Etessami v. Berenji
Filed 4/12/13 Etessami v. Berenji CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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 THREE
HIRBOD ETESSAMI,
Plaintiff and Respondent,
v.
HOSSEIN FARZAM BERENJI,
Defendant and Appellant.
B235818
(Los Angeles County
Super. Ct. No. BC458841)
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 27,
2013, be modified as follows:
On
page 1, the last two paragraphs should be deleted and replaced with the
following:
Trope
& DeCarolis, Michael L. Trope, Andrew M. Stein; Information Law Group and
Tanya L. Forsheit for Plaintiff and Respondent.
Tabatabai
& Blonstein, Farzad Tabatabai and Robert S Blonstein for Defendant and
Appellant.
There is no change in the judgment.
Filed
3/27/13 Etessami v. Berenji CA2/3
(unmodifed version)
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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has not been certified for publication or ordered published for purposes of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 THREE
HIRBOD ETESSAMI,
Plaintiff and Respondent,
v.
HOSSEIN FARZAM BERENJI,
Defendant and Appellant.
B235818
(Los Angeles County
Super. Ct. No. BC458841)
APPEAL from
an order of the Superior Court of Los Angeles County,
Zaven V. Sinanian, Judge. Reversed in
part with directions, dismissed in part.
Tabatabai & Blonstein, Farzad Tabatabai and Robert S.
Blonstein for Plaintiff and Respondent.
Trope &
DeCarolis, Michael L. Trope, Andrew M. Stein; Information Law Group and Tanya
L. Forsheit for Defendant and Appellant.
_____________________
Defendant and appellant Hossein
Farzam Berenji appeals an order denying his special motion to strike the
complaint of plaintiff and respondent Hirbod Etessami (Hiri) pursuant to Code
of Civil Procedure section 425.16,
name="_ftnref1" title="">[1]
the anti-SLAPP statute. Berenji is an attorney
who represented Pegah Etessami (Pegah) in an underlying marital dissolution
action (the dissolution action) against her husband Rambod Etessami
(Rami). Hiri is Rami’s brother and
former business partner.
In the
dissolution action Berenji obtained an order permitting him and his associates
to inspect and copy financial records in the dental office maintained by Rami
and Hiri. The essence of Hiri’s
complaint is that Berenji exceeded his authority in enforcing the court order
and, in doing so, committed various torts.
We shall conclude that Berenji’s alleged misconduct was activity
protected by the anti-SLAPP statute and that Hiri did not meet his burden of
showing a probability of prevailing on his causes of action. Accordingly, we shall reverse the trial
court’s order denying Berenji’s anti-SLAPP motion.
1. Commencement of the Dissolution Action
Rami and
Pegah were married in 1991. According to
Pegah, she was “predominantly a house wife†and the mother of three
children. Pegah did not have much
knowledge about Rami’s professional and business affairs.
In February 2010, Pegah commenced
the dissolution action by filing a petition for marital dissolution in Los
Angeles County Superior Court (Case No. BD520144). The case was assigned to the Family Law
Division of the court. (See Super. Ct.
L.A. County, Local Rules, rules 2.1(c) & 2.7(d).) Pegah’s first attorney in the dissolution action
was Evan Sussman.
2. Hiri
and Rami’s Partnership
When Pegah
and Rami married, Rami had his own dental practice. In 1993, Rami formed a general partnership
with his brother Hiri. Both Rami and
Hiri are endodontists, that is, dentists who specialize in root canals and root
canal surgery. The brothers were “50-50â€
partners. Their dental office was
located on Sunset Boulevard in West Hollywood (the dental office).
3. Rami’s
Alleged Failure to Disclose Income and Assets
After the
dissolution action commenced, Pegah and her attorney suspected that Rami did
not fully disclose his assets or his earnings from the partnership he had with
Hiri. Without telling Rami, Pegah went
to the dental office when it was closed and copied financial records.
to the keys to the dental office and that she found financial documents either
on top of the bookkeeper Manoucher Lari’s desk or in unlocked cabinets. Hiri and Rami contend that Pegah wrongfully
took the keys to the office from Rami and “stole†the documents from a locked
drawer.
In early October 2010, Pegah filed
an application in the dissolution action accusing Rami of failing to disclose
information concerning the partnership’s pension plan and diverting his income
into Hiri’s account at Hanmi Bank.
name="_ftnref4" title="">[4] The application, prepared by attorney Sussman,
was supported by documents Pegah copied at the dental office. In response to the application, the court
issued an order prohibiting withdrawals from certain bank accounts held by Rami
and Hiri.
