Maki v. Yanny
Filed 9/18/12 Maki v. Yanny CA2/7
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
SEVEN
LISA MAKI,
Cross-complainant and Appellant,
v.
JOSEPH YANNY et al.,
Cross-defendants and Respondents.
B231712
(Los Angeles
County
Super. Ct.
No. BC404598)
APPEAL from
a judgment of the Superior Court
of Los Angeles
County, Malcolm Mackey, Judge.
Affirmed.
Law Offices
of Lisa L. Maki and Christina M. Coleman for Cross-complainant and Appellant
Lisa Maki.
California
Anti-SLAPP Project, Mark Goldowitz, Paul Clifford; Yanny & Smith and Joseph
Yanny for Cross-defendants and Respondents Joseph Yanny and Yanny & Smith,
P.C.
Emanuel Law
and Raphael B. Emanuel for Respondent Jon Peters.
__________________________
>
Lisa Maki appeals from the order granting the special
motion to strike and judgment of
dismissal entered in favor of Joseph Yanny, his law firm, Yanny & Smith,
P.C., and his client, Jon Peters, on Maki’s cross-complaint alleging Yanny and
Peters had wrongfully interfered with her existing client relationships and
defamed her. Maki also appeals from the
order awarding Yanny attorney fees in the amount of $54,208.28. We affirm.
factual and procedural background
1.
Maki’s Representation of Steve Burgin and Other
Former Peters Employees
In July 2006 Steve Burgin retained Maki on a
contingent fee basis to pursue various claims against Peters, a Hollywood
producer, arising from Burgin’s employment by Peters. In November 2006, before Maki had filed a complaint
on behalf of Burgin, Peters sued Burgin and his fiancée, Imelda Lara, for
breach of contract. Burgin and Lara
retained Maki on an hourly basis to defend the lawsuit. Maki obtained a full dismissal of the action
on August 14, 2007 and
collected $21,922.12 in costs from Peters.
After credit for the cost recovery, however, Burgin and Lara still owed
Maki $120,403.02 in attorney fees.
Meanwhile, Burgin had recommended Maki’s
services to other employees fired by Peters.
In July 2006 Maki entered into a contingent fee agreement with Andrew
and Adriana Silveira to prosecute their claims against Peters, and Bianca
Hernandez retained Maki in August 2006 to represent her in claims against him.
At some point in 2007 Burgin was asked by Yanny
to testify as a witness in an action against Ronald Grigg, a former officer and
general counsel for Peters Entertainment.
According to Yanny, he and Burgin became friends through this
association; and during the fall of 2007 Burgin assisted Yanny in investigating
the case. Yanny acknowledges he spoke
with Maki during this period about the multiple cases filed by former employees
against Peters. According to Maki, Yanny
suggested they combine forces and pay referral fees to Burgin for securing
additional plaintiffs. Maki refused. Concerned Yanny intended to steal her client,
Maki asked Burgin for assurances he had not entered into an agreement with
Yanny. Burgin assured Maki he had not
done so.
In late December 2007, however, Burgin told Maki
he had settled his claims against Peters and no longer needed her
services. According to Brian Quintana,
another former employee of Peters,[1] he had been instructed by
Yanny to contact Burgin and invite him to mediate his claims without the
participation of Maki, who was then Burgin’s counsel. Burgin met with Peters and Yanny. According to Quintana, Burgin was offered
$50,000 and reinstatement in his old job with Peters in return for releasing
his claims and encouraging other clients of Maki to terminate their actions
against Peters.[2] As Yanny admits, he met with Peters and
Burgin to mediate Burgin’s as-yet-unfiled claims and subsequently represented
Peters in numerous cases, including the Hernandez and Silveira matters. Yanny also later represented Peters in a
lawsuit filed by Quintana, who claimed he had consulted with Yanny about his
claims before Yanny, without Quintana’s consent, began representing
Peters.
Soon after Burgin settled his case, Maki filed a
complaint on behalf of Hernandez.
Hernandez, however, claimed she had not authorized the filing of the
lawsuit and terminated her relationship with Maki. She, too, ultimately settled with
Peters. The Silveiras, plaintiffs in two
actions against Peters, told Maki Burgin had contacted them on several
occasions urging them to drop their lawsuits against Peters. The Silveiras refused to terminate Maki or
dismiss their claims.
