Rosen v. Singh
Filed 2/27/12 Rosen v. Singh
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
ROBIN ROSEN,
Plaintiff and Appellant,
v.
JAI SINGH et al.,
Defendants and
Respondents.
B230067
(Los Angeles County Super. Ct.
No. BC441076)
APPEAL from
a judgment of the Superior Court of
County, Luis A. Lavin, Judge.
Affirmed.
Law Offices
of Glenn M. Rosen and Glenn M. Rosen for Plaintiff and Appellant.
W. Ruel
Walker for Defendant and Respondent Jai Singh.
Reback,
McAndrews, Kjar, Warford & Stockalper, Robert C. Reback, Cindy A. Shapiro
and Thien T. Nguyen for Defendant and Respondent Franklin Moser.
_______________________________
In a prior litigation, plaintiff and appellant Robin
Rosen filed a personal injury action
against the Los Angeles Metropolitan Transit Authority (MTA) and its bus
driver, claiming she suffered a debilitating stroke a month after the MTA bus
rear-ended the school bus in which she was traveling.
medical witnesses—defendants and respondents in the instant action, Jai Singh
and Franklin Moser, M.D.—to help prove liability and damages. The MTA and bus driver, however, prevailed
when the jury specially found they were not negligent in the underlying
accident. In the instant action,
plaintiff sued experts Singh and Dr. Moser, alleging they conspired with the
MTA’s counsel in the personal injury action to sabotage her case by giving
their fiduciary and contractual obligations to plaintiff.
Singh and
Dr. Moser brought anti-SLAPP
name="_ftnref2" title="">[2] motions under Code of Civil Procedure
section 425.16 to dismiss the action on the ground that all the claims
against them were premised on their testimony in the personal injury action,
which was an exercise of constitutional rights
of petition and free speech. The
trial court granted the motions, finding plaintiff’s causes of action arose out
of protected speech and plaintiff failed to carry her burden of showing a
probability of prevailing on the merits of her claims.
trial court erred in granting the anti-SLAPP motion. We affirm.
The Complaint
Plaintiff’s
instant lawsuit named Singh and Dr. Moser as defendants in the complaint’s 10
causes of action, all of which were predicated on their promises “to use their
good faith to testify in favor of [plaintiff] and to act as her experts” in her
personal injury action against the MTA and its bus driver, entitled
Metropolitan Transportation Authority and Wendel Rush, No. BC360683 (the
“personal injury action”
. That actionarose out of an accident in October 2004, when an MTA bus driven by Wendel Rush
allegedly rear-ended the school bus in which plaintiff was seated as a
passenger. The school bus had no head
restraints and the accident caused a dissection of plaintiff’s left internal
carotid artery, resulting in a stroke, impaired speech and balance, and partial
paralysis. Her medical bills amounted to
$400,000, and her care and treatment would amount to $7 million over the course
of her life.
Plaintiff
hired experts Singh and Dr. Moser, based on their representations that there
was no conflict of interest between either one and the MTA. According to plaintiff, defendants agreed her
injuries were caused by the accident with the MTA bus. However, at some point, they secretly entered
into a conspiracy with legal counsel for the MTA, Katherine Pene, to “act
against [plaintiff] to make sure that [she] would lose her case.” Defendants were motivated by “their own
pecuniary benefit to obtain more cases” from the MTA and Attorney Pene.
Every cause
of action incorporated those allegations by reference as the factual basis for
each claim. The first cause of action
for breach of fiduciary duty alleged that defendants promised and assured
plaintiff “they would testify in her behalf, work on her behalf and make sure
that her case was presented properly by them in a professional manner,” but
they breached their fiduciary duty by knowingly, willfully, and maliciously
failing to do so. The second cause of
action for breach of contract alleged defendants had a contract with plaintiff
to “act on her behalf, testify on her behalf and do everything to improve her
case and not to act in their own best interests” against plaintiff’s
interests. They breached those contracts
by working in favor of the MTA.
The third
claim alleged defendants breached the covenant of good faith and fair dealing
by entering into a conspiracy with Attorney Pene to ensure plaintiff would lose
her personal injury lawsuit. Defendants
“knew they were violating this covenant” and were acting against plaintiff’s
interests in “making sure there would be no offer of settlement . . .
and that the case would have to go to [t]rial wherein they would testify
against” plaintiff to prevent her from prevailing. The fourth claim alleged “deceit” under Civil
Code sections 1709 and 1710, based on the same conduct set forth in the prior
allegations.