4. Berenji
Becomes Pegah’s Counsel
On November
1, 2010, Berenji was retained by Pegah to serve as her lawyer in the
dissolution action. Hiri alleges that
Pegah gave the documents she obtained from the dental office to Berenji.
5. The
Alleged Dissolution of the Partnership
Hiri claims
that he dissolved his partnership with Rami on November 2, 2010. Hiri signed a letter on that date to Rami
stating that he had decided to “immediately dissolve and begin winding up
[their] general partnership.†According
to Hiri, he dissolved the partnership to “protect†his assets and income. After the alleged dissolution, Hiri and Rami
continued to work in the same dental office.
There is no evidence in the record indicating that Hiri or Rami advised
Pegah, Berenji or the judge presiding over the dissolution action about the
alleged dissolution of the partnership at any time in 2010.
6. The
December 8, 2010, Order
After being
retained by Pegah, Berenji reviewed the documents Pegah obtained from the
dental office, as well as Rami’s discovery responses. Based on this review, Berenji believed Rami
had significantly higher income than he reported to the court and was
concealing relevant documents.
On or about
December 7 or 8, 2010, Berenji filed on Pegah’s behalf an ex parte application
in the dissolution action, without giving notice to Rami or his counsel. In the application, Pegah sought an order
allowing Berenji and his consultant, OnlineSecurity, Inc. (Online), to inspect
and copy financial records in the dental office.
On December
8, 2010, the superior court issued an order granting the application. The order provided that Berenji and Online
were granted “full access†to the dental office, including access to physical
books and records and the computer system, “to conduct a thorough investigation
of the true extent and nature of the Practice’s income from 4:00 p.m. Thursday
December 9, 2010 to 4:00 p.m. Friday December 10, 2010.â€
The order
further provided that Rami, Hiri and their employees were “barred from locking
or removing any items from any storage spaces inside the office or in the
building in which the office is located.â€
Additionally, the order required Berenji and Online to observe certain
protocols designed to preserve the privacy interests of Rami, Hiri and their
patients, and to prevent the destruction or alteration of original records.
7. Berenji’s
First Attempt to Inspect and Copy Records
On December
8, 2010, Berenji and two employees of Online, Ronald Lavender and Richard
Gralnik, entered the dental office.
Berenji contends he entered the dental office at 4:00 p.m. Hiri contends Berenji arrived at about 3:40
or 3:45 p.m.
When Berenji
arrived, Hiri and Rami stopped treating their respective patients and
approached Berenji. Berenji had a camera
in one hand, which he used to videotape part of the events of that day. In the other hand, he had the December 8,
2010, order, which he gave to Hiri and Rami.
Hiri and Rami demanded that Berenji stop videotaping. They also demanded that Berenji leave the
dental office. Berenji refused to leave
or stop videotaping. The brothers then
went into a separate room away from the patient treatment area, and attempted
to close the door. Berenji, however, did
not allow them to do so.
One of
Hiri’s patients (Patient X) approached Berenji and demanded that Berenji leave. Berenji refused. Hiri claims that Berenji “shoved†Patient
X. Berenji denies this claim.
confrontation.
In
response to telephone calls by Hiri and Rami, a security guard employed by the
building, about five sheriff’s deputies, and Rami’s lawyer arrived at the scene
shortly after Berenji appeared. After
prolonged negotiations, Berenji was unable to inspect and copy documents that
day. Pursuant to an agreement with
Rami’s lawyer, however, Berenji caused seals to be placed on the dental office
doors after all of its occupants left.
Because
Rami was very upset about Berenji’s arrival, he was unable to finish an
endodontic procedure he was performing on his patient Kent Mirkhani. Mirkhani returned the next day to complete
the procedure.
title="">[6]
8. The
December 10, 2010, Order and Berenji’s Inspection and Copying of Records
At 7:00 a.m.
on December 10, 2010, Gralnik of Online confirmed that the seals to the dental
office were not broken. At 7:30 a.m.,
however, the building management required Gralnik to leave the building.
Later that
day, Rami and Pegah, through their respective counsel, appeared in superior
court. Pursuant to an agreement of the
parties, the court entered a new order superseding the December 8, 2010,
order. This order granted Berenji and
Online access to “all†files and computers at the dental office which contain
any financial records of Rami and Hiri.
