court abused its discretion by awarding excessive attorney fees.
Unger appeals from the portion of
the trial court’s order denying his motion for joinder in the anti-SLAPP
motions. Unger contends the trial court
improperly weighed his credibility and the evidence showed he had the same
probable cause as his attorneys to pursue the underlying action.
We conclude Du Boise failed to show
that the attorneys lacked probable cause to pursue the causes of action in the
underlying case. Du Boise has not shown
the evidentiary rulings have an impact on our determination on the merits. The trial court properly exercised its
discretion to reduce the attorney fee requests far beyond the amounts incurred
and no abuse of discretion has been shown on appeal. Unger’s motion for joinder in the anti-SLAPP
motions was properly denied, however, because issues of credibility exist that
can only be resolved by a finder of fact.
Therefore, we affirm the order granting the anti-SLAPP motions and
denying Unger’s joinder, and we affirm the order awarding attorney fees.
FACTS AND
PROCEDURAL BACKGROUND
I. Allegations of the Instant Complaint
Du Boise filed a complaint for
malicious prosecution against Unger, Hummer, Ufkes, Peterson, RHD, and H&C,
containing the following allegations. In
August 1998, Allen Gelbard and Robert Beaton formed ABI Investments, LLC (ABI)
to hold securities investments. In 1999,
Beaton used a portion of ABI’s assets to purchase property in Colorado, and
Gelbard used a portion to purchase a ranch in Agoura, California. Based on advice that he received, Gelbard had
title to the ranch held in ABI’s name.
Gelbard’s son moved to the ranch that year, and Gelbard moved to the
ranch in 2001.
In 2003, Unger became ABI’s
accountant. In 2004, he received
one-third ownership of ABI in exchange for a commitment to invest more than $1
million. Unger recorded a lien of $1.1
million against the ranch in the name of his wholly-owned entity Manatee Design
Group, Inc. In November 2004, Beaton
transferred title to the ranch from ABI to Unger as a gift, for no
consideration, because Unger could get a loan at a lower interest rate than
ABI. Unger obtained a loan of $2.5
million for the benefit of ABI secured by a deed of trust to the property.
Gelbard met Du Boise in 2004. In 2005, she moved in with him on the
ranch. Beaton and Unger induced Gelbard
to file for bankruptcy in October 2005.
In the summer of 2008, Unger was
represented by Hummer, Peterson, and RHD.
Unger filed an unlawful detainer action against Gelbard and Du
Boise. On August 4, 2008, Unger filed the
underlying action against Du Boise in federal court for money had and received,
breach of fiduciary duty, fraud, conversion, and an accounting. Unger alleged that he had advanced $1.3
million to Du Boise from 2005 to 2007, based on her false promises to use the
money to remodel the ranch, but the work had not been completed and Du Boise
refused to return the funds. Unger
sought $1.3 million from Du Boise.
Gelbard and Du Boise were evicted on
October 14, 2008. In 2008, Hummer and
Peterson left RHD and began working at H&C.
They took their work for Unger with them to H&C. In a motion for partial summary judgment,
Unger admitted that most of the communications about the funds were between
Gelbard and Beaton. However, he asserted
that Gelbard was Du Boise’s agent, and Beaton was Unger’s agent. Unger withdrew his claims for fraud, breach
of fiduciary duty, and accounting, which the trial court dismissed on February
22, 2009.
In 2010, Ufkes associated into the
case as trial counsel on Unger’s behalf.
A jury trial was held from March 9 through 11, 2010. At trial, Unger admitted that he had never
communicated with Du Boise in any manner, other than an introduction at a meal
in 2005 and a brief greeting while Unger attended a meeting. Unger also admitted that he knew the cost of
utilities at the ranch was between $6,000 and $8,000 per month. The evidence showed Unger deposited more than
$1 million into Du Boise’s account without having any agreement with Du
Boise. Du Boise’s evidence established
the funds were for Gelbard’s use and Du Boise was merely a conduit. ABI wrote in its books that the advances were
a “loan receivable†from Du Boise. The
funds were traceable to the mortgage of $2.5 million and a later mortgage of
$3.5 million, secured by the property, which Unger arranged and deposited in
his personal account. The evidence showed
that Unger never loaned any personal funds to Du Boise.
The jury returned its verdict on
March 11, 2010. They found Du Boise did
not receive money intended to be used to the benefit of Unger, and Unger did
not own, possess, or have the right to possess a specific identifiable sum of
money that he transferred to Du Boise.
The trial court entered judgment in favor of Du Boise that day. Unger and his attorneys never had any evidence
or probable cause to support the claims against Du Boise.
II. Peterson and RHD’s Special Motion to
Strike and Supporting Evidence
On May 23, 2011, Peterson and RHD
filed an anti-SLAPP motion on the ground that Du Boise could not establish a
lack of probable cause to pursue the action or that Peterson acted with
malice. The transfer of funds was never
at issue. The reasons for the transfer
came down to the parties’ conflicting explanations.
Peterson submitted his declaration
stating the following facts. Peterson
worked in RHD’s bankruptcy department when Unger contacted him to ask whether
Gelbard’s bankruptcy stay prevented eviction.
Based on Peterson’s analysis, RHD’s general litigation department
successfully pursued eviction. Unger
asked RHD to pursue recovery of $1.3 million transferred to Du Boise’s
account. The second matter was handled
by the general litigation department as well, although Peterson was kept
informed on the case and assisted in preparing the claims.
Hummer had the lead role in the case
against Du Boise. She compiled documents
showing dozens of wire transfers by Unger to Du Boise. At the time the claims were prepared,
Peterson had not met or spoken with Du Boise.
Based on the factual background supplied by Unger, verified by evidence
of bank transactions, he had no reason to question that Unger transferred funds
to Du Boise or that Unger transferred the funds for rehabilitation of the
ranch. He had no reason to question the
funds transferred for rehabilitation of the ranch were separate from funds
transferred to ABI for other purposes.
Peterson did not prepare the
complaint against Du Boise. The federal
court had begun requiring electronic filing of documents, but Hummer had not
taken the course to allow her to file documents electronically. Peterson reviewed the complaint and the
evidence, discussed the contents with the lead attorney assigned to the case
and Hummer. Based on this review,
Peterson felt the complaint’s allegations were supported. Peterson signed the complaint and filed it
electronically.