The fourth
claim, civil conspiracy, alleged that in approximately August or September
2008, defendants “conspired and agreed to implement a scheme to victimize”
plaintiff by “testifying against her for the benefit of” Attorney Pene and the
MTA. In the fifth claim, plaintiff
alleged defendants committed fraud by “intentionally misrepresenting that they
were acting in good faith for” plaintiff’s interests “when they were in fact
acting against her to her detriment.”
The seventh claim, denominated “fraud by concealment,” generally alleged
defendants concealed material facts by acting in concert with Attorney Pene to
prevent plaintiff from prevailing at trial or from receiving a fair settlement
offer. The eighth claim alleged
negligent misrepresentation on the ground that defendants “knowingly and
willfully induced [plaintiff] to believe they were acting in good faith and representing
her interests when in fact they were acting against her.”
In the
ninth cause of action, plaintiff alleged defendants should be estopped from
relying on any statutes of limitations to bar her claims. In the tenth cause of action, plaintiff alleged
the conduct in the prior causes of action amounted to negligence by defendants.
The Anti-SLAPP Motions
Dr. Moser’s anti-SLAPP motion was supported by
declarations from Attorney Pene and Dr. Moser himself. Dr. Moser is a board certified radiologist. Prior to October 2008, vascular surgeon Dr.
David Cossman asked Dr. Moser to review “some films” of plaintiff to “determine
whether she had suffered a carotid dissection as a result of a bus accident.” Plaintiff’s attorney, Glenn Rosen, visited
Dr. Moser’s office and told him plaintiff “had suffered a cerebral incident
some time after being involved in a motor vehicle accident involving” the MTA,
and he had filed a lawsuit on her behalf.
Attorney Rosen provided Dr. Moser with MRI and MRA images taken of
plaintiff after she suffered a cerebral infarction (stroke) some weeks after
the bus accident. Dr. Moser discussed
his interpretation of the scans with plaintiff’s attorney.
According
to Dr. Moser, the scans confirmed plaintiff’s infarction. Additionally, “the scans were suspicious, but
not diagnostic[,] of a dissection of the left carotid artery.” Dr. Moser opined that he could not make a
determination that the infarction was caused by a carotid dissection without
additional studies, such as an angiogram.
Attorney Rosen said no such studies had been done and never provided Dr.
Moser with any additional medical test results or records concerning plaintiff,
nor did he provide Dr. Moser with any documents concerning the bus accident or
any deposition transcripts from the litigation.
Dr. Moser did not tell Attorney Rosen he would testify that plaintiff’s
injuries resulted from the bus accident, based on his review of the scans he
had reviewed. Rather, he told the
attorney that he would testify truthfully based on his review of those scans.
At his
deposition on October 20, 2004, Dr. Moser testified truthfully, consistent with
his prior representations to plaintiff’s attorney, that the scans showed
evidence of a cerebral infarction, “but that the scans . . . were not
diagnostic for a dissection leading to infarct[ion].” The expert further testified that he was told
no angiogram had been done on plaintiff.
When questioned by Attorney Rosen, Dr. Moser testified that trauma could
cause an artery dissection, but he would defer to plaintiff’s “treating
physicians as to whether the bus accident caused her subsequent
infarction.” He was not called to
testify at plaintiff’s trial. Dr. Moser
never discussed plaintiff’s case with Attorney Pene, except to the extent he
answered Attorney Pene’s deposition questions in her capacity as counsel for
the MTA. Dr. Moser never agreed to
“testify in any way other than truthfully.”
Attorney
Pene declared that she and her law firm represented the MTA and Rush in plaintiff’s
personal injury action. Rush and the MTA
denied that the MTA bus struck the school bus in which plaintiff was a
passenger at the time of the October 22, 2004 accident. The investigating officer from the California
Highway Patrol supported that conclusion and he testified to that effect at
trial. Medical records showed plaintiff
first received medical treatment on November 3, 2004, but “only for neck and
back soft tissue injuries.” Sixteen days
later, plaintiff suffered a stroke and was hospitalized. “A carotid duplex ultrasound . . . was
reported to reveal a distal left internal carotid artery clot as the cause of
her stroke.”
An
angiogram was conducted on November 23, 2004, at plaintiff’s request on behalf
of her treating health care providers.