2.
The Instant Lawsuit
On December 24, 2008 Burgin and Lara sued Maki
for breach of fiduciary duty, malpractice and several other claims. On September 28, 2009 Maki filed a
cross-complaint for breach of contract and quantum meruit against Burgin and
Lara. She also sued Peters, Yanny and
Yanny & Smith as additional cross-defendants, alleging claims for
intentional and negligent interference with contract, intentional interference
with prospective economic advantage and defamation.
On December 1, 2009 Yanny and his law firm filed
a special motion to strike Maki’s cross-complaint against them under Code of
Civil Procedure section 425.16,[3] asserting all her claims
arose from statements made in the context of litigation or potential
litigation. Maki opposed the motion,
contending Yanny’s speech was not protected because no litigation was pending
in December 2007 when Yanny interfered with Maki’s relationships with her clients
and section 425.16 does not protect unethical or illegal conduct of the sort
engaged in by Yanny. In any event, Maki
argued, she had demonstrated a probability she would prevail on her claims.
The trial court granted the motion, finding
Maki’s claims arose from statements Yanny made in the course of potential
litigation; Maki had not demonstrated a probability she would prevail on her
claims; her claims were untimely; and they were barred by the litigation
privilege set forth in Civil Code section 47.
The court sustained multiple objections to the declarations submitted by
Maki in support of her claims, granted Peters’s motion for joinder in Yanny’s
motion and entered a judgment of dismissal in favor of Yanny, his law firm and
Peters. The court subsequently granted
Yanny’s motion for attorney fees and costs in the amount of $54,208.28.
discussion
1.
Section 425.16: The Anti-SLAPP Statute[4]
Section 425.16 provides, “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States or California Constitution
in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Under the
statute an “‘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: . . . (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
. . . .” (§ 425.16, subd. (e).)
In ruling on a
motion under section 425.16, the trial court engages 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.
The moving defendant’s burden is to demonstrate that the act or acts of
which the plaintiff complains were taken ‘in furtherance of the [defendant]’s
right of petition or free speech under the United States or California
Constitution in connection with a public issue,’ as defined in the
statute. (§ 425.16, subd. (b)(1).) 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. Under
section 425.16, subdivision (b)(2), the trial court in making these
determinations considers ‘the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)
In terms of the threshold
issue, the moving party’s burden is to show “the challenged cause of action
arises from protected activity.” (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056; City of Los Angeles v.
Animal Defense League (2006) 135 Cal.App.4th 606, 616, fn. 10.) “[T]he statutory phrase ‘cause of action . .
. arising from’ means simply that the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in furtherance
of the right of petition or free speech.
[Citation.] In the anti-SLAPP context, the critical point
is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech. [Citations.]
‘A defendant meets this burden by demonstrating that the act underlying
the plaintiff’s cause [of action] fits one of the categories spelled out in
section 425.16, subdivision (e). . . .’” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78.) “If the defendant does
not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” (Hylton v. Frank Rogozienski, Inc.
(2009) 177 Cal.App.4th 1264, 1271.)
If the defendant establishes the statute
applies, the burden shifts to the plaintiff to demonstrate a “probability” of
prevailing on the claim. (Equilon
Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) In deciding the question of potential merit,
the trial court properly considers the pleadings and evidentiary submissions of
both the plaintiff and the defendant, but may not weigh the credibility or
comparative strength of any competing evidence.
(Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The question is whether the plaintiff presented
evidence in opposition to the defendant’s motion that, if believed by the trier
of fact, is sufficient to support a judgment in the plaintiff’s favor. (Zamos v. Stroud (2004) 32 Cal.4th
958, 965.) Nonetheless, the court should
grant the motion “‘if, as a matter of law, the defendant’s evidence supporting
the motion defeats the plaintiff’s attempt to establish evidentiary support for
the claim.’” (Taus, at p. 714; Wilson,
at p. 821; Zamos, at p. 965.)
We review the trial court’s rulings independently
under a de novo standard of review. (Flatley
v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley);
accord, Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
2.