After October 20, 2008, Peterson
made no appearances in the case. In June
2009, he transferred to H&C’s office in St. Louis, Missouri. Four months later, Hummer accepted a position
in H&C’s office in Los Angeles.
H&C became Unger’s exclusive counsel, and RHD ceased to represent
Unger. Although some docket entries
after October 2008 list Peterson as the filing attorney, H&C support staff simply
used Peterson’s login information. The actual
documents reflect that they were filed by other H&C attorneys.
III. Ufkes and H&C’s Special Motion to
Strike and Supporting Evidence
Ufkes and H&C also filed an
anti-SLAPP motion on the ground that Du Boise could not establish the attorney
defendants lacked probable cause to pursue the underlying action or had filed
the complaint with malice. In addition, they
argued that the complaint was barred by the defense of unclean hands.
Ufkes submitted his declaration as
to the following facts. In January 2010,
he was asked to assist Hummer in preparing the case for trial and acting as
lead counsel. He never pursued the
action with any ill will or improper motive.
He did not pursue any cause of action that he knew to be meritless or
inconsistent with the facts represented by Unger and the evidence gathered
before trial. Shortly before trial,
based on conversations with Du Boise’s counsel, Ufkes agreed to dismiss Unger’s
causes of action for fraud, breach of fiduciary duty, and accounting. He formally dismissed them at a final status
conference.
Ufkes and H&C submitted the complaint
in the underlying action against Du Boise, as well as evidence from the summary
judgment motion and trial, to show that they had probable cause to pursue the
causes of action against Du Boise at all times.
A. Unger’s
Underlying Complaint
Unger’s complaint against Du Boise,
filed in August 2008, for money had and received, breach of fiduciary duty,
fraud, conversion and accounting alleged as follows. Unger acquired the ranch from ABI in November
2004. He owns the property pursuant to a
grant deed. Unger permitted Gelbard to
live on the property while it was being refurbished. Du Boise was Gelbard’s personal companion and
business associate. She moved into the
property in 2005. Gelbard and Du Boise
purported to assist Unger by facilitating the performance of improvements on
the property. Gelbard requested that
Unger provide the funds necessary to pay for refurbishments directly to Du
Boise, so Du Boise could pay workmen directly for the work performed on the
property. Du Boise agreed to participate
by receiving the funds and using them for the exclusive purpose of funding
refurbishments per Unger’s directives.
In reliance on the representations that all funds would be used to pay
for improvements to the property, Unger began sending funds to Du Boise for
that purpose. Unger listed numerous
specific transfers to Du Boise that he made based on requests from Gelbard and
Du Boise. Du Boise and Gelbard made each
request directly or with the assistance of Beaton, and each request was represented
to Unger as necessary to fund improvements to the property. Despite this, Du Boise did not use the funds
for the exclusive purpose of improving the property. The funds were used by Du Boise for her own
benefit and Gelbard’s benefit. In this
manner, Du Boise and Gelbard conspired to defraud Unger. Gelbard filed a petition for bankruptcy in
October 2005. As a result of Unger’s
transfers, Du Boise has been unjustly enriched in an amount not less than
$1,253,406.
B.
Evidence in Connection with Partial Summary Judgment Motion
Ufkes
and H&C also submitted the written letter of agreement dated June 12, 2003,
between ABI and Manatee. The agreement
stated that ABI, including Beaton and Gelbard, lacked funds to pay the mortgage
on the ranch and were in danger of losing the property to foreclosure. Unger agreed to loan $1 million to ABI in
order to bring the mortgage on the ranch current, fund renovations in
anticipation of selling the ranch as soon as possible, and advance funds for
the operating expenses of ABI, Gelbard and Beaton from time to time. ABI agreed to secure Unger’s note with a
second deed of trust on the ranch and compensate Unger upon sale or refinance
of the property. In addition, Unger
would be entitled to one third membership interest in ABI. The agreement was signed by Beaton on behalf
of ABI and by Unger on behalf of Manatee.
An amendment to ABI’s operating agreement dated March 18, 2004, and
signed by Gelbard and Beaton, gave Unger one-third interest in ABI in
consideration of his loans to ABI.
A grant deed dated November 14,
2004, transferred the ranch from ABI to Unger.
The grant deed states that it is a bonafide gift and ABI received
nothing in return, but also acknowledges receipt of valuable consideration.
Ufkes and H&C submitted Gelbard’s
October 2005 bankruptcy filing, in which he listed his one third ownership
interest in ABI as having no value. He
listed ABI as a creditor with a claim of $2.6 million. He also declared that he had no interests in
real property. Gelbard testified in his
bankruptcy examination that he was not employed for compensation, but was lucky
to have a successful girlfriend who paid his expenses.
They submitted a document prepared
by Du Boise in November 2006, which itemized extensive work performed on the
main residence, the pool cabana, ranch house, horse stalls, and
landscaping. General amounts were listed
for each category of work. For example,
under “landscape,†the documents listed payment of $36,731 for soil
preparation, equipment rental, purchase and installation of pots, and five
outdoor pavilion structures. The total
amount listed for maintenance and improvements was $429,078. Du Boise sent the document to Beaton. In July 2008, Beaton sent the document to
Unger, and Unger forwarded it to Hummer.
Ufkes and H&C submitted copies
of checks and wire transfers from Manatee to Du Boise’s account. In discovery, Unger obtained copies of Du
Boise’s bank statements showing payments for expenses, including regular debits
of $812 by “Jaguar Credit Auto [Payment],†as well as debits by “Daimler
Chrysler,†Costco, utility companies, TJ Maxx and doctor’s offices. They also received copies of the checks
written from the account by Du Boise.