The hospital and physician were selected by plaintiff—not by Attorney
Pene, her firm, or her clients. The
report by radiologist Kurt Openshaw, M.D., “did not identify a carotid artery
dissection, and his subsequent deposition and trial testimony . . . confirmed
that the angiogram ruled out a carotid artery dissection.” When deposed on September 23, 2008, more than
six weeks before trial, Dr. Openshaw testified that “the angiogram did not
reveal any basis for the claim that the subsequent stroke was caused by the bus
accident.” Dr. Openshaw’s deposition was
two weeks before the deposition of plaintiff’s medical expert, Dr. David
Cossman, and four weeks before Dr. Moser’s deposition.
Attorney
Pene does not know why plaintiff’s counsel did not provide the angiogram films
to Drs. Moser and Cossman. Her firm had
obtained them as part of the medical records subpoenaed during the course of
the lawsuit; plaintiff’s counsel was provided with timely notice of the subpoenas. Plaintiff’s counsel did not request the
medical records from Attorney Pene, and she did nothing to prevent counsel from
obtaining them. Nor does Attorney Pene
know why plaintiff’s counsel did not provide the medical experts with the
videotape of Dr. Openshaw’s deposition.
Neither Attorney Pene nor any member of her firm took any steps to
prevent plaintiff or her counsel from obtaining the medical records or
deposition videotape.
The
personal injury action began in November 2008.
On December 9, 2008, the jury rendered a special verdict in favor of the
defense, finding neither defendant was negligent. As a result of that verdict, judgment was
entered for the defense with the jury not having to reach the questions of
causation and damages.
Singh’s
anti-SLAPP motion was supported by his declaration, in which he stated that he
is a biomechanical engineer. Plaintiff’s
attorney retained him as an expert witness in the personal injury
litigation. In that capacity, Singh
inspected the MTA bus, reviewed documents, prepared reports, and testified in a
deposition and at trial. He “gave
testimony favorable to plaintiff in an effort to establish that plaintiff
indeed sustained serious injuries as a result of the collision.” All of his efforts were intended to benefit
plaintiff. He never conspired with
anyone to act against plaintiff’s interests.
Plaintiff’s
Opposition
In
opposition to Dr. Moser’s motion, plaintiff argued the actionable conduct on
which the complaint was based was not the expert’s testimony, but rather his
conflict of interest, which existed at the time he was retained and first
examined plaintiff’s scans. As part of
the conspiracy against plaintiff, Attorney Pene convinced Dr. Openshaw to “take
the films so that they could not be used and [she talked] Dr. Openshaw into
lying about what the films said and how they were used. . . . The conspiracy was expanded with [Attorney]
Pene convincing Singh to testify against plaintiff without informing plaintiff
of the conflict of interest with the MTA and [Attorney] Pene. Singh did this after his inspection of the
school bus and before inspecting the MTA bus.”
No evidence, however, was presented to support those assertions.
In essence,
plaintiff argued Dr. Moser’s testimony was incidental to the wrongful conduct
alleged in the complaint. The wrongful
conduct as to each cause of action, plaintiff asserted, was Dr. Moser’s false
representation that he had no conflict of interest with Attorney Pene or the
MTA at the time he agreed to become plaintiff’s expert. “We are not saying that he breached his duty
by testifying and by what he said.”
The
anti-SLAPP opposition was supported by the declaration of Hope Ashley Rosen,
Attorney Rosen’s daughter.
name="_ftnref4" title="">[4] She was present when Attorney Rosen retained
Dr. Moser as an expert in the personal injury action. Attorney Rosen told the doctor who defendants
were and identified Attorney Pene and her firm as defense counsel. Dr. Moser said he had no conflict of
interest and could serve as plaintiff’s expert.
The doctor examined the MRA scan presented to him by Attorney
Rosen. Dr. Moser said, “There it is,
there is the dissection of the carotid artery.”
When told about the reports of the bus accident, the doctor said that “it
was not unusual for a dissection of the left internal carotid artery to take
place as a result of the trauma and that is evidently what happened to Robin
Rosen.”
With regard
to Singh’s motion, plaintiff argued Singh’s misconduct consisted of: (1)
failing to have a PowerPoint presentation as an aid to testifying,
despite Singh’s representation that he had prepared one; (2) not permitting Attorney Rosen to participate
in the inspection of the MTA bus; (3)
failing to properly inspect the MTA bus with its bike rack in the
lowered position; and (4) granting
Attorney Pene the authority to “sell off” the MTA bus after the inspection was
completed.
evidentiary support for those assertions.
Plaintiff argued that Singh’s actionable conduct “had nothing to do with
any protected activity,” but rather consisted in his failure to give truthful
testimony and information to plaintiff.