The order also included protocols for protecting the privacy of the
brothers’ patients.
Pursuant to
the new order, at about 1:00 p.m. on December 10, 2010, Berenji, Gralnik and
Lavender began inspecting and copying documents and computers at the dental
office. They continued their efforts,
with an overnight break, until the afternoon of Saturday, December 11, 2010.
Later that
day, Hiri and his wife went to the dental office. Hiri claims he found papers and boxes left
everywhere and fast food bags and half-eaten food all over the office. He also alleges that the backup hard drive to
his personal laptop was no longer in the dental office. He and his wife searched for the hard drive
for about half an hour, but could not find it.
On Monday,
December 13, 2010, Hiri and his staff again looked for Hiri’s backup hard drive
to no avail. They also allegedly found
that significant data on their computer system was missing. Hiri’s computer expert, Roderick McLeod, was
able to retrieve much of the data.
However, McLeod was allegedly unable to retrieve about 15,000 X-rays and
computer files relating to about $150,000 of accounts receivables.
In a
declaration in support of his anti-SLAPP motions, Berenji stated that he “never
touched, accessed, or in any way damaged or took any computer or hard
drive.†Instead, he instructed Online to
access and copy electronic records from the partnership’s computers. In their declarations in support of Berenji’s
anti-SLAPP motion, Lavender and Gralnik denied seeing or removing an external
backup hard drive from Hiri’s office, damaging the partnership’s computer
system, or losing any data on that system.
9. Further
Proceedings in the Dissolution Action
On March 7,
2011, Pegah filed a motion to join Hiri as a party to the dissolution action
and a proposed complaint for joinder against Hiri and other defendants. The proposed complaint set forth causes of
action for conversion, fraudulent transfer and conspiracy. The gravamen of the complaint is that Hiri
conspired with Rami to convert Pegah’s community property and to fraudulently
transfer the community income and assets to Hiri.
On April 6,
2011, the court granted Pegah’s motion to join Hiri as a party to the
dissolution action. At the hearing on
the motion, the court stated that it appeared the documents Berenji obtained
from the inspection of the dental office indicated Rami had failed to disclose
hundreds of thousands of dollars of income.
The court further stated: “I was
very queasy about [issuing the December 8 and 10, 2010, orders] in part because
I anticipated that it could easily erupt into the kind of fracas that both
parties refer to, although from different perspectives when it actually
happened. But now good thing I did. Who knows what records we never would have
seen or known about if there hadn’t been the ability to just go in and get them
by surprise.â€
10. Hiri’s
Complaint in this Action
On April 4,
2011—two days before Hiri was made a party in the dissolution action—Hiri filed
the complaint in this action against Pegah and Berenji. The complaint is primarily based on Pegah’s
purported wrongful taking of documents from the dental office and the Berenji’s
conduct at the dental office on December 9, 10, and 11. The complaint set forth causes of action for
(1) conversion, (2) declaratory relief, (3) false imprisonment, (4) abuse of
process, (5) intentional infliction of emotional distress, (6) negligence,
(7) trespass to personal property, (8) trespass to real property,
(9) intentional interference with economic relationship, (10) negligence
interference with economic relationship, and (11) invasion of privacy. We shall discuss the factual and legal claims
of the complaint in greater detail post.
11. Berenji’s
Demurrer, Motion to Strike and Special Motion to Strike in This Action
On May 20,
2011, Berenji filed a demurrer to the complaint and a motion to strike portions
of the complaint in this action. In his
demurrer, Berenji argued that the court had no “jurisdiction†over the
complaint in this action “because the Family Law Court has already asserted
jurisdiction over the parties and issues raised therein†(§ 430.10, subd.
(a)); the action should be stayed because there is another action pending
between the same parties on the same causes of action (§ 430.10, subd. (c); and
the complaint does not contain sufficient facts to state a cause of action
(§ 430.10, subd. (e).)
On June 6,
2010, Berenji filed a special motion to strike the complaint pursuant to the
anti-SLAPP statute.
title="">[7] Berenji’s motion was supported with
declarations by Pegah, Berenji, Lavender and Gralnik, and a request for judicial
notice of documents in the dissolution action.