C. Declarations in
Support of Summary Judgment Motion and Opposition
Ufkes and H&C submitted Unger’s
declaration of December 22, 2009, in support of his partial summary judgment
motion as to the following facts. When Unger
joined ABI, the company’s principal asset was the ranch, which ABI intended to
renovate and sell for profit. However,
ABI did not have the financial resources to prevent foreclosure. Unger agreed to loan ABI money to bring the
mortgage current. Upon the sale or
refinance of the ranch, it was agreed that all money due to Unger would be paid
in full from the proceeds and he would receive one third of the net sales
proceeds. Beginning in April 2005, Unger
began wiring funds to Du Boise to finance remodeling work. Most of his communications with Du Boise were
made through Beaton. Du Boise agreed to
use the funds exclusively for remodeling and refurbishment of the ranch. Extensive remodeling projects were planned
for the ranch, including repairing and replacing the plumbing, ongoing property
clearance, irrigation, landscaping, pool and cabana work, PVC fencing, and
repairing and refurbishing the kitchen floors and fixtures. Unger sent funds to Du Boise’s account for
this purpose, beginning with $20,000 on April 15, 2005. He listed all of the money transfers, for a
total of $1,303,406. He asked Du Boise
for an accounting, which she sent to Beaton on November 13, 2006. Satisfied that renovations were proceeding,
he forwarded more funds for the same purpose.
After he gained possession following the eviction, he found that the
improvements represented by Du Boise’s accounting had not been performed. The ranch had not been remodeled or
renovated. Other than the document sent
to Beaton, Du Boise has never explained where the money was spent. Du Boise and Gelbard entered the ranch again and
Unger evicted them for a second time in early 2009.
Ufkes and H&C also submitted
Gelbard’s declaration in support of Du Boise’s opposition to partial summary
judgment. Gelbard explained that to buy
the ranch originally, ABI wired funds from Gelbard’s share of profits into his former
wife’s checking account. His wife at the
time provided a cashier’s check for the deposit of $60,000. He took title in ABI’s name as part of an
asset protection plan, in the event that he were sued personally as a result of
his business transactions and became liable for damages. He disputed several actions taken by Beaton
and Unger, including management of ABI funds and books.
He believed that he was the legal
owner of the ranch, even though title was in ABI’s name. In 2004, Beaton and Unger told him that ABI
was out of money. They said Gelbard owed
ABI. As a result, unless and until
Gelbard could repay ABI, they intended to use the equity in the property to
make repairs and improvements to the ranch for the purpose of selling it, and
the proceeds would be used to pay off the mortgage and repay ABI any money that
Gelbard still owed. Gelbard reluctantly
agreed to their proposal.
Gelbard notes Unger received
mortgage proceeds of $2.5 million, secured by the ranch. $1.3 million was used to repay the prior
mortgage. Gelbard considers the
remaining $1.2 million to have been his money or ABI’s money. Unger advanced the funds to Gelbard, subject
to his express agreement with Beaton that ABI would be reimbursed from a sale
or refinance of the ranch. There was no
discussion or agreement that Du Boise or Gelbard would have to personally
reimburse Unger or ABI for the funds provided to him. He also believes Beaton and Unger asked him
to have Du Boise open an account to transfer Gelbard’s funds from the equity in
the ranch to Gelbard as part of a scheme to defraud him. ABI would provide funds for his business
expenses, living expenses and maintenance of the ranch. The funds were not for Du Boise’s use. They were never exclusively for repairs and
improvements to the ranch. Du Boise was
simply a conduit for ABI to make payments to Gelbard for business, personal and
property expenses. For example, he requested
$17,500 for his divorce attorney in April 2005, and there is a corresponding
deposit in Du Boise’s account on April 18, 2005.
One of the exhibits attached to
Gelbard’s declaration was a portion of Unger’s deposition taken in October
2006, in a federal case related to potential securities law violations. Gelbard received the deposition testimony in
2007 or 2008. Unger testified that he
didn’t consider himself to own the ranch.
He had a contractual relationship with ABI. The house was in his name, because it gave
ABI an advantage in obtaining a lower interest rate and a longer term. Unger had always considered the ranch to be
owned by ABI, and had always represented it as such on ABI’s books and reported
it that way to third parties such as the Internal Revenue Service.
Ufkes and H&C submitted Du Boise’s
declaration in opposition to partial summary judgment. Du Boise declared that due to Gelbard’s
severe dyslexia, she assisted him with all of his paperwork in his business and
personal affairs. When she moved to the
ranch, it was in a state of substantial disrepair as a result of damage to the
property by contractors who were under Unger’s supervision in 2004. The property required extensive routine
maintenance. It was her understanding
that Gelbard and Unger discussed the work to be done on the property and the
funds to pay for it. Du Boise was not a
party to any of the discussions and never entered into any agreement with Unger
regarding repairs and improvements to the ranch or the use of funds that were
to be provided for such repairs and improvements or any other purpose. All of Du Boise’s discussions regarding the
use of the fund were with Gelbard.
Addressing Unger’s assertion in his declaration that discussions and
agreements regarding the use of the funds were made through Beaton, Du Boise
declared that she never entered into any agreement with Beaton about the
repairs and improvements to the ranch or the use of the funds to be provided
for repairs and improvements. She denied
being party to any agreement to deposit $1.3 million in her bank account to be
used solely and exclusively for repairs, maintenance and improvements to the
ranch. At Beaton and Unger’s suggestion,
Gelbard had her open the account so ABI could provide funds to him for business
expenses, living expenses and maintenance of the ranch. The funds were never for Du Boise and never
exclusively for repairs or improvements to the ranch. She was simply a conduit for ABI to continue
making payments to Gelbard.
Du Boise believed any funds advanced
to Gelbard for repairs, maintenance and improvements to the ranch came from the
equity in the property that was being reinvested in the property. If Gelbard had any debt to ABI when the
property was sold, his debt would be paid from the sale proceeds. There was no discussion or agreement with
Unger by anyone that Gelbard or Du Boise would be responsible for repaying
funds deposited in Du Boise’s account.
She believes the funds deposited in her account belonged to Gelbard, not
Unger or ABI. Also, ABI accounted for
the funds in its books and tax returns, which contradicts Unger’s claim that he
advanced personal funds.
Du Boise noted that bank statements
in Unger’s possession show payments for utilities. She pointed out checks that she wrote for
materials totaling $21,000, and checks she wrote to cash for $59,500, which
Gelbard used to pay subcontractors.
Unger never asked for receipts.
She and Gelbard kept meticulous records of ranch expenditures, but left
them at the ranch when they were evicted and Unger has not returned them. She attached “representative†invoices from
her contractor brother for work performed on the property. Du Boise asserted that some repairs might not
have been obvious to Unger when he inspected in 2008, but other improvements
were obvious. Du Boise argued that there
were multiple triable issues of fact, including whose funds were placed in the
account, whether there was any agreement for the use of the funds, whether the
funds were actually transferred to Gelbard, whether funds were in fact used for
repairs, maintenance and improvements, and whether there was any agreement for
Unger to be repaid by Du Boise.