Yanny’s Statements and Conduct Fall Within the
Scope of Section 425.16,
Subdivision (e)(2)
As a general rule, a cause of action arising out
of the defendant’s “litigation activity” directly implicates the right to
petition and is subject to a special motion to strike. (See Navellier v. Sletten (2002) 29
Cal.4th 82, 89-90 [action for breach of release clause in contract subject to
special motion to strike because alleged breach consisted of filing action
purportedly released under the contract]; Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 741 [malicious prosecution action by its very nature arises
out of defendant’s constitutionally protected petitioning activity (the
underlying lawsuit)].) Prelitigation
communications are covered as well, if litigation is “‘contemplated in good
faith and under serious consideration.’”
(A.F. Brown Electrical Contractor,
Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128;
fn. 11 [prelitigation communications protected by § 425.16].) Counseling clients and other activities in
anticipation of, or preparation for, litigation are also within the ambit of
section 425.16. (Briggs v. Eden
Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1115 [“‘[j]ust as communications preparatory to or in
anticipation of the bringing of an action or other official proceeding are
within the protection of the litigation privilege of Civil Code section 47,
subdivision (b) [citation], . . . such statements are equally
entitled to the benefits of section 425.16’”].)
Maki argues Yanny’s actions did not arise from
litigation activity because, at the time of the alleged misconduct, there was
no potential litigation sufficient to invoke the protection of the anti-SLAPP
statute. This contention is belied by
the allegations of Maki’s complaint:
“While the Peters Lawsuit was pending, Maki also worked on Burgin’s
claims against Peters . . . ; filed the requisite complaints with the
Department of Fair Employment and Housing, and obtained the Right to Sue
letters. Maki also continued investigating
Burgin’s claims, interviewing witnesses and gathering documents necessary to
effectively prosecute the case. [¶] . . . At Burgin’s request,
Maki held off filing Burgin’s lawsuit . . . .”
Further, according to Maki, “Yanny initiated communications with Burgin
specifically relating to the subject representation, and attempted to persuade
Burgin to hire Yanny, instead, to pursue those claims against
Peters. . . . [¶] . . . Yanny contacted Maki
directly and proposed a ‘joint venture’ . . . [to] represent Burgin
and a number of other employees seeking to make claims against Peters, and to
kick-back a portion of the fee to Burgin . . . . Maki declined and told Yanny that his
proposed kick-back scheme was illegal and violated the Rules of Professional
Conduct. . . . [¶] . . . Yanny then sought out Peters,
told Peters that Burgin and other employees intended to bring claims against
him, and apparently began representing Peters with respect to these anticipated
claims. [¶] . . . Despite knowing Burgin was
represented by counsel, and despite now representing Peters against whom Burgin
was bringing claims, Yanny initiated his communications directly with Burgin,
in disregard of Burgin’s attorney-client relationship with Maki, and in
violation of Rules of Professional Conduct, Rule 2-100.” Maki further alleges Burgin fired her as his
lawyer after settling his claims with Peters and that Yanny used threats and
coercion to force Maki to forgive Burgin and Lara’s debt to her and to
discourage other clients of Maki to continue litigating their claims against
Peters.
There is no merit, therefore, to Maki’s contention
Yanny’s statements were not made in the context of prospective litigation. Even so, “[n]ot all attorney conduct in
connection with litigation, or in the course of representing clients, is
protected by section 425.16.” (California
Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037;
see also Freeman v. Schack (2007) 154
Cal.App.4th 719, 729-730 [“‘[a]lthough a party’s litigation-related activities
constitute “act[s] in furtherance of a person’s right of petition or free
speech,” it does not follow that any claims associated with those activities
are subject to the anti-SLAPP
statute’”]; Paul v. Friedman (2002)
95 Cal.App.4th 853, 866 [“The statute does not accord anti-SLAPP protection to suits arising from any act having any
connection, however remote, with an official proceeding. The statements or writings in question must
occur in connection with ‘an issue under consideration or review’ in the
proceeding.”].) “[A] defendant in an
ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some
references to speech or petitioning activity by the defendant. [Citation.]
. . . [I]t is the principal thrust or gravamen
of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations
referring to arguably protected activity are only incidental to a cause of
action based essentially on nonprotected activity, collateral allusions to
protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc.
(2003) 113 Cal.App.4th 181, 188; see Episcopal
Church Cases (2009) 45 Cal.4th 467, 477-478.) “Accordingly, we focus on the specific nature
of the challenged protected conduct, rather than generalities that might be
abstracted from it.” (Dyer v.