Hiri’s
opposition to the anti-SLAPP motion was supported with declarations by Hiri,
Rami’s patient Kent Mirkhani, bookkeeper Manoucher Lari, computer specialist
Roderick McLeod, dental office receptionist Sylvedra Harris, and Olaf Muller,
the attorney who drafted documents relating to the alleged dissolution of the
partnership.
12.
of Related Cases
On May 20,
2011, Berenji filed a notice of related cases, claiming that this action and
the dissolution action were related. On
June 23, 2011, Department 1 of Los Angeles County Superior Court entered an
order denying Pegah’s request to deem this action and the dissolution action as
related cases.
13. The
July 26, 2011, Order
On July 26,
2011, the trial court entered an order denying Berenji’s anti-SLAPP
motion. The order also sustained
Berenji’s demurrer with leave to amend with respect to the first cause of
action and overruled the demurrer as to the remaining causes of action. Additionally, the order granted Berenji’s
motion to strike allegations regarding attorney fees but denied the remainder
of the motion. Berenji filed a timely notice
of appeal of the July 26, 2011, order.
A.
Berenji
contends that the superior court presiding over this action did not have
“jurisdiction†over Hiri’s complaint.
Alternatively, he argues the trial court should have stayed this action
pending the resolution of the dissolution action. These arguments were raised in Berenji’s
demurrer to the complaint in this action but were not raised in his anti-SLAPP
motion. Because an order overruling a
demurrer is not appealable (Peregrine,
supra, 133 Cal.App.4th at p. 668, fn.
5), we do not reach the merits of these arguments. We instead on our own motion dismiss the
appeal to the extent it challenges the trial court’s ruling overruling
Berenji’s demurrer.
Berenji
makes no arguments with respect to the trial court’s ruling on his motion to strike
portions of the complaint. This opinion
thus does not address that ruling.
B.
Section
425.16, the anti-SLAPP statute, is designed to “nip SLAPP litigation in the
bud†by striking causes of action which chill the free exercise of speech or
petitioning rights. (
52 Cal.App.4th 1036, 1042.) To
accomplish its purposes, the anti-SLAPP statute must be “construed
broadly.†(§ 425.16, subd. (a).)
In
determining whether to grant an anti-SLAPP motion, the court engages in a
two-step process. “First, the court
decides whether the defendant has made the 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 to 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.†(Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (
We review
the denial of an anti-SLAPP special motion to strike de novo. (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen);
Lam v. Ngo (2001) 91 Cal.App.4th
832, 845.)
1. Each
Cause of Action Arises From Protected Activity
In
determining whether a plaintiff’s cause of action arises from any act in
furtherance of the defendant’s right to petition or free speech, we do not
focus on “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.â€
name="_ftnref8" title="">[8] (Navellier
v. Sletten (2002) 29 Cal.4th 82, 92.)
We review the gravamen of a cause
of action to see if it is based on defendant’s protected activity. (McConnell
v. Innovative Artists Talent & Literary Agency, Inc. (2009) 175
Cal.App.4th 169, 177; Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) If the cause of action alleges both protected
and unprotected activity, it will be subject to a section 425.16 motion unless
the protected conduct is merely “incidental†to the unprotected conduct. (Salma
v. Capon (2008) 161 Cal.App.4th 1275, 1287; Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 614.)
“ ‘A cause
of action “arising from†defendant’s litigation
activity may appropriately be the subject of a section 425.16 motion to
strike.’ [Citations.] ‘Any act’ includes communicative conduct such
as the filing, funding, and prosecution of a civil action. [Citation.]
This includes qualifying acts committed by attorneys in representing
clients in litigation.†(
execution and levying on a judgment debtor’s property was protected activity];
accord Taheri Law Group v. Evans (2008)
160 Cal.App.4th 482, 489 (Taheri) [an
attorney’s alleged improper solicitation of a client and wrongful enforcement
of a settlement agreement was protected activity]; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087 (
a defendant’s alleged improper filing of a lawsuit may appropriately be the
subject of a section 425.16 motion to strikeâ€]); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 (
dispute her client had with a third party was subject to an anti-SLAPP
motion].)
In the
present case, Hiri’s complaint alleged that Berenji engaged in the following
activity:
·
On
December 9, 2010, while in the dental office pursuant to a court order, Berenji
“improperly confined†Hiri by telling Hiri that “under a court order†he “could
not leave the premises.â€
·
On
December 9, 2010, Berenji videotaped, abused and harassed two patients, namely
Patient X and Kent Mirkhani.