The trial court denied the motion
for partial summary judgment. The minute
order states: “[Unger] has not overcome
[his] burden of establishing lack of genuine dispute of material facts. [Citation.]
Indeed, there is very little, if anything at all, that is undisputed in
this case. Most importantly, the formation
of the underlying agreement, which is at the core of the lawsuit, is
disputed. The agreement is not in
writing. The main evidence that [Unger]
proffers in support of contract-formation is a self-serving declaration that
states the parties entered into an agreement.
That declaration is contradicted by another self-serving declaration
that [Du Boise] has filed. In essence,
in the absence of any concrete evidence to advance either side’s position, this
case boils down to determining which party is more credible. And that is exclusively in the province of
the fact finder and inappropriate for summary judgment. [Unger’s] Motion is DENIED.â€
D. Testimony at
Trial
Ufkes and H&C submitted a
portion of Unger’s testimony at trial as well. Unger explained that Du Boise had a degree in
architecture, connections to wealthy people who might be interested in
purchasing the ranch, and her brother was in the construction business. He met with Du Boise at the house to discuss
her ideas for improvements. His
understanding was that “we†would continue to improve the property while
Gelbard and Du Boise lived there and sell it.
When Beaton forwarded Du Boise’s itemized list of expenditures to him,
Unger requested documentation to corroborate the expenses. He never received any receipts to support the
figures that Du Boise claimed on her list.
After Gelbard and Du Boise were evicted and Unger was able to view the
property, he found the floors inside the house had been destroyed, little
maintenance had been performed on the exterior, the pool was not functional and
the pool deck was destroyed, the landscaping that he expected had been allowed
to die or never installed, and the horse stalls and fencing had not been
maintained in any way that he could ascertain.
It did not appear to Unger that even a fraction of the money that he
sent to maintain and improve the ranch had been used for that purpose. The work reflected on Du Boise’s list had not
been completed. He has never received
any receipts for work performed at the ranch.
In addition to amounts deposited in Du
Boise’s account, Unger also sent between $700,000 and $800,000 to Gelbard. The funds sent to Gelbard were initially
advances against his ownership interest in the future profits of the ranch once
it was sold. Unger also paid for Gelbard’s
divorce lawyers, guaranteed the school loan for his daughter, and paid for other
personal crises that Gelbard experienced.
Ufkes and H&C submitted Gelbard’s
trial testimony as well. Gelbard needed
$20,000 for a divorce attorney in April 2005.
His credit had been destroyed in his divorce and by other matters, so he
did not have his own checking account.
Unger suggested Gelbard ask Du Boise to open an account in her name to
receive money from ABI for Gelbard.
Gelbard asked Du Boise to open the account, but did not tell her that it
was for ABI to send him money. Gelbard
was not a signatory on the account. Du
Boise had to take money out for him.
When Gelbard needed more money, he asked Beaton for it. He stated that between $600,000 and $800,000
was used to refurbish the property.
However, he clarified that by refurbishing, he meant maintenance and
repairs. No remodeling took place. There were no permits and there was no
contractor. In addition, they spent
$300,000 for utilities.
Outside the presence of the jury,
before closing arguments, the court told the parties that the verdict could go
either way. The court could see Unger
coming back with nothing, or with a substantial judgment. The court could not predict which way the “he
said, she said†case was going to come out, which the court advised the parties
to consider.
IV. Hummer’s Special Motion to Strike and
Supporting Evidence
Hummer filed an anti-SLAPP motion on
the same grounds as the other defendants, namely, that she had probable cause
to pursue the underlying action and Du Boise could not establish the element of
malice. Hummer submitted Unger’s
declarations and evidence from pre-trial
proceedings in the underlying case, as well as trial testimony.
Hummer submitted her declaration as
to the following facts. In August 2008,
a litigation partner at RHD asked her to take over Unger’s unlawful detainer
action against Gelbard and Du Boise. She
learned Unger had separate claims that he wanted to pursue pertaining to money
he provided Du Boise to maintain, refurbish and repair the ranch for eventual
sale. Hummer spent more than 15 hours
reviewing Unger’s documents and researching his claims. Unger’s records showed that he forwarded
funds to Du Boise. His records were
substantiated by Du Boise’s bank records obtained in discovery. Du Boise also testified at trial that she
received funds from Unger. Unger
provided Hummer with the written account prepared by Du Boise, which showed
that she communicated with him about repairs and refurbishment of the
ranch. The records she received from
Unger led Hummer to conclude that there was factual support for his
claims.
Hummer believed a common count for
money had and received was supported by the facts that Unger sent money to Du
Boise, which he said was to be used for his benefit as owner of the ranch. She thought a cause of action for conversion
was supported by the fact that Unger could identify the funds that he sent Du
Boise and she had not used them as he said they had agreed to use them. The accounting cause of action was a remedy
to obtain an accounting for the funds that Du Boise admitted receiving from
Unger.
Hummer believed a cause of action
for breach of fiduciary duty could be based on the facts Unger told her that Du
Boise agreed to oversee repairs and held herself out as a trained architect and
designer. It was Hummer’s understanding
that Du Boise presented ideas for improvements when Unger visited the property
and had agreed to manage contractors and other personnel who were performing
work at the ranch. As part of these
responsibilities, Du Boise agreed to be the paymaster and accountant in
managing Unger’s funds for the repair and refurbishment work at the ranch. In Hummer’s view, by agreeing to these
responsibilities, Du Boise undertook financial responsibilities toward Unger.
Hummer believed a fraud cause of
action was supported by facts that Du Boise promised Unger to use the funds
that Unger provided for the benefit of the property by performing repairs and
refurbishment to improve the property for eventual sale. Unger continued to give money to Du Boise in
reliance on her promise. Later, Unger
found that the funds were not used as he intended.
Hummer had not met Du Boise when she
filed the complaint. She did not file it
with any malice. Based on Hummer’s
understanding of the facts, as an advocate for Unger, she believed these were
viable claims against Du Boise. Approximately
one year after the complaint was filed, Hummer left RHD and began working at
H&C. Unger’s action against Du Boise
was transferred to H&C at the same time.