The Trial Court’s
Ruling
The trial
court found that the gravamen of the claims against defendants was their
testimony in deposition or at trial.
Accordingly, defendants had satisfied their initial burden under section
425.16 of showing the claims arose out of protected speech. “[T]he gravamen of this lawsuit is [that
plaintiff is] seeking to punish these [d]efendants for either how they
testified at a deposition or what they may or may not have said in court.” As to the second aspect of the anti-SLAPP
test, the court found plaintiff failed to satisfy her burden of showing a
probability of prevailing on her claims because the factual allegations
contained in plaintiff’s opposition brief were not supported by any
evidence. Because plaintiff had failed
to present any evidence to show a probability of prevailing on the merits, the
court granted the motions as to defendants.
DISCUSSION
The Anti-SLAPP
Statute
Plaintiff
contends the trial court erred in granting defendants’ motions to dismiss under
section 426.16. The governing law is
well established. “‘In evaluating an
anti-SLAPP motion, the trial court first determines whether the defendant has
made a threshold showing that the challenged cause of action arises from
protected activity. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [(
section 425.16 “[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 . .
. shall be subject to a special motion to strike. . . .” ([Id.,] subd. (b)(1).)’ (Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1056 [(Rusheen)].) ‘If the court finds the defendant has made
the threshold showing, it determines then whether the plaintiff has
demonstrated a probability of prevailing on the claim. (Equilon Enterprises . . . , supra, 29 Cal.4th at
p. 67.) “In order to establish a
probability of prevailing on the claim (. . . § 425.16, subd. (b)(1)), a
plaintiff responding to an anti-SLAPP motion must ‘“state[] and substantiate[]
a legally sufficient claim.”’
[Citations.] Put another way, the
plaintiff ‘must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.’ [Citations.]”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.)’ (Rusheen . . . , supra, 37 Cal.4th at
p. 1056.)” (Morrow v. Los Angeles
Unified School Dist. (2007) 149 Cal.App.4th 1424, 1435–1436 (Morrow).) We independently review both aspects of this
test—whether plaintiff’s causes of action arise from protected activity and, if
so, whether she has shown a probability of prevailing on the merits. (Id. at p. 1436.)
Protected Activity
As we have explained, “[s]ection 425.16 defines an
‘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,’ covered by the anti-SLAPP statute and subject to an anti-SLAPP
motion, as including statements or writings made before a judicial
connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (b)(1), (e).) Thus, statements, writings and pleadings in
connection with civil litigation are covered by the anti-SLAPP statute, and
that statute does not require any showing that the litigated matter concerns a
matter of public interest. (Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs);
Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137
Cal.App.4th 1, 5 (Healy).)” (
28, 35 (Rohde).)
The deposition and
trial testimony of expert witnesses Dr. Moser and Singh in the personal injury
action certainly fall within the statute’s definition of protected speech. “Section
425.16 is ‘construed broadly, to protect the right of litigants to “‘the utmost
freedom of access to the courts without [the] fear of being harassed
subsequently by derivative tort actions.’”
(Rubin v. Green (1993) 4 Cal.4th 1187, 1194; see § 425.16, subd.
(a); Briggs, supra, 19 Cal.4th at p. 1119.)’ (Healy, supra, 137 Cal.App.4th at p. 5;
see Flatley [v. Mauro
(2006)] 39 Cal.4th [299,] 321–322 [(Flatley)].)” (Rohde,
supra, 154 Cal.App.4th at p. 35.)
Indeed, it would be hard to imagine clearer examples of “classic
petitioning activity” than preparing for and testifying in court or at a
deposition. (See Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1548 (Haight
Ashbury Free Clinics) [statements urging a witness to give false deposition
testimony were protected activity]; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005)
133 Cal.App.4th 658, 673 (Peregrine
Funding) [attorney’s written opposition to Securities Exchange Commission
actions was protected activity under anti-SLAPP statute]; Rohde, supra, at p. 32 [attorney’s litigation-related voicemail
messages, threatening to take “appropriate actions” and accusing estate agent
of conspiring with the opposing party were protected activity].)
Plaintiff
advances a variety of arguments to the contrary. As we explain, none is persuasive. Initially, the alleged wrongful conduct does
not fall within the illegal conduct exception set forth in Flatley, supra,
39 Cal.4th 299. There, the California
Supreme Court “held that the anti-SLAPP statute does not protect speech or
petitioning activity that is conclusively shown or conceded to be ‘illegal as a
matter of law’ and therefore not a valid exercise of the constitutional right
of petition or free speech.” (
198 Cal.App.4th 1153, 1168 (Fremont),
quoting Flatley, supra, at pp. 317,
320.) Appellate decisions have
consistently interpreted the Flatley
rule to apply only to criminal conduct.