·
On
December 9, 2010, Berenji and his agents “entered the [dental] office,
including the private patient area, at about 3:40 p.m., even though the order
of December 8, 2010, permitted them to enter only at 4:00 p.m.†In addition, on December 11, 2010, Berenji
and his agents “stayed at the office past the time that the order of December
10, 2010, had permitted.â€
·
On
or about December 10 or 11, 2010, while Berenji and Pegah were inspecting and
copying documents in the dental office pursuant to a court order, defendants
“took†Hiri’s personal backup hard drive, destroyed “most of the data that was
on the office’s computer system,†and failed to follow the order’s protocols to
preserve patient privacy.
·
On
dates unknown in 2010, Pegah “entered the office and stole various financial
documents relating to [Hiri] or the practice.â€
“[B]y reading and disseminating†Hiri’s private financial records,
Berenji violated Hiri’s reasonable expectation of privacy.
The gravamen
of each cause of action in Hiri’s complaint is that Berenji acted tortuously
while inspecting and copying documents pursuant to a court order, or by using
“stolen†documents in the dissolution action.
This litigation activity is subject to an anti-SLAPP motion. (See Rusheen,
supra, 37 Cal.4th at p. 1056;
at p. 1087; Dowling,
Hiri argues
that Berenji’s actions were “illegal†and thus do not qualify for protection
under the anti-SLAPP statute. In
85 Cal.App.4th 1356 (Paul), we
addressed a similar argument. There, the
defendants conceded that, as a matter of law, their conduct was illegal and a
violation of the rules prohibiting money laundering set forth in the Political
Reform Act. (Id. at p. 1367.)
We held that under those circumstances, the defendants’ conduct was
not protected by the anti-SLAPP statute.
(Ibid.) We emphasized, however, that “had there been
a factual dispute as to the legality of defendants’ actions, then we could not
so easily have disposed of defendants’ motion.â€
(Ibid.)
In Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), our Supreme Court agreed with Paul’s conclusion that section 425.16 cannot be invoked by a
defendant whose assertedly protected activity is illegal as a matter of law.
at p. 317.) The defendant in
letter to the plaintiff demanding a seven-figure payment. The court concluded that the defendant’s
“communications constituted criminal extortion as a matter of law and, as such,
were unprotected by the constitutional guarantees of free speech or
petition.†(Id. at p. 305.) In coming to
this conclusion, the court stated that “where either the defendant concedes the
illegality of its conduct or the illegality is conclusively shown by the evidence,
the [anti-SLAPP] motion must be denied.â€
(Id. at p. 316.)
In
Services, Inc. (2010) 182 Cal.App.4th 1644 (Mendoza), the plaintiff alleged that the defendant sold information
to plaintiff’s prospective employer it obtained from the Megan’s Law website in
violation of a statute, Penal Code section 290.4, subdivision (d)(2)(E).
motion, the plaintiff argued that the defendant’s “illegal†conduct was not
protected activity. (
argument. It stated: “Our reading of Flatley leads us to conclude that the Supreme Court’s use of the
phrase ‘illegal’ was intended to mean criminal, and not merely violative of a
statute.†(Id. at p. 1654; accord G.R.
v. Intelligator (2010) 185 Cal.App.4th 606, 616 (Intelligator) [failure to redact information in violation of a
court rule was “not the type of criminal activity addressed in either
Here, Berenji does not concede he
engaged in illegal activity, and Hiri has not conclusively shown by evidence
that Berenji’s conduct was “illegal.â€
Berenji’s activity thus does not fall into the narrow exception for
illegal activity discussed in Paul,
Hiri
contends that, as a matter of law, Berenji’s use of a camcorder constituted
“criminal eavesdropping†in violation of Penal Code section 632. We disagree.
Penal Code section 632 prohibits the recording of “confidential
communication†without consent. (Pen.
Code, § 632, subd. (a).) Berenji openly
and over Hiri’s objection recorded communications between Hiri and others. There was nothing “confidential†about the
communications because Hiri knew he was being recorded while he was speaking.
Hiri also
argues Berenji’s use of a camcorder violated Penal Code 647, subdivision
(j)(1).
being a “Peeping Tom.†(
1, 8.) We cannot conclude, as Hiri
urges, that Berenji violated this statute as a matter of law because there was
evidence that all of the people videotaped in the office understood they were
being filmed during the course of a court-sanctioned inspection.
