hukartsi
v. Kesselman
Filed
10/19/12 Shukartsi v.
Kesselman CA2/8
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
ELAN SHUKARTSI et al.,
Plaintiffs and Appellants,
v.
LYNN NELSON KESSELMAN et al.,
Defendants and Appellants.
B235190
(Los
Angeles County
Super. Ct.
No. SC109828)
APPEAL from orders of the
Linda
J. Lefkowitz, Judge. Affirmed in part;
reversed in part.
Enenstein & Ribakoff, Darren S.
Enenstein and Teri T. Pham for Plaintiffs and Appellants.
Law Offices of Lisa M. Howard, Lisa
M. Howard; and Lynn Nelson Kesselman, in pro. per., for Defendants and
Appellants.
___________________________
The trial court
denied a defendant’s special motion to strike a complaint pursuant to the
anti-SLAPP statute. (Code Civ. Proc.,
§ 425.16.)
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trial court denied plaintiffs’ request for attorney’s fees. (§ 425.16, subd. (c).) Both sides appeal. We affirm the order denying the anti-SLAPP
motion; we reverse the order denying attorney’s fees.
FACTS
Background
Plaintiffs
and appellants Elan Shukartsi and Dove Shukartsi Mayo are the adult children of
Moshe Shukartsi (now deceased) and Corrine Shukartsi (now deceased). Moshe and Corrine were married for more than
30 years. They acquired significant
wealth and assets during their marriage, including business, personal and real
estate holdings. Moshe and Corrine’s
estate planning included the creation of the Shukartsi Living Trust dated October 18, 1990, as amended and
restated on February 14, 1995. Moshe died in 2001.
In 2005,
Corrine began dating defendant and appellant Lynn Nelson Kesselman,
a soi-disant psychotherapist.
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residence on Burlingame Avenue. At about the same time, Corrine began
providing Kesselman with $6,000 per month pursuant to an “irrevocable lifetime
grant.†Kesselman thereafter
continuously pressed Corrine to marry him; she eventually agreed. They executed a
Kesselman with $10,000 per month (the $6,000 per month noted above, plus
another $4,000 per month), along with further living and professional expenses.
The PMA also granted Kesselman specified
rights to reside in the Burlingame Avenue
property. In April 2008, Kesselman and
Corrine were married in Las Vegas.
In
September 2010, Corrine died from
to metastatic cancer
which was diagnosed for the first time eight days before she died. After Corrine’s death, Kesselman continued
living in the Burlingame Avenue
property. On the very day Corrine died,
someone signed a $170,0000 check drawn on an account in her name and
Kesselman’s name, payable to Kesselman.
Within one week of Corrine’s death, there were wire transfers of more
than $100,000 to Kesselman out of another bank account.
The Litigation
On October 1, 2010, plaintiffs and
appellants Elan Shukartsi and Dove Shukartsi Mayo, individually and as
successor trustees of the Shukartsi Living Trust,
filed a civil action against Kesselman.
The original complaint alleged a cause of action for “common counts†and
for “an order to inspect†trust property, namely, the property on Burlingame
Avenue and various bank and other financial
accounts. The gist of the action rested
on allegations that Kesselman had exercised undue influence over Corrine,
allowing him to obtain money and personal and real property that rightfully
belonged to Corrine and/or the Shukartsi Living Trust. The current appeal traces back to this
initial filing.
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1. The Operative First Amended Complaint
Plaintiffs
filed a first amended complaint (FAC), the operative pleading for purposes of
the anti-SLAPP motion at issue in the current appeal. The FAC expands on plaintiffs’ original
claims that Kesselman appropriated money and property that rightfully belonged
to Corrine and/or the Shukartsi Living Trust.
The FAC alleges the following causes of action, listed
respectively: elder financial abuse
(Welf. & Inst. Code, §§ 15610.27, 15610.30, 15657.3); dependent adult
financial abuse (§§ 15610.23, 15610.30, 15657.3); four causes of action
for conversion; and last, common counts.
The Anti-SLAPP Motion
Kesselman
filed an anti-SLAPP motion to strike the FAC.
The plaintiffs filed an opposition.
On June 14, 2011,
the trial court heard arguments and denied Kesselman’s motion. The court denied the motion on the ground
that plaintiffs’ claims did not arise from any “protected activity†on
Kesselman’s part. The trial court entered
a formal order denying Kesselman’s anti-SLAPP motion and denying plaintiffs’
request for attorney’s fees.