(Fremont, supra, at p.
1169.) Plaintiff’s complaint does not
allege criminal misconduct, but rather a welter of contractual breaches and
torts arising out asserted violations of the expert witnesses’ duties of
loyalty to plaintiff. The holding in
of confidentiality and loyalty to a former client cannot be ‘illegal as a
matter of law’ [citation] within the meaning of Flatley.” (
Apart from
unsupported and conclusory assertions in her appellate briefing as to “perjury”
and “fraud,” no attempt has been made to establish that defendants’ testimony
and related activities were illegal as a matter of law.
in Division One of this district is instructive: “[W]ithout any supporting factual
allegations, the complaint’s conclusory references to ‘misrepresentations,’
‘abusive’ conduct, ‘frivolous’ motions, broken promises to ‘cooperate,’ and
fraudulent statements to provide ‘information’ and ‘documents’ are insufficient
to state a cause of action regardless of the legal relationship between the
parties or, more precisely here, lack thereof.”
(Bleavins v. Demarest (2011)
196 Cal.App.4th 1533, 1543.)
Nor can
plaintiff avoid the application of the anti-SLAPP statute by arguing defendants’
testimony was false or misleading and therefore not a “valid exercise” of the
constitutional right to free speech.
That argument was squarely rejected in Haight Ashbury Free Clinics, supra, 184 Cal.App.4th 1539: “To make their threshold showing under the
first prong of the SLAPP analysis, appellants need not prove that the targeted
activity is in fact constitutionally protected.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 94–95 (
intend that . . . to invoke the special motion to strike the defendant must
first establish her actions are constitutionally protected under the First
Amendment as a matter of law”’]; Fox
Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305
[lawsuit was not outside scope of SLAPP statute even though defendant had no
First Amendment right to disclose privileged and confidential information or
refuse to return materials to their rightful owner].)” (Haight
Ashbury Free Clinics, supra, at pp.1548-1549.)
As our
appellate courts have repeatedly recognized:
“The problem with [the plaintiff’s] argument is that it confuses the
threshold question of whether the SLAPP statute applies with the question
whether [the plaintiff] has established a probability of success on the merits.” (Seltzer
v. Barnes (2010) 182 Cal.App.4th 953, 964 (Seltzer), quoting Fox Searchlight Pictures, Inc. v. Paladino,
supra, 89 Cal.App.4th at p. 305.)
Requiring a defendant to prove his or her actions were constitutionally
protected as a matter of law, would render as superfluous the secondary inquiry
as to whether the plaintiff has established a probability of success. (Seltzer,
supra, at p. 964, citing Navellier, supra, 29 Cal.4th at p. 95; see
also Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 [“a court must
generally presume the validity of the claimed constitutional right in the first
step of the anti-SLAPP analysis, and then permit the parties to address the
issue in the second step of the analysis, if necessary”].)
Alternatively,
plaintiff argues her complaint falls outside the purview of the anti-SLAPP
statute because defendants’ constitutionally protected activities were “merely
incidental” to misconduct alleged. “A
cause of action is one ‘arising from’ protected activity within the meaning of
section 425.16, subdivision (b)(1) only if the defendant’s act on which the
cause of action is based was an act in furtherance of the
defendant’s constitutional right of petition or free speech in connection with
a public issue. (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78.)
Whether the ‘arising from’ requirement is satisfied depends on the
‘“gravamen or principal thrust”’ of the claim.
(Episcopal Church Cases (2009) 45 Cal.4th 467, 477, quoting Martinez
v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193.) A cause of action does not arise from
protected activity for purposes of the anti-SLAPP statute if the protected
activity is merely incidental to the cause of action. (Martinez, supra, at p. 188.)” (Fremont,
supra, 198 Cal.App.4th at p. 1166; Hylton
v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 [“If
the core injury-producing conduct upon which the plaintiff’s claim is premised
does not rest on protected speech or petitioning activity, collateral or
incidental allusions to protected activity will not trigger application of the
anti-SLAPP statute.”].)