In early 2010, Ufkes became Hummer’s supervisor and he took the case to
trial.
V. Unger’s Joinder Motion
Unger filed a motion for joinder in
the anti-SLAPP motions of Ufkes, H&C, Peterson, and RDH. He submitted his declaration as to the
following facts. He sued Du Boise to
recover more than $1 million that he had sent her for the purpose of improving
the ranch. He could not monitor the improvements,
because he lives in Colorado. After
evicting Gelbard and Du Boise, it was apparent that the money was not spent to
improve the ranch. Unger has no malice
toward Du Boise and did not prosecute the underlying action for an improper
purpose. He relied on his legal counsel
as to how best to recoup the money paid to Du Boise which was not used for its
intended purpose, and he followed their advice.
VI. Du Boise’s Opposition to the Special
Motions to Strike and Supporting Evidence
Du Boise opposed each of the special
motions to strike and Unger’s joinder.
A. Opposition to
Hummer’s Special Motion
Du Boise opposed Hummer’s anti-SLAPP
motion. All of her arguments concerning
the lack of probable cause to pursue the five causes of action were presented
under one heading. She argued that
Hummer never had probable cause to pursue a fraud claim, because it was
undisputed that Unger and Du Boise never communicated with one another about
the use of the funds. In addition, no reasonable
attorney would have brought a claim for breach of fiduciary duty, because Unger
knew the monies he transferred to the account were partnership funds for
Gelbard’s use, and Gelbard and Unger had expressly agreed Due Boise would
merely act as a conduit. Unger knew Du
Boise never had any liability for the use of the funds, to account for them or to
repay them.
Unger, Hummer, Peterson and RHD had Du
Boise’s 2006 accounting in their possession two weeks before the complaint was
filed, showing $429,078 was used to refurbish the ranch. Du Boise asserted that based on this
evidence, Hummer and Peterson should have doubted Unger’s statements that none
of the monies had been used to refurbish the ranch, that Du Boise had never
accounted for the use of the funds, and that Unger was entitled to repayment of
the entire amount deposited into the account.
Du Boise suggested that Hummer should have written a demand letter and
driven by the property to look at it. Hummer
should have been suspicious because there was no agreement or representation in
writing. She should have doubted Unger’s
version of the facts, since he lacked documentation to support his story.
Du Boise further argued that even if
probable cause existed when the complaint was filed, there was no probable
cause to pursue the claims when the attorneys received bank records that showed
payments for refurbishment. Du Boise
produced hundreds of pages of receipts and invoices showing hundreds of
thousands of dollars spent to refurbish the ranch. Hummer and Peterson should have realized from
the bank records and receipts that a lawsuit seeking recovery of the full claim
could not succeed, and therefore, considered whether the claims were completely
without merit. Du Boise also argued that
Unger’s declaration undermined his claim that Du Boise had to repay the entire
amount, because he stated that he had expected to be repaid from the sale
proceeds.
Du Boise claimed it was undisputed
that Du Boise’s attorney asked for evidence to support Unger’s claims in
December 2009. Hummer admitted that she did
not have evidence to support the fraud, breach of fiduciary duty, and
accounting claims, because Unger never communicated with Du Boise, so Du Boise
could not have made any representations or agreement regarding the use of the
funds, obligation to account for them, or to repay. Unger and his attorneys withdrew the claims
for fraud, breach of fiduciary duty and accounting, but refused to dismiss them.
Du Boise’s attorney had to ask the court
to dismiss the claims at the pre-trial conference.
Du Boise argued that the conversion
claim should not have been brought because it was decided at trial the funds
were not Unger’s money. Under direct
questioning from the court, Unger admitted that they were partnership funds
obtained by Unger from loans against the ranch.
Du Boise asserted that Hummer and Peterson should have determined the
source of the funds before filing the complaint. Upon learning funds did not belong to Unger,
no reasonable attorney would have prosecuted a conversion claim.
She argued that the common count for
money had and received also failed because the funds did not belong to Unger. No reasonable attorney would have brought the
claim, because they could not prove the funds belonged to Unger or were to be
used for Unger’s benefit. Du Boise also
argued that she could establish malice.
B. Opposition to
Ufkes and H&C’s Motion to Strike
Du Boise opposed Ufkes and H&C’s
motion to strike as well. Her arguments were
hopelessly muddled, however, as to which attorney should have known what
facts. Du Boise made the same arguments
that she made in opposition to Hummer’s motion in order to establish that Ufkes
and H&C lacked probable cause to pursue the five different claims. Du Boise asserted that by the time of trial, in
light of evidence from Du Boise, including bank records and Unger’s statement
that he expected to be repaid from the sale of the ranch, Ufkes and H&C
should have examined Unger more closely,
Du Boise also argued that Ufkes
failed to submit evidence concerning his knowledge of the facts. Therefore, under an objective standard, he
did not show that he had probable cause.
She concluded that she had shown a probability of prevailing based on
the complete absence of evidence to support the claims asserted against her, “as
was finally admitted by Unger at trial,†demonstrating that there was no
probable cause for one or more of the claims. She argued that she could establish malice
without mentioning Ufkes or any evidence pertaining to Ufkes.
C.
Opposition to Peterson and RHD’s Motion to Strike
Du
Boise made substantially similar arguments in opposition to Peterson and RHD’s anti-SLAPP
motion as she had made in opposition to the other attorneys’ motions. She
asserted that Peterson also should have doubted Unger’s statements that none of
the monies were used to refurbish the ranch, Du Boise had never accounted for
the funds, and Unger was entitled to repayment of the entire amount deposited
into the account. Once Peterson saw Du
Boise’s accounting, he should have written a demand letter and driven by the
property to look at it. Hummer and
Peterson should have realized from the bank records and receipts that a lawsuit
seeking recovery of the full amount could not succeed and maybe the claims were
totally without merit.
Du Boise also asserted again that
her attorney asked Hummer in December 2009 for evidence supporting Unger’s
claims. Hummer admitted that she did not
have evidence to support the fraud, breach of fiduciary duty, and accounting
claims, because Unger never communicated with Du Boise, and therefore, Du Boise
could not have made any representations or agreement regarding the use of the
funds, obligation to account for them, or to repay them. She also argued that
she could show malice.