Childress (2007) 147 Cal.App.4th 1273, 1279; see Hylton v. Frank E.
Rogozienski, Inc., supra,
177 Cal.App.4th at p. 1272 [“we assess the principal thrust by identifying
‘[t]he allegedly wrongful and injury-producing conduct . . . that
provides the foundation for the claim’”].)
Wrestling with this question in an action brought by
a law firm against an attorney for “stealing” the firm’s client, Division Eight
of this court concluded the alleged interference arose from protected
activity. (See Taheri Law Group v.
Evans (2008) 160 Cal.App.4th 482 (Taheri).) The plaintiff law firm argued the defendant
had induced the client to terminate his relationship with the firm by
unethically and improperly promising the client that he, Evans, would be able
to enforce a settlement agreement on behalf of the client. (Id. at pp. 485-486.) The firm had previously advised the client
the settlement agreement was unenforceable because it had been repudiated. (Id. at p. 486.) The court rejected the firm’s argument the
gravamen of its complaint was “client stealing” and concluded its claims arose
“directly from communications” between the client and Evans “about the pending
lawsuits against [the client].” (Id.
at p. 489.) The fact the law firm was
still engaged as the client’s counsel was irrelevant to whether Evans’s
statements fell within the scope of section 425.16, subdivision (e)(2). (Ibid.) The court explained, “[I]t is difficult to
conjure a clearer scenario than the case before us of a lawsuit arising from
protected activity.” (Ibid.; see also GeneThera,
Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908
[attorney’s communication of settlement offer—even if made for improper
purpose—“directly implicates the right to petition and thus is subject to a
special motion to strike”].) In short,
proposition that a second lawyer’s advice to a client, even when that client is
already represented by another attorney concerning pending or prospective
litigation, is protected activity subject to a special motion to strike under
section 425.16.
Maki’s attempt to distinguish Taheri because the gravamen of her cross-complaint is not directed
to Yanny’s attempt to steal Burgin as a client, but instead to his use of
Burgin to intimidate and threaten Maki’s other clients is unpersuasive. Parsing the allegations of the complaint, we
see little that supports Maki’s claim of interference that does not flow from
Yanny’s offer to mediate Burgin’s claims against Peters and statements he made
to Burgin during the course of that mediation.[5] Whether Yanny, Burgin or Peters initiated the
mediation is a disputed question, as is the timing of Peters’s retention of
Yanny as his lawyer and Yanny (or Peters’s) alleged use of Burgin to discourage
Maki’s other clients from pursuing their claims. Evidently, as a result of the mediation,
Burgin concluded his interests had not been adequately protected by Maki and
her legal strategy. Whether that
conclusion was justified is irrelevant.
Under the circumstances of this case, and “because
of the fundamental
right of a client to choose
and change his
legal representation” (
court correctly determined Yanny had made the required threshold showing his
alleged conduct falls within the scope of section 425.16.
3.
No Exceptions to the Anti-SLAPP Statute Apply
a. The
illegal acts exception
Section 425.16 is concerned with lawsuits that
“chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.” (§ 425.16, subd. (a), italics
added.) In Flatley,
supra, 39 Cal.4th at page 320,
the Supreme Court held, when the speech or petition activity upon which a
defendant relies to support his or her section 425.16 special motion to strike
“is conceded or shown to be
illegal as a matter of law, such speech or petition activity will not support
the special motion to strike.” Maki contends this limitation applies to the case at bar
because Yanny’s conduct violated several provisions of the Code of Professional
Responsibility, as well as Business and Professions Code section 6128, which
provides: “Every attorney is guilty of a
misdemeanor who either: [¶] (a) is guilty of any deceit or collusion, or
consents to any deceit or collusion, with intent to deceive the court or any party . . . .”
Many of the details of Yanny’s activities are
disputed, and his statements and conduct giving rise to Maki’s claims are not
“illegal as a matter of law.” (
320; accord, Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 965 [factually disputed allegation of attorney fraud under
Bus. & Prof. Code, § 6128 insufficient to meet Flatley standard of illegality].)
In Flatley the plaintiff, a well-known
entertainer, filed an action against an attorney, alleging causes of action for
civil extortion, intentional infliction of emotional distress and wrongful
interference with economic advantage.