Kesselman
filed a timely notice of appeal from the order denying his anti-SLAPP
motion. Plaintiffs filed a timely notice
of cross-appeal from the denial of their request for attorney’s fees.
DISCUSSION
I. The Anti-SLAPP Statute
The
Legislature enacted the anti-SLAPP statute to address the disturbing societal
ills caused by meritless lawsuits filed to “chill†the exercise of the “
and petition for the redress of grievances.†(§ 425.16, subd. (a), italics added.) To this end, the statute authorizes a special
procedure for striking certain chilling and meritless causes of action at the
earlier stages of litigation.
The anti-SLAPP statute’s special
striking procedure entails two steps. In
the first step, the court’s task is to determine whether the moving defendant
has made a threshold showing that a challenged cause of action is one “arising
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States Constitution or California Constitution in
connection with a public issue . . . .†(§ 425.16, subd. (b)(1).)
“As used in [the
anti-SLAPP statute], ‘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 legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (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).)
If, and only if, the court
determines the moving defendant has made the required threshold showing that a
challenged cause of action “arises from protected activity†as described above,
it then falls to the court to move to the second step of the anti-SLAPP
statute’s special striking procedure, wherein the court’s task is to
determine whether the plaintiff has demonstrated a “probability†that he or she
will prevail on his or her claim.
(§ 425.16, subd. (b)(1); Equilon
Enterprises v. Consumers Cause, Inc. (2002) 29 Cal.4th 53, 67;
Bartlett LLP (2009) 179 Cal.App.4th 1204, 1218 (PrediWave); Santa Monica Rent
Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1317.)
An appellate court reviews an order
denying an anti-SLAPP motion under the de novo standard of review. (PrediWave,
supra, 179 Cal.App.4th at p. 1220.)
As a result, we will employ the same two-step procedure as did the trial
court in determining if the anti-SLAPP motion was properly denied.
II. Protected Activity
Kesselman
contends the trial court erred in denying his anti-SLAPP motion because,
contrary to the court’s determination, the FAC “arises from protected
activity.†According to Kesselman, the
FAC “is clearly a SLAPP suit because it attempts to chill the valid exercise of
protected speech, namely, the privileged and protected confidential [spousal]
communications between [him] and Corrine relating to their personal financial and
business affairs . . . .â€
He is wrong.
None of
plaintiffs’ causes of action against Kesselman arise from any
written or oral statement or writing made by Kesselman before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law (§ 425.16, subd. (e)(1));
any written or oral statement or
writing made by Kesselman in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law (§ 425.16, subd. (e)(2)); any
written or oral statement or writing made by Kesselman in a place open to the
public or a public forum in connection with an issue of public interest
(§ 425.16, subd. (e)(3)); or from any other
conduct on his part in furtherance of the exercise of his constitutional rights
of petition or of free speech in connection with a public issue or an issue of
public interest (§ 425.16, subd. (e)(4)).
Kesselman’s
argument that plaintiffs’ claims arise from statutorily
privileged spousal communications between Kesselman and Corrine is
irrelevant and bespeaks ignorance of the purpose of the anti-SLAPP
statute. The anti-SLAPP statute protects
constitutionally protected speech and
petitioning activity. Kesselman himself
admits in his opening brief on appeal that he has found no case supporting the
proposition that the anti-SLAPP statute may be invoked to strike claims arising
from statutorily privileged marital
communications (even assuming that were the nature of plaintiffs’ current case). All of the cases cited by Kesselman as
supportive of the principle that the anti-SLAPP statute may be invoked to
strike claims arising from marital communications are inapposite.
Kesselman’s
reliance on Haight Ashbury Free Clinics,
Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, is
misplaced. In that case, the plaintiff,
a nonprofit corporation, alleged claims against its founder for breach of
fiduciary duties. The breach alleged was
that the founder had conspired with attorneys to give false testimony in
depositions in ongoing litigation concerning the corporation’s interest in a
partnership. (Id. at pp. 1543, 1548.) The
Court of Appeal ruled that the anti-SLAPP statute applied to such claims
because the alleged conspiratorial statements “about how to testify in upcoming
depositions in a pending lawsuit†were “made in connection with an issue under consideration by a judicial body.†(Id.
at p. 1548, italics added.) Whether or
not the attorney-client privilege may have made it impossible to prove the
alleged conspiracy was an issue for the second step of the anti-SLAPP procedure
–– the probability that the plaintiff would prevail. But the first step of the anti-SLAPP
procedure was satisfied by the moving defendant because the defendant showed
the plaintiff’s claims arose within a litigation framework.