D. Opposition to
Unger’s Joinder
Du Boise opposed Unger’s joinder in
his attorneys’ motions to strike. She
argued that he had not established a defense based on advice of counsel. He could not show that he fully disclosed all
of the relevant facts, because he never communicated with Du Boise or had any
agreement with her. Unger knew all of
the discussions were held between Gelbard and Beaton. Unger also knew the funds transferred to Du
Boise’s account were ABI funds for Gelbard’s unrestricted use. She argued that malice could be shown as
against Unger as well.
E.
Evidence in Opposition to Special Motions to Strike and Joinder
Du
Boise submitted several documents in support of her oppositions. In a 27-page declaration, she reiterated many
of the statements and conclusions from her previous declarations, as well as
the following facts. The underlying
action was one of a dozen separate lawsuits, legal proceedings and transactions
between Unger, ABI, Gelbard, and Du Boise in the past eight years. Contractors under Unger’s supervision caused
significant damage to the ranch in 2004 that required extensive repairs. Gelbard and Unger discussed the work that
needed to be done and the funds necessary to pay for the repairs. Du Boise’s understanding was that Unger told
Gelbard to have Du Boise open a bank account to receive Gelbard’s partnership
payments in order to keep ABI out of Gelbard’s divorce. Du Boise acted as a conduit between ABI and
Gelbard for the continuation of partnership payments.
Du Boise sent a written accounting
to Beaton in November 2006 for amounts totaling $429,078, which Unger,
Peterson, Hummer, and RHD received two weeks before filing the underlying
complaint. She never made any agreements
about the use of the funds. All of her
discussions about the funds were with Gelbard, who controlled their use. Her understanding was that the funds provided
to Gelbard through her bank account, which were used in Gelbard’s sole
discretion, came from loans secured by the ranch being reinvested in the
property.
Du Boise declared that her bank
records, which Unger and his attorneys received in July 2009, showed at least
$500,000 of the funds had been used to repair and refurbish the ranch. Specifically, she noted payments for
utilities were made from the account in 2006 and 2007. In addition, copies of 21 checks showed
payments to entitles that appear to supply labor and materials for repairs and
improvements. In late 2009, she produced
to Hummer and H&C hundreds of pages of receipts and time sheets that had
been in her brother’s possession. From
these, Gelbard and Du Boise had reconstructed a detailing accounting of
$600,000 spent for maintenance, repairs and refurbishment of the ranch.
Based on Du Boise’s evidence, Unger,
Hummer, Peterson, and H&C knew in December 2009 that there was no
communications between Unger and Du Boise, no agreements orally or in writing,
no restrictions on the use of the funds by Gelbard, and no obligation to repay
the funds because he had expected to be repaid from net proceeds.
In addition to her own declaration, Du
Boise submitted Gelbard’s 25-page declaration.
However, Gelbard did not add any relevant admissible evidence that has
not already been described. Du Boise
submitted evidence of multiple other lawsuits between the parties as well.
Du Boise submitted a larger portion
of Unger’s 2006 deposition testimony from the federal securities violations
case. Unger stated that ABI owed Manatee
approximately $1.1 million. He affirmed
that he held legal title to the ranch and that ABI received nothing in return
for transferring title to him. ABI
transferred title to Unger so that he could use his personal credit to
refinance the mortgage at a better interest rate than was offered for
commercial loans.
Du Boise also submitted the
declaration of her attorney John Fuchs as to the following facts. Fuchs represented Gelbard in his bankruptcy
proceeding and another action. Fuchs
substituted in to the underlying case to represent Du Boise in December
2009.
On February 1, 2010, he asked Hummer
to provide evidence in support of Unger’s claims for fraud, breach of fiduciary
duty and accounting. Hummer was not able
to provide evidence. Hummer admitted
that Unger had never communicated with Du Boise, there were no agreements
between Unger and Du Boise, and Du Boise never made any representations to
Unger about anything. Hummer and H&C
withdrew the claims for fraud, breach of fiduciary duty and an accounting. At the pre-conference trial, Ufkes and Hummer
informed the trial court that they would be proceeding on two claims only. Fuchs asked the court to dismiss the
remaining three claims, which the court did.
At trial, there was no evidence of
any representations or promises made by Du Boise to Unger, and no evidence of
any agreement between Du Boise and Unger.
Unger admitted that he never communicated with Du Boise, except
greetings in a social setting. Unger
admitted the utility costs for the property were between $6,000 and $8,000 per
month, so he was aware that Gelbard had spent approximately $100,000 per year
for three years for utilities. The evidence at trial showed ABI booked the
advances to Du Boise’s account as a “loan receivable†from Du Boise, because
the funds belonged to ABI and not Unger.
There was no evidence that Du Boise used any funds for her personal
purposes, as had been alleged in the complaint.
Fuchs also reiterated many facts and conclusions stated previously.
F. Evidentiary
Objections
Du Boise filed objections to the
declarations of Hummer, Unger, and Ufkes.
VII. Pleadings in Reply
Ufkes and H&C filed a reply. They argued that the partial accounting,
without receipts, supported Unger’s claim that an accounting was required and
was clearly inadequate. They also noted
that there was no evidence Ufkes or H&C prosecuted the underlying action
with malice. They argued that Du Boise’s
declaration established unclean hands.
She admitted that she acted as a conduit for the funds and was aware of
Gelbard’s bankruptcy and divorce. None
of the funds were reported in the bankruptcy or divorce proceedings. Therefore, she is complicit in the scheme to
defraud Gelbard’s creditors and former wife.
Peterson and RHD filed a reply in
which they similarly argued that Du Boise’s accounting corroborated Unger’s
testimony and supported finding probable cause.
If Gelbard was entitled to use the funds for any purpose in his
discretion, there was no reason to provide an accounting. Moreover, the defendants had no reason to
assume the accounting was reliable or accurate.
Peterson and RHD noted that as the recipient of the funds, Du Boise was
a proper defendant. The fact that Gelbard
might have been an additional defendant in the underlying action did not alter
that Du Boise was also a proper defendant.
They asserted that most of the litigation between the parties has been
resolved against Gelbard and Du Boise.