Additionally, Hiri argues that by
using documents Pegah obtained from the dental office, Berenji committed the
crime of receiving “stolen†property in violation of Penal Code section
496. There was evidence, however, that
Pegah only obtained documents concerning the Hiri-Rami partnership by entering
the office with Rami’s implied consent.
As the spouse of one of the two partners, Pegah had a right to copy such
documents. (See Family Code, § 721,
subd. (b)(1) [spouses have a duty to provide each other access to books and
records regarding community property]; Corp. Code, § 16403, subd. (b) [a
partnership shall provide partners access to books and records pertaining to
the period during which they were partners].)
Based on this record, we cannot conclude, as Hiri urges, that Pegah
“stole†the documents as a matter of law.
Moreover,
Berenji cannot be guilty of the crime of receiving stolen property unless he
knew the property was stolen. (Pen.
Code, § 496, subd. (a).) Hiri did not
present evidence conclusively establishing that Berenji had such knowledge.
In sum,
virtually all of Berenji’s alleged wrongful conduct arose from his litigation
activity in the dissolution action and none of it was, as a matter of law,
illegal. Berenji therefore has made the
threshold showing that Hiri’s causes of action are subject to an anti-SLAPP
motion.
2. Hiri
Has Not Demonstrated a Probability of
Prevailing on Any of His Causes of Action
Having
determined that Berenji’s alleged conduct falls within the scope of the
anti-SLAPP statute, we turn to the issue of whether Hiri established a
probability that he will prevail on his causes of action. “To establish a probability of prevailing,
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.’ †(Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (
must 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.’ †(Ibid.) We cannot, however, strike a cause of action
if the plaintiff establishes a probability that he or she will prevail on any
part of it, even if other parts are without merit. (Mann
v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106 (
Berenji
argues that Hiri cannot demonstrate a probability of success on the merits with
respect to any of his causes of action because Berenji’s conduct is absolutely
privileged under the litigation privilege.
The litigation privilege, as codified by Civil Code section 47,
subdivision (b), “ ‘ “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 [has]
some connection or logical relation to the action.†[Citation.]
The privilege “is not limited to statements made during a trial or other
proceedings, but may extend to steps taken prior thereto, or afterwards.†[Citation.]’ †(Olsen
v. Harbison (2010) 191 Cal.App.4th 325, 333.) The privilege also applies to conduct outside
the courtroom. (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.) “ ‘Any doubt as to whether the privilege
applies is resolved in favor of applying it.’ â€
(Tom Jones Enterprises, Ltd. v.
County of Los Angeles (2013 212 Cal.App.4th 1283, 1294.)
“Because the
litigation privilege protects only publications and communications, a
‘threshold issue in determining the applicability’ of the privilege is whether
the defendant’s conduct was communicative or noncommunicative. [Citation.]
The distinction between communicative and noncommunicative conduct
hinges on the gravamen of the action.
[Citations.] That is, the key in
determining whether the privilege applies is whether the injury allegedly
resulted from an act that was communicative in its essential nature.†(Rusheen,
supra, 37 Cal.4th at p. 1058; accord
40, 45 (Brown) [“The litigation
privilege applies only to torts arising from communicative acts; it does not
protect purely noncommunicative tortious conductâ€].)
In
defendant, an attorney, wrongfully caused a writ of execution to be levied upon
his exempt funds. As a preliminary
matter, the court noted that “judgment enforcement efforts, as an extension of
a judicial proceeding and related to a litigation objective, are considered to
be within the litigation privilege.†(
only protects the communicative act of applying for a writ of execution, “it
also extends to the act of carrying out the directive of the writ. To hold otherwise would effectively strip the
litigation privilege of its purpose.†(
underlying the litigation privilege of encouraging free access to the courts by
discouraging derivative litigation simply outweighs the policy of providing
[the plaintiff] with a tort remedy for an allegedly wrongful enforcement of a
judgment.†(Id. at p. 50.)
In
approved of and refined the holding in Brown. The high court concluded that “where the
cause of action is based on a communicative act, the litigation privilege
extends to those noncommunicative actions which are necessarily related to that
communicative act.†(
In
on behalf of his client a default judgment against Terry Rusheen. Cohen permitted his client to take steps to
collect on the judgment, such as obtaining a writ of execution and levying on
Rusheen’s property in Nevada. (
process. He claimed that Cohen obtained
the default judgment by filing false and perjurious declarations. (Id.
at p. 1054.)