“As the
Supreme Court has explained, ‘[t]he anti-SLAPP statute’s definitional focus is
not the form of the plaintiff’s cause of action but,
rather, the defendant’s activity that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech or
petitioning.’ (Navellier, supra,
29 Cal.4th at p. 92.) Because conduct
that is alleged to be a breach of duty—e.g., in Navellier, the breach of
contractual obligations—may also fall within the class of constitutionally
protected speech or petitioning activity, a court considering a special motion
to strike must examine the allegedly wrongful conduct itself, without
particular heed to the form of action within which it has
been framed. (Id. at pp. 92–93;
see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,
734–735 [section 425.16 encompasses any cause of action arising from protected
activity, and the statute does not categorically exempt any particular type of
action].)” (Peregrine Funding, supra, 133 Cal.App.4th at p. 671.) “In deciding whether the ‘arising from’
requirement is satisfied, ‘the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd.
(b)(2).)” (Fremont, supra, 198 Cal.App.4th at p. 1166.)
Plaintiff
contends the gravamen of her complaint is one of breach of fiduciary duty,
based on the alleged conspiracy by defendants and Attorney Pene to sabotage
plaintiff’s personal injury action.
Indeed, plaintiff asserts the testimony by defendants in that underlying
lawsuit was “irrelevant” to her instant causes of action because each one of
her claims was factually complete upon the hiring of the expert witnesses, who
were already part of the conspiracy with Attorney Pene, and therefore in breach
of their fiduciary duties to plaintiff when retained. We cannot agree. As our summary of the actions in the
complaint makes clear, whether the claims are alleged to sound in tort,
contract, breach of fiduciary duty, or conspiracy, the causes of action are
premised on defendants’ activities as expert witnesses. That is, the expert witnesses’ alleged
wrongful conduct in preparing for and testifying to plaintiff’s detriment is
integral to each claim.
As pleaded,
each cause of action incorporated the same core set of factual allegations—that
defendants promised “to use their good faith to testify in favor of [plaintiff]
and to act as her experts” in the personal injury action. She retained those experts based on their
representations that there was no conflict of interest between either one and
the MTA, and both experts agreed that her injuries were caused by the accident
with the MTA bus. However, at some
point, motivated by their desires to profit financially by obtaining more cases
from the MTA and Attorney Pene, the two experts secretly entered into a
conspiracy with Attorney Pene, to “act against [plaintiff] to make sure that [she]
would lose her case.” As such,
plaintiff’s repeated assertion—unsupported by citation to the record—that
defendants’ testimony in the underlying action is irrelevant to plaintiff’s
claims is belied by the complaint’s specific allegations, as well as by
plaintiff’s own arguments on appeal.
wrongful conduct by defendants refer to, or implicate, the damaging nature of
their expert opinions and their deposition and
The
point. There, the plaintiffs argued “the
fundamental basis or gravamen of their claims” rested on the defendant law
firm’s “breaches of duty and not its petitioning activity.” (Peregrine
Funding, supra, 133 Cal.App.4th at p. 673.)
The appellate court rejected the argument, based on the nature of firm’s
alleged wrongful actions: “
fact is that some
of the alleged actions
activity the firm undertook
on behalf of its client
Hillman.
Although the overarching thrust of plaintiffs’ claims may be that [the
law firm’s] conduct helped advance the Ponzi scheme—to their detriment—some of
the specific conduct complained of involves positions the firm took in court,
or in anticipation of litigation with the SEC.
We cannot conclude these allegations of classic petitioning activity are
merely incidental or collateral to plaintiff’s claims against [the law firm].” (Ibid.) Indeed, the finding of protected activity is
stronger in plaintiff’s case, given that a primary objective of the alleged
conspiracy with the MTA and Attorney Pene was to offer testimony detrimental to
plaintiff.
Finally,
plaintiff seeks to rely on a line of authority holding the anti-SLAPP statute
inapplicable to actions by clients against their own attorneys, and in
particular Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566 (
the expert witness who allegedly colluded with retained counsel. In most of those cases, however, the
anti-SLAPP statute was deemed “inapplicable in actions by clients against their
own attorneys because the gravamen or principal thrust of the particular causes
of action did not concern a statement made in connection
allegedly constituting a breach of professional duty. (PrediWave
Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th
1204, 1226–1227 [simultaneous representation of clients with conflicting
interests]; Hylton v. Frank E.