Hummer also filed a reply, citing the
evidence in support of each cause of action that had been filed and maintained
against Du Boise. Hummer filed 47 pages
of objections to Du Boise’s declaration.
Ufkes and H&C filed 45 pages of objections to Du Boise’s declaration
and attached exhibits, and 45 pages of objections to Gelbard’s declaration and
attached exhibits. They filed objections
to Fuchs’s declaration as well. Peterson
and RHD also filed 44 pages of objections to Du Boise’s declaration, 37 pages
of objections to Gelbard’s declaration, and objections to Fuchs’s declaration.
VIII. Hearing and Further Briefing
A hearing was held on July 28, 2011,
on the anti-SLAPP motions and Unger’s motion for joinder. The court issued a tentative ruling focusing
on Fuchs’s declaration that Hummer admitted having no evidence to support certain
causes of action. Hummer’s attorney
argued that although the trial court could not weigh or evaluate credibility, Fuchs’s
declaration was so unbelievable and unsupported by any corroboration, including
at trial, that the trial court should disregard it. Even if the court considered it, probable
cause is an objective standard. Each of
the defense attorneys argued similarly.
Fuchs argued that Du Boise was a
pawn in the underlying action, and if there had been an action to pursue, it
was between ABI and Gelbard. He also
argued that no one requested the accounting transmitted by Du Boise in
2006. “These were partnership funds,
A.B.I. funds. Mr. Gelbard is a
partner. He has a fiduciary duty to the
partnership to account for funds. This
is all he was doing.†He argued that in
cross-examination at trial, Unger admitted there were no agreements, there were
no representations, and his claims of meetings with Du Boise were false. He argued that the jury weighed the parties’
credibility and concluded Unger was a liar, so the issue is when the attorneys
knew he was lying. He stated that he
asked Hummer for evidence of an agreement between Unger and Du Boise, and she
had none. He asked for evidence the
money was supposed to be used solely for the ranch and she had none. Ten days later, three causes of action were
withdrawn, although Fuchs had to ask the court to dismiss them.
On August 18, 2011, the trial court
ordered a further hearing on the effect of Hummer’s admission, as set forth in
Fuchs declaration. Specifically, his
declaration that Hummer admitted one month before trial that Unger never
communicated with Du Boise, Unger had no agreement with Du Boise, and Du Boise
never made any representations to Unger about anything, on the probable cause
analysis as to Peterson and Ufkes.
Each of the attorneys filed further
briefing. Du Boise also filed a
supplemental brief. She argued all of the
evidence again, including Hummer’s admission, as set forth in Fuchs’s
declaration, that Unger and his attorneys “had neither any documentary evidence
nor any credible testimony, to show any agreement with Du Boise, any
representations by her to Unger or any basis for a fiduciary duty by her to
Unger.†She asserted that Hummer’s
admission was confirmed in correspondence between Hummer and Fuchs. Du Boise argued that Peterson and Ufkes were
jointly and severally liable, because Hummer, as an attorney of record in the
underlying action, was an authorized agent for them and both law firms. She recited facts to support finding agency.
Du Boise argued that the defendant’s
reliance on Unger’s statements at trial concerning his agreement with Du Boise
and representations regarding the use of the funds simply created a factual
dispute as to their knowledge before filing and during prosecution of the
action, because of the testimony of other witnesses and the documents in their
possession showed that Unger’s statements were untrue.
Du Boise submitted a supplemental
declaration asking the court to take judicial notice of the entire trial
transcript in the underlying action.
Unger testified that he met with Du Boise two or three times and discussed
her ideas for remodeling the house. Unger admitted that a statement in his
declaration that he asked Du Boise for an accounting was in error, because he
would have asked Gelbard. His dealing
were primarily with Gelbard. Gelbard
would request Unger put money into Du Boise’s account. Unger signed Du Boise’s name on the backs of
checks to deposit them in Colorado into her account. Du Boise did not authorize him to sign her
name and he did not contact her in any way to tell her the amount put in the
bank. Unger testified that it was the
fastest way to get money to them.
Du Boise testified that she wrote
checks for cash from her account at Gelbard’s request. Gelbard directed the use of the funds. Gelbard testified that Unger asked him to ask
Du Boise to open a bank account to receive funds. Gelbard asked her, and Du Boise opened the
account. Gelbard did not tell Du Boise
the purpose for opening the account.
Gelbard would call Beaton or Unger to request funds, which Unger
deposited in Du Boise’s account. He had
no oral agreement or understanding with Unger that the funds would be used
solely to repair and refurbish the ranch.
He understood the funds were from ABI.
Gelbard was not a signatory on the bank account. Du Boise had to take the money out. He directed Du Boise to withdraw cash and write
checks to pay his attorney. Gelbard
testified that certain plumbing installation work that was done would not have
been visible after it was completed.
Cash taken out of the account was used almost entirely to pay labor costs. In January 2006, Gelbard and Unger had a
falling out. After that, Gelbard
requested funds from Beaton.