Rusheen
argued that the wrongful act of levying on property in execution of judgment
was a noncommunicative act and thus unprivileged. (Rusheen,
supra, 37 Cal.4th at p.
1061.) The California Supreme Court,
however, held that even if levying on property involved noncommunicative
conduct, “the gravamen of the action was not the levying act, but the
procurement of the judgment based on the use of allegedly perjured declarations
of service.†(Id. at p. 1062.) The court
further held that because the gravamen of the complaint was a privileged
communication, the privilege extended to “necessarily related noncommunicative
acts (i.e., act of levying).†(
Turning to
the complaint in this action, we shall discuss whether Hiri has met his burden
of establishing a probability that he will prevail on each cause of
action. This discussion will often
include an analysis of whether Hiri’s claim is barred by the litigation
privilege.
a. Conversion
and Trespass to Personal Property.
Hiri’s first cause of action is for conversion. “ ‘ “Conversion is the wrongful exercise of
dominion over the property of another.
The elements of a conversion are the plaintiff’s ownership or right to
possession of the property at the time of the conversion; the defendant’s
conversion by a wrongful act or disposition of property rights; and damages.†’
†(Plummer
v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) A cause of action for conversion can be based
on either the taking of property or its intentional destruction or
alteration. (5 Witkin, Summary of Cal.
Law (10th ed. 2005) Torts, §§ 710, 711, pp. 1034-1035 (Witkin Summary).)
Hiri’s
seventh cause of action is for trespass to personal property. “Trespass to personal property often arises
in circumstances where a defendant’s interference with another’s property falls
short of that required for a conversion cause of action. Thus, cases have described this tort as ‘the
“little brother of conversion.†’ †(
Cal.App.4th 1590, 1607.) A trespass to
personal property occurs when the plaintiff injures but does not wholly destroy
the defendant’s property. (6 Witkin
Summary, supra, § 1718, p. 1252.)
The complaint alleged that Berenji
committed conversion and trespass to personal property by (1) destroying
certain data stored on the dental practice’s computer system and (2) taking a
backup hard drive for Hiri’s personal laptop.
data on the computer system, Hiri filed declarations essentially stating that
prior to the inspection conducted by Berenji and his associates from Online,
the practice’s computer system contained certain data, but after the inspection
some of that data was destroyed.
Berenji,
however, stated in his declaration that he did not touch the practice’s
computer system. Instead, according to
Berenji, pursuant to a court order he directed Lavender and Gralnik of Online
to inspect and copy information stored on the system. Lavender and Gralnik stated in their
declarations that they did so. Hiri
offered no evidence contradicting these facts.
It is thus
undisputed that Berenji’s only conduct in connection with the alleged
destruction of the data on the computer system was to instruct Lavender and
Gralnik to inspect and copy the data pursuant to a court order. This communicative conduct was protected by
the litigation privilege. Hiri thus did
not meet his burden of showing he would prevail on his conversion and trespass
to personal property causes of action to the extent they are based on the
destruction of data stored on the practice’s computer system.
By holding that the litigation
privilege bars Hiri’s claim against Berenji, we do not suggest that Hiri was
prohibited from seeking any remedy for the alleged destruction of data in the
dissolution action. (
encourage free access to the courts and finality of judgments by limiting
derivative tort claims arising out of litigation-related misconduct and by
favoring sanctions within the original lawsuitâ€].) We merely conclude that the policy underlying
the litigation privilege outweighs the policy of providing Hiri with a tort
remedy against Berenji. (
Hiri’s
second basis for his conversion and trespass to personal property causes of
action is that Berenji allegedly stole his back up hard drive to his personal
laptop. He failed, however, to file
substantial evidence to support this claim.
In his
declaration, Hiri stated the following.
Pursuant to a court order, Berenji, Pegah and seven or eight associates
inspected and copied records in the dental office on Friday, December 10, 2010
and in the early hours of Saturday, December 11, 2010.
December 10, his staff, Rami, and Rami’s patient were there. On December 11, at about 2:00 p.m., Hiri and
his wife Jackie arrived at the office.
Shortly thereafter, Hiri noticed that his backup hard drive to his
personal laptop “was gone.†He and his
wife looked for the hard drive for about 30 minutes but could not find it.