Rogozienski, Inc.[, supra,] 177
Cal.App.4th [at p.] 1274 [inducing the plaintiff to agree to an
unconscionable attorney fee]; United
States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009)
171 Cal.App.4th 1617 [acceptance of representation adverse to the plaintiff];
Cal.App.4th 719, 732 [same]; see also Benasra
v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179,
1189 [(Benasra)] [stating that the
action arose from the acceptance of representation adverse to the plaintiff
rather than the litigation conduct that followed].) Thus, those courts concluded that any
statements made in connection with the litigation were merely incidental to the
causes of action.” (Fremont, supra, 198 Cal.App.4th at p. 1170, fn. omitted.) Here, in contrast, the expert witnesses’
testimony was integral to the alleged actionable conduct.
Nor do we
agree that the judicially recognized attorney-malpractice exception to the
anti-SLAPP statute must generally be extended to actions against the client’s
expert witness. The rationale for
attorney malpractice exception was set forth in Kolar v. Donahue, McIntosh & Hammerton (2006) 145
Cal.App.4th 1532 (Kolar). The Kolar
court reasoned that a “‘garden variety’” malpractice cause of action does not
have a chilling effect on advocacy or any other petitioning activity
(see § 425.16, subd. (a)), but instead encourages competent and zealous
representation. (Kolar,
supra, at pp. 1539‑1540.)
That is, the client in a malpractice suit “is not suing because the
attorney petitioned on his or her behalf, but because the attorney did not
competently represent the client’s interests while doing so.” (Ibid.;
see also, e.g., Benasra, supra, 123
Cal.App.4th at p. 1187 [claims did not arise out of attorney’s statements
in arbitration, but out of violations of State Bar rules against representation
of conflicting interests].)
Those same
policy concerns do not apply here because neither Dr. Moser nor Singh was
alleged to have colluded with plaintiff’s counsel. Plaintiff in this matter is not suing her own
attorney for malpractice in the personal injury action, but rather alleging a
conspiracy between opposing counsel and his own experts. The wrongful conduct alleged in the instant
matter is not subsumed within an overarching claim of attorney
malpractice. Accordingly, plaintiff’s
action is distinguishable from the scenario in Robles, supra, 181 Cal.App.4th
566. There, the plaintiffs were “family
members of John Robles, who burned to death when his wheelchair ignited while
he was occupying it.” (
action against the company that provided the wheelchair and others. After the wrongful death action was settled,
they sued their former attorneys and one of their experts hired by their
attorneys, alleging the expert had testified falsely in his deposition in the
underlying case, and their attorneys and expert conspired to commit fraud by
entering into a business relationship to market a wheelchair safety device the
expert developed while retained to prepare testimony on the plaintiffs’
behalf. (
In holding
the anti-SLAPP statute did not apply, Robles
found “to the extent that appellant [expert] and the Wills attorneys
rights, it was on respondents’ behalf, not on behalf of another client, as
in Peregrine Funding. To turn respondents’ own constitutional right
against them when they claim negligence and fraud in the exercise of that right
would be manifestly unfair and surely beyond the contemplation of the
Legislature even in its mandate to construe the statute broadly.” (Robles,
supra, 181 Cal.App.4th at p. 580.)
Noting that the line of authority holding that the anti-SLAPP statute
“does not shield statements made
alleges negligence in the defendant’s representation of the client or breach of
the duty of loyalty,” the Robles
court saw “no reason to create an exception for an expert witness retained by
the plaintiffs to testify on their behalf.”
(Id. at p. 579.)
It was a
short and reasonable step in Robles
to extend the judicially-created attorney malpractice exception to an expert
hired by the plaintiffs’ own attorney when that expert was alleged to have
conspired with that same attorney.
Indeed, it would have been anomalous to apply a different anti-SLAPP
standard to the attorney and expert in those circumstances. However, there is no precedent for creating a
general expert witness exception to the anti-SLAPP statute. We agree with Fremont that the attorney malpractice exception should not be
applied to claims other than “those regarding an attorney’s representation of a
client in litigation.” (
p. 1172 [declining to extend the exception to claims based on an alleged
breach of an attorney’s professional duties to a former client].)
Such an
unprecedented extension of the malpractice exception would be particularly
questionable in this case, where the actionable conduct directly implicates
core free speech activity in the form of an expert witness’s testimony. Testifying experts and attorneys are not
similarly situated with respect to professional duties of loyalty to their
clients. Rather, as expert witnesses,
their obligations went beyond those of client loyalty because those obligations
were subject to, and limited by, their oath to testify truthfully. Nor is plaintiff correct in asserting that
application of the anti-SLAPP statute to defendants will effectively insulate
them against any action arising out of their retention in the personal injury
action.
the burden of proof to plaintiff to make a minimal showing of probability of
succeeding on the merits.