Du Boise also submitted an unwieldy,
verbose 25-page supplemental declaration by Fuchs. As to the particular conversation at issue,
Fuchs carefully declared that Hummer admitted she had “no documentary evidenceâ€
in support of at least three claims against Du Boise. Fuchs provided letters, pleadings and other
documents which he claimed confirmed Hummer’s admission. However, the vast majority of the letters
were authored by Fuchs and made the same claims Du Boise had made throughout
the underlying action. In fact, Hummer
sent a letter on December 18, 2009, in which she stated, “I do not believe
further discussions with you about the motion [for partial summary judgment]
will be fruitful as I doubt you will be able to convince me, as you tried at
length yesterday, that Rodney Unger’s claims are without merit or that a motion
is not warranted.â€
In a letter dated February 1, 2010,
Fuchs noted after reviewing Hummer’s contentions for trial, “it appears that
you decided in early January to drop two more of the five claims . . . . However, it now appears that you withheld
that information at the time of our face-to-face pretrial meeting on January 20th.â€
A series of settlement demands are
exchanged. Hummer advocates Unger’s
position and does not suggest in any way that there is no evidence to support Unger’s
claims. In a letter dated February 9,
2010, Fuchs states, “Here, you have now admitted that you never had any
evidence to support three claims that have now been withdrawn and should be
dismissed.â€
In a confidential settlement
conference brief dated February 11, 2010, Fuchs explains that he asked Hummer
on January 20th, 2010, “to explain Unger’s evidence of an express
agreement between the parties requiring that the funds transferred to Ms. Du
Boise were to be used exclusively to repair and refurbish the
Ranch. [¶] After 18 months of prosecuting this action
based on such an express agreement, Hummer admitted that there was no
such agreement between Unger and Ms. Du Boise, and that Unger’s assertion of an
express agreement was based on statements Ms. Du Boise allegedly made to
Gelbard, who allegedly made statements to Beaton, who allegedly made statements
to Unger, regarding the alleged exclusive use of the funds for the Ranch. I advised Ms. Hummer that these alleged
statements constituted triple hearsay and were unlikely to be admissible. She responded by claiming that Beaton and
Gelbard were agents of their principals, which she asserts is an exception to
the hearsay objection. Unfortunately for
Hummer, since she never took the depositions of either Ms. Du Boise or Gelbard,
they will testify that there was no such agreement, and that the funds
transferred by Unger to Ms. Du Boise, actually belonged to Gelbard and were
provided to him for his personal and business expenses by ABI, as a
continuation of such transfers that had been occurring since 1999.â€
“I also asked Hummer for her
evidence of fraud and breach of fiduciary duty, but she was unable to detail
any specific representations by Ms. Du Boise to Unger, or concealment of
material facts from Unger, since these parties met on no more than two or three
occasions and never spoke to each other regarding these funds or any other
substantive topic. I also asked Hummer
to explain the basis for the breach of fiduciary duty claim against Ms. Du
Boise, since there was no relationship between Unger and Ms. Du Boise, let
alone a fiduciary one. She could not
provide me with any evidence of a fiduciary relationship, which is also
required for Unger’s accounting claim.â€
In a letter to Hummer dated March 1,
2010, among other issues, Fuchs states, “When we first entered this case, you
stated to me that there was ‘an agreement’ between Unger and Du Boise that the
funds deposited into her account would be used exclusively to repair and
refurbish the Ranch. When I asked for a
copy of that ‘agreement,’ you admitted that it was an oral agreement, and when I
asked you to identify the parties to the agreement, you claimed that it was
between Robert Beaton and Allen Gelbard [], and you claimed that each of them
was acting as an agent for their principals.
We vehemently disagree, and we assert that there was never any such
agreement.â€
Peterson and RHD filed objections to
the declarations of Du Boise and Fuchs.
Hummer joined in the objections.
Ufkes and H&C filed evidentiary objections as well.
A hearing was held on September 9,
2011. Defendants argued that Fuchs’s
supplemental declaration clarified his earlier declaration. The court noted the implication of Fuchs’s
original declaration was that Hummer believed Unger’s testimony was false. An attorney who appeared in place of Fuchs at
the hearing argued that Fuchs’s original declaration had not been limited to
documentary evidence, but encompassed all evidence. The trial court took the matter under
submission.
On October 3, 2011, in a 31-page
minute order, the court ruled expressly on the parties’ objections. The court granted the special motions to
strike of Peterson, RHD, Hummer, Ufkes, and H&C. The court denied Unger’s special motion to
strike by way of joinder.
Du Boise filed a motion for
clarification, reconsideration or a limited discovery order. Du Boise noted Unger had filed a
cross-complaint for indemnification against his attorneys. She argued that limited discovery should have
been ordered. She filed another
declaration by Fuchs in support of her motion.
Hummer opposed the motion for reconsideration and filed objections to Fuchs’s
declaration. Peterson and RHD opposed
the motion, requested sanctions, and filed evidentiary objections. Ufkes and H&C opposed the motion as well. Each submitted documents and reporter’s
transcripts as well. Du Boise filed a
reply arguing that the cross-complaint presented new facts. A hearing on the motion for clarification was
held on November 16, 2011. The court
denied the motion. Du Boise and Unger
each filed a timely notice of appeal from the court’s order granting the
attorneys’ anti-SLAPP motions and denying Unger’s motion for joinder.
DISCUSSION
I. Standard of Review
“In deciding an anti-SLAPP motion,
the trial court must ‘engage in a two-step process. First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action is one arising
from protected activity. . . . If the
court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim.’ (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)†(Johnson
v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1103 (Johnson).) The first step is not disputed in this case,
because the anti-SLAPP statute applies to malicious prosecution claims. (Daniels v. Robbins (2010) 182
Cal.App.4th 204, 214-215 (Daniels).)
“‘[T]o establish a probability of
prevailing on the claim [citation] . . . , the plaintiff “must demonstrate that
the complaint is both legally sufficient and supported by a sufficient prima
faci
| Description | Plaintiff, cross-defendant, and appellant Lisa Du Boise appeals from an order granting three special motions to strike under the anti-SLAPP statute,[1] Code of Civil Procedure section 425.16,[2] and an order awarding attorney fees in favor of defendants, cross-defendants, and respondents Rosslyn Hummer, Frederick J. Ufkes, Eric Peterson, and the law firms of Rutter, Hobbs & Davidoff, Inc. (RHD), and Hinshaw & Culbertson, LLP (H&C), attorneys in this malicious prosecution action. The attorneys represented Rodney Unger in the underlying action to recover funds that he deposited in Du Boise’s bank account. On appeal, Du Boise contends: 1) the trial court abused its discretion in making evidentiary rulings; 2) the attorneys lacked probable cause to pursue one or more of the causes of action in the underlying case; and 3) the trial court abused its discretion by awarding excessive attorney fees. Unger appeals from the portion of the trial court’s order denying his motion for joinder in the anti-SLAPP motions. Unger contends the trial court improperly weighed his credibility and the evidence showed he had the same probable cause as his attorneys to pursue the underlying action. We conclude Du Boise failed to show that the attorneys lacked probable cause to pursue the causes of action in the underlying case. Du Boise has not shown the evidentiary rulings have an impact on our determination on the merits. The trial court properly exercised its discretion to reduce the attorney fee requests far beyond the amounts incurred and no abuse of discretion has been shown on appeal. Unger’s motion for joinder in the anti-SLAPP motions was properly denied, however, because issues of credibility exist that can only be resolved by a finder of fact. Therefore, we affirm the order granting the anti-SLAPP motions and denying Unger’s joinder, and we affirm the order awarding attorney fees. |
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