The plaintiff’s causes of action were based on a letter from the lawyer
threatening to make public a rape allegation unless the plaintiff paid a
“‘settlement of $100,000,000.00.’” (Id. at pp. 305-308.) The Supreme Court concluded the letter and
related telephone calls constituted criminal extortion as a matter of law and
held, where “the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was illegal as a
matter of law,” the challenged activity will not support a special motion to
strike. (Id. at
p. 320.) However, the Court
cautioned, “If . . . a factual dispute exists about the legitimacy of
the defendant’s conduct, it cannot be resolved within the first step but must
be raised by the plaintiff in connection with the plaintiff’s burden to show a
probability of prevailing on the merits.”
(Flatley, at p. 316; see also Gerbosi v. Gaims, Weil, West
& Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand Flatley
to stand for this proposition: when a
defendant’s assertedly protected activity may or may not be criminal
activity, the defendant may invoke the anti-SLAPP statute unless the activity
is criminal as a matter of law”]; Mendoza
v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th
1644, 1654 [Flatley’s term “‘illegal’ was intended to mean criminal, and
not merely violative of a statute”].) Such
a factual dispute plainly exists here.
b. The
commercial speech exception
Pursuant to section 425.17, a cause of action
arising from commercial speech is not subject to a special motion to strike
when “(1) the cause of action is against a person primarily engaged in the
business of selling or leasing goods or services; (2) the cause of action
arises from a statement or conduct by that person consisting of representations
of fact about the person’s or a business competitor’s business operations,
goods, or services; (3) the statement or conduct was made either for the
purpose of obtaining approval for, promoting, or securing sales or leases of,
or commercial transactions in, the person’s goods or services or in the course
of delivering the person’s goods or services; (4) the intended audience for the
statement or conduct meets the definitions set forth in section 425.17[,
subdivision] (c)(2) [a customer or potential customer or one likely to repeat
the statement to or otherwise influence a customer or potential
customer].” (Simpson Strong-Tie Co.,
Inc. v. Gore (2010) 49
Cal.4th 12, 30.)
In Taheri, supra,
160 Cal.App.4th 482, the plaintiff law firm, like Maki here, argued its “client
stealing” claim was not subject to an anti-SLAPP motion under this commercial
speech exception. Acknowledging the
possibility lawyers might in some circumstances be able to invoke this
exception, the Taheri court
concluded, “[A] cause of action arising from a lawyer’s conduct, when the
conduct includes advice to a prospective client on pending litigation, does not
fall within the statutory exemption to the anti-SLAPP
statute. Any other conclusion would be
inconsistent with the intent of the Legislature when it passed section 425.17,
and would conflict with the client’s fundamental right of access to the courts,
which necessarily includes the right to be represented by the attorney of his
or her choice.” (Taheri,
at p. 490.) The court found the
conduct complained of was much more than “commercial speech” because it “was in
essence advice by a lawyer on a pending legal matter.” (Id. at p. 491.) Construing the exemption to apply to actions
arising from advice given by a lawyer on a pending legal matter would “serve to
thwart the client’s fundamental right . . . to the lawyer of his choice.” (Ibid.; see also Mendoza v. ADP Screening and Selection Services, Inc., supra, 182 Cal.App.4th
at p. 1652 [Legislature apparently enacted § 425.17, subd. (c), for
“purpose of exempting from the reach of the anti-SLAPP statute cases involving
comparative advertising by businesses”].)
The communications alleged here were intended to
coerce settlement or abandonment of lawsuits filed by various ex-employees of
Peters. These statements were not
commercial speech within the meaning of section 425.17.
4.
Maki Has Failed To Establish a Probability of
Prevailing on Her Claims
Because the trial court properly ruled Maki’s
claims fall within the scope of section 425.16, subdivision (e)(2), the burden
shifted to Maki to show she had a reasonable possibility of prevailing on those causes of action. (Gerbosi v. Gaims, Weil, West &
Epstein, LLP, supra, 193
Cal.App.4th at p. 447; see Hailstone v. Martinez (2008)
169 Cal.App.4th 728, 736 [“[t]he plaintiff need only establish that his or
her claim has minimal merit to avoid being stricken as a SLAPP”].) Like the trial court, we conclude she does
not have a reasonable possibility of prevailing because Yanny’s allegedly
actionable statements to Burgin related to settlement of his claims against
Peters, as well as those of other former employees of Peters, and were
privileged under Civil Code section 47, subdivision (b).[6]
“The usual
formulation [of the litigation] privilege [is that] the privilege applies to
any communication (1) made in judicial or quasi-judicial proceedings; (2) by
litigants or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that have some connection or logical relation
to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212; see
Cal.App.4th 521, 529 [litigation privilege bars cause of action “provided that
there is some reasonable connection between the act claimed to be privileged
and the legitimate objects of the lawsuit in which that act took place”].) “The litigation privilege is absolute; it
applies, if at all, regardless whether the communication was made with malice
or the intent to harm. [Citation.] . . . [T]he privilege has been extended to .