Hiri then
came back to the dental office on the morning of Monday, December 13,
2010. He and his staff looked for the
hard drive on that day and over the next few weeks, but they never found
it. Hiri claimed: “I have reason to believe that Berenji and/or
Pegah took it, but I will not broach the subject further now.†Berenji, Pegah, Lavendar and Gralnik,
conversely, each stated in their respective declarations that they never saw a
back up hard drive and did not take it.
Hiri did not
establish he could prevail on his conversion and trespass to personal property
causes of action to the extent they are based on Berenji’s alleged taking of
his hard drive. He conceded that in
addition to Berenji, many people were in the dental office before, during and
after Berenji’s inspection. Further,
Hiri was not in the office when the inspection took place or at any time on
December 12. His “belief†that Berenji
and/or Pegah stole the hard drive is nothing more than speculation.
b. Declaratory
Relief. Hiri’s second cause of
action is for declaratory relief. This
equitable action is limited to certain subjects. A person with an interest in a contract or
other written instrument, for example, may seek a declaration regarding his or
her rights and duties under the contract or written instrument. (§ 1060; 5 Witkin, Cal. Procedure (5th ed.
2008) Pleading, § 858, pp. 273-274 (Witkin Procedure).) Declaratory relief is also available to any
person “who desires a declaration of his or her rights or duties . . . in
respect to, in, or over or upon property, or with respect to the location of
the natural channel of a watercourse . . . .â€
(§ 1060.) Additionally, the
construction or validity of a statute, ordinance or regulation is also a proper
subject for declaratory relief. (5
Witkin Procedure, § 859, pp. 274-275.)
Here, the
complaint sought a declaration that Berenji “unlawfully accessed information,
data, or property†belonging to Hiri or his patients and that Berenji “damaged
the data for the office’s computer.â€
Hiri, however, has cited no authority—and we have found none—that these
are proper subjects for declaratory relief.
Hiri’s reliance
on Coronado Cays Homeowners Assn. v. City
of Coronado (2011) 193 Cal.App.4th 602, 608 (Coronado), Tashakori v. Lakis
(2011) 196 Cal.App.4th 1003, 1012, fn. 6 (Tashakori)
and Wollenberg v. Tonningsen (1935) 8
Cal.App.2d 722, 726 (Wollenberg) is
misplaced. In each of those cases, the
plaintiff sought a declaration regarding the rights and duties of the parties
with respect to property, which is a subject of declaratory relief under the
plain language of section 1060. (
which party is responsible for maintaining a berm that laterally supports
bulkheads located on real property within a subdivision]; Tashakori, at p. 1012, fn. 6 [declaration regarding whether
plaintiffs had an equitable easement over certain real property];
regarding rights of parties with respect to the stock of the
corporation].) In Coronado, the plaintiff’s declaratory relief claim also required an
interpretation of written instruments, namely a special use permit and a
recorded map concerning certain real property.
(Coronado, at pp. 605, 609.)
By contrast,
in this case, Hiri does not seek a declaration regarding the rights and duties
of the parties with respect to property or a written instrument. He seeks declaratory relief regarding factual
issues underlying alleged torts committed by Berenji. This is not a proper subject for declaratory
relief. Hiri therefore failed to demonstrate
the legal sufficiency of the complaint with respect to his declaratory relief
cause of action. Accordingly, the trial
court should have granted Berenji’s special motion to strike this claim.
c. False
Imprisonment. The gravamen of Hiri’s third cause of
action for false imprisonment is that Berenji allegedly made erroneous statements
to Hiri about the scope of the court order, namely that the order prohibited
Hiri from leaving the dental office.
with the December 8, 2010, order.
Berenji therefore is immune from liability for false imprisonment under
the litigation privilege. Accordingly,
the trial court erroneously denied Berenji’s special motion to strike Hiri’s
false imprisonment cause of action.
d.
process. In order to prevail on an abuse
of process cause of action, the plaintiff must establish that “the defendant
(1) contemplated an ulterior motive in using the process, and
(2) committed a willful act in the use of the process not proper in the
regular conduct of the proceedings.†(
Hiri cannot establish either element.
As to the first element, the
complaint alleged that Berenji’s ulterior motives in abusing process were to
“punish†Hiri, to harm his practice, and to use Hiri as a “pawn to obtain
leverage against his brother Rami†in the dissolution action. Hiri, however, cited no evidence in his brief
to support these allegations.
With respect
to the second element, the complaint