Probability of
Prevailing
We turn to
the second step of the anti-SLAPP inquiry, in which we assess whether the
plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises, supra, 29
Cal.4th at p. 67; Rusheen, supra, 37
Cal.4th at p. 1056.) “‘In order to
establish a probability of prevailing on the claim (. . . § 425.16,
subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “‘state
[] and substantiate[] a legally sufficient claim.’” [Citations.]
Put another way, the plaintiff “must demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.”
[Citations.]’ (
28 Cal.4th 811, 821 [(Wilson)].)” (Rusheen,
supra, at p. 1056.) “In
deciding the question of potential merit, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant
(§ 425.16, subd. (b)(2)); though the court does not weigh the
credibility or comparative probative strength of competing evidence, it 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. [Citation.]” (Wilson,
supra, at p. 821; Morrow, supra, 149 Cal.App.4th at p. 1439.)
Our
assessment of plaintiff’s claims against Dr. Moser is straightforward. Dr. Moser presented uncontested evidence that
the jury in the personal injury action rendered a defense verdict, finding no
negligence as to the MTA and Rush, thereby obviating the issues of injury
causation and damages. As Dr. Moser’s
role in the lawsuit was to opine on the latter issues, plaintiff cannot show a
possibility of prevailing on the merits of her claims. Certainly, plaintiff made no evidentiary
showing to the contrary.
A similar
conclusion was reached in the appeal of plaintiff’s action against Dr. Openshaw
and others, arising out of allegations that Dr. Openshaw and Attorney Pene
“stole the angiogram Openshaw performed because it showed that the impact of
the collision with the MTA bus tore Rosen’s left internal carotid artery, which
caused her subsequent stroke,” thereby preventing plaintiff’s experts from
rendering a favorable opinion as to causation.
(Rosen v. St. Joseph Hospital of
Orange County (2011) 193 Cal.App.4th 453, 456 (Rosen).) The trial court
sustained the defendants’ demurrers on the ground that Rosen’s causes of action
constituted claims for spoliation of evidence, which were barred by the Supreme
Court’s decisions in
Cal.4th 1 and Temple Community Hospital
v. Superior Court (1999) 20 Cal.4th 464. (Rosen,
supra, at pp. 455-456.)
The
legal ground relied on below and issued an alternative holding: “[E]ven assuming a duty to preserve evidence
existed, Rosen cannot allege a cause of action against Openshaw . . . because
she cannot allege the breach of that duty caused her any damages. Rosen alleged the conversion of her angiogram
prevented her from establishing the causation element on her claim against the
MTA. The jury, however, never reached
the causation element of Rosen’s claim
against the MTA because it returned a verdict finding the MTA did not breach
any duty it owed Rosen. Consequently, as
a matter of law, Rosen cannot allege Openshaw . . . caused her to lose the
action against the MTA.” (
464.) The same is true in this case with
regard to Dr. Moser.
name="_ftnref10" title="">[10]
The same
analysis applies to Singh, given that he was retained to offer an expert
biomechanical opinion on causation—that “plaintiff indeed sustained serious
injuries as a result of the collision.”
As it is possible, however, that Singh’s opinion might have had some
bearing on the question of negligence, given that he opined that the MTA did
collide with the school bus, we note another reason why plaintiff failed to
satisfy her burden of showing a probability of prevailing on the
merits—plaintiff failed to present any evidence in support of her claims
against Singh. (See Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 137 [plaintiff
“made no showing in the trial court as to her probability of prevailing on the
merits of her malicious prosecution claim”].)
Here, plaintiff’s allegations as to Singh’s misconduct and complicity in
the supposed conspiracy with the MTA and Attorney Pene were supported by
nothing other than argument. In
contrast, Singh’s declaration was admitted in its entirety and refuted
plaintiff’s allegations of misconduct and damages: Singh’s testimony was competent and favorable
to plaintiff; he never conspired with anyone to act against plaintiff’s interests.
The judgment is affirmed.
Franklin Moser is to recover his costs on appeal.
KRIEGLER, J.
We
concur:
TURNER, P. J.
ARMSTRONG, J.
will generally refer to Ms. Rosen as plaintiff in order to avoid confusing her
with her counsel at trial and on appeal, Glenn Rosen.
is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion
to strike under Code of Civil Procedure section 425.16 is appealable. (Code Civ. Proc., § 904.1, subd.
(a)(13).) All further statutory
references are to the Code of Civil Procedure unless otherwise stated.