. . all torts other than malicious
prosecution. [Citations.] . . . [¶] If
there is no dispute as to the operative facts, the applicability of the
litigation privilege is a question of law.
[Citation.] Any doubt about
whether the privilege applies is resolved in favor of applying it.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)
Application of the privilege is not limited to statements made in a
courtroom: “Many cases have explained
that [Civil Code] section 47[, subdivision (b),]
encompasses not only testimony in court and statements made in pleadings, but
also statements made prior to the filing of a lawsuit, whether in preparation
for anticipated litigation or to
investigate the feasibility of filing a lawsuit.” (Hagberg v. California Federal Bank
(2004) 32 Cal.4th 350, 361; see Briggs v.
Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115
[“communications preparatory to or in anticipation of the bringing of an action
. . . are within the litigation privilege”].)
Maki contends Yanny’s statements to Burgin were
not made in furtherance of any litigation and thus were not privileged.[7] (See Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 [to be protected by litigation privilege,
statements must “function as a necessary or useful step in the
litigation process and must serve its purposes”].) Discussing this factor in
pages 219 to 220, the Supreme Court explained “[t]he requirement that the
communication be in furtherance of the objects of the litigation is, in
essence, simply part of the requirement that the communication be connected
with, or have some logical relation to, the action, i.e., that it not be
extraneous to the action. A good example
of an application of the principle is found in the cases holding that a
statement made in a judicial proceeding is not privileged
unless it has some reasonable relevancy to the subject matter of the
action. [Citations.] The ‘furtherance’ requirement was never
intended as a test of a participant’s motives, morals, ethics or intent.” (See
also Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865 [for litigation
privilege to apply “defamatory matter need not be relevant, pertinent or
material to any issue before the tribunal; it need only have some connection
or some relation to the judicial proceeding”]; Jacob B. v. County of
Shasta (2007) 40 Cal.4th 948, 959 [a communication need not itself be
“accurate” or “truthful” for privilege to attach but simply within “category of
communication permitted by law”].)
The
statements Yanny is alleged to have made—both in the course of the meeting with
Burgin and Peters that resulted in the settlement of Burgin’s potential claims
and later in directing Burgin to urge other clients of Maki to resolve or
dismiss their actions against Peters—unquestionably relate to anticipated or
actual litigation. Accordingly, the
privilege attaches to all such communications, even if made in a context that
might give rise to an ethics violation.
No matter what motivated these statements, they are all privileged; and
Maki cannot demonstrate a reasonable possibility of prevailing were the instant
litigation to proceed.
5. The Special Motion To Strike Was Not Improperly
Scheduled, and the Trial Court Did Not Abuse Its Discretion in Granting
Peters’s Request for Joinder
Relying on
the decisions in Greka Integrated, Inc.
v. Lowrey (2005) 133 Cal.App.4th 1572, 1577-1578 and Decker v.
U.D. Registry Inc. (2003) 105 Cal.App.4th 1382, 1389 (
lacked jurisdiction to grant the special motion to strike because it was heard
more than 30 days after it was served.
These courts, however, relied on a previous version of section 425.16,
subdivision (f), which then provided a special motion to strike “shall be
noticed for hearing not more
than 30 days after service unless the docket conditions of the court
require a later hearing.” The
Legislature abrogated this rule by amending section 425.16, subdivision (f), on
October 5, 2005, as an urgency statute effective immediately on that
date. (Stats. 2005, ch. 535,
§§ 1, 4.) Section 425.16,
subdivision (f), as amended, now requires the court clerk to schedule a special
motion to strike for a hearing no more than 30 days after the motion is
served if such a hearing date is available on the court’s docket, but does not
require the moving party to ensure that the hearing is so scheduled and does
not justify the denial of a special motion to strike solely because the motion
was not scheduled for a hearing within 30 days after the motion was
served. (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337,
1349-1350; Chitsazzadeh v. Kramer &
Kaslow (2011)
199 Cal.App.4th 676, 685.) The
Legislature amended subdivision (f) specifically to overrule Decker and a similar holding in Fair Political
Practices Commission v. American Civil Rights Coalition, Inc. (2004) 121
Cal.App.4th 1171, 1174-1178.