In
the current case, plaintiffs’ claims against Kesselman are not based on any act
or statement by Kesselman “in connection with an issue under consideration by a
judicial body.†To the extent that
plaintiffs’ claims attack a legal
document involving Kesselman, namely, the PMA between Kesselman and
Corrine, this does not mean the anti-SLAPP statute may be invoked. The PMA between Kesselman and Corrine was not
prepared in connection with litigation or any other type of official
proceeding. It was a private
contract. Claims concerning private
contracts unrelated to litigation or any other official proceeding do not fall
within the reach of the anti-SLAPP statute’s protections.
The
other cases upon which Kesselman relies are equally unavailing. Hurvitz
v. Hoefflin (2000) 84 Cal.App.4th 1232 is not an anti-SLAPP case. It has nothing to do with the issue here ––
namely, whether the particular nature of a plaintiff’s claim, e.g., a claim
arising from marital communications, is covered by the protective umbrella of
the anti-SLAPP statute. The issue in
order for sealing discovery amounted to an unconstitutional prior restraint on
free speech. (Id. at p. 1241.)
(1929) 99 Cal.App. 651 predates the anti-SLAPP statute by more than 50
years. McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th
378 is not an anti-SLAPP case. The issue
in McDermott –– presented in the context
of a motion for judgment on the pleadings –– was whether a shareholder could
state a cause of action for legal malpractice against a corporation’s outside
counsel in a derivative action when the corporation refuses a demand to
commence the action. (
v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 is not an anti-SLAPP
case. Rico dealt with the issue of disqualifying an opposing party’s
attorney.
In
sum, none of the cases cited by Kesselman support the proposition that the
anti-SLAPP statute may be invoked to strike a complaint arising from a
defendant’s act in furtherance of his or her statutorily privileged
speech. The anti-SLAPP statute is
available to strike a cause of action arising from a person’s act in furtherance
of his or her constitutionally protected rights of petition or free
speech.
III. Attorney’s Fees
Section
425.16, subdivision (c)(1), provides: “If the court finds that a special motion to
strike is frivolous or is solely intended to cause unnecessary delay, the court
shall award costs and reasonable attorney’s fees to a plaintiff prevailing on
the motion, pursuant to Section 128.5.â€
This language means what it says:
if a court determines an anti-SLAPP motion is frivolous or intended to
cause unnecessary delay, the imposition of sanctions becomes mandatory. (See, e.g., Moore v. Shaw (2004) 116 Cal.App.4th 182, 198-199.) The test is whether any reasonable attorney
would agree that the anti-SLAPP motion had merit. (Id.
at p. 200.) A trial court’s denial of a
request for attorney’s fees is reviewed for an abuse of discretion. (Ibid.)
Here, the
trial court expressly found that the anti-SLAPP motion was not well-taken
because the plaintiffs’ action arises out of private matters which were not
before any judicial body. There was no
factual or legal support for the motion.
Kesselman himself did not bother to submit a personal declaration in
support of his motion. We find no
reasonable attorney would agree that the motion had any merit. We find it was filed for no reason other than
to delay and increase plaintiffs’ costs of litigation. We therefore reverse the trial court’s
decision to deny attorney’s fees to plaintiffs.
For the same reasons, we find attorney’s fees are
recoverable on appeal. (
637-639 [to the extent attorney’s fees are recoverable at the trial court level
by statute, they are also recoverable on appeal]; Bach v. County of Butte (1989) 215 Cal.App.3d 294,
311-313 [accord].) Here, the cases
cited by Kesselman are, as we have noted,
appeal. No reasonable attorney
could have agreed the appeal had merit.
The trial court shall determine the reasonable amount of
attorney’s fees awarded to plaintiffs for the anti-SLAPP motion and the appeal.
DISPOSITION
The trial
court’s order denying Kesselman’s anti-SLAPP motion is affirmed. The trial court’s order denying
plaintiffs’ request for attorney’s fees incurred in defending against the anti-SLAPP
motion is reversed, and plaintiffs are awarded their costs on appeal, including
their attorney’s fees. (§ 425.16,
subd. (c).) Following remand, the trial
court shall determine the amount of reasonable attorney’s fees incurred in
defending against the anti-SLAPP motion both in the trial court and on
appeal.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
GRIMES,
J
statutory references are to the Code of Civil Procedure unless otherwise noted.
references to Kesselman include a defendant and appellant identified as the
Kesselman Foundation.