(Stats. 2005, ch. 535, § 3.) The
record is clear the delay in scheduling the motion in this case was a matter of
the court’s discretion and was not improper.
Maki also
challenges the court’s exercise of its discretion in granting Peters’s request
for joinder in Yanny’s special motion
to strike, again relying on Decker,
supra, 105 Cal.App.4th 1382. In
a party who had been allowed to join a special motion to strike on the ground
the party seeking joinder had made no request for relief on his own behalf and
lacked standing to maintain an appeal from the order denying the special motion
to strike. (See id. at pp. 1390-1391.)
Decker, however, is not relevant
here because the court granted the special motion to strike and Peters, as a
respondent, has standing to defend the trial court’s orders before this
court. Allowing joinder in this case was
not an abuse of discretion because Peters’s interests were completely aligned
with Yanny’s, both factually and legally, and there was no need for Peters to
present affirmative evidence on his own behalf.
(See Barak v. Quisenberry Law Firm
(2006) 135 Cal.App.4th 654, 661.)
Even though Peters’s joinder was filed late, Maki suffered no prejudice,
having had ample opportunity to rebut the evidence presented by Yanny.
6.
The Trial Court Properly Awarded Attorney Fees
to Yanny
Section 425.16, subdivision (c), provides, “In
any action subject to subdivision (b), a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney’s fees and
costs. . . .” The award of attorney fees
to the party bringing a successful special motion to strike under section
425.16 is “mandatory.” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1131.)
An order granting an award of attorney
fees is generally reviewed for an abuse of discretion. (See MHC
Financing Ltd. Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1397.) In particular, “[w]ith respect to the amount
of fees awarded, there is no question our review must be highly deferential to
the views of the trial court.” (Children’s
Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777; see
also PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095
[recognizing trial court’s broad discretion in
determining amount of reasonable attorney fees because experienced trial judge is in the best position
to decide value of professional services rendered in court].) An appellate court will interfere with a
determination of “what constitutes the actual and reasonable attorney
fees” “only where there has been a manifest abuse of discretion.” (Fed-Mart
Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228.)
Maki argues fees should not have been awarded
because she offered to dismiss the claims against Yanny within two days of
filing the cross-complaint. She claims
Yanny did not respond to the offer and instead proceeded to file his anti-SLAPP
motion. Yanny responds on appeal that
Maki offered merely to dismiss the claims without prejudice and with a tolling
agreement, contending it was reasonable for him to reject Maki’s limited
proposal.
The trial court considered this argument and
rejected it. The court also considered
and likewise rejected Maki’s contention fees and costs incurred between the
filing of the anti-SLAPP motion and the court’s ruling could not be
recovered. The court’s ruling on Yanny’s
fee motion was well within its discretion, and we will not disturb it. (See Liu
v. Moore (1999) 69 Cal.App.4th 745, 752-753.)
disposition
The judgment is affirmed. Respondents are to recover their costs on
appeal.
PERLUSS,
P. J.
We concur:
WOODS,
J.
JACKSON,
J.
[1]
The trial court sustained
Yanny’s objections to Quintana’s declaration.
We include his statements for context; they do not alter the outcome of
the appeal.
[2]
In an email sent on January 5,
2008 after he had terminated his relationship with Maki, Burgin blamed Maki for
billing him $150,000 and encouraging him to litigate against Peters, his
“brother.” Burgin also stated, “Joe
Yanny has offered you the opportunity to do what is decent and righteous. I strongly recommend you contact [him] as he
had requested, because if you do not I fear you will lose everything, for
though he is a decent man, he is not one to be trifled with. FRANKLY I THINK HIS PATIENCE IS RUNNING
THIN. IT IS MY HOPE YOU WILL CONTACT HIM
BEFORE IT IS TOO LATE.” Maki understood
this email to be a threat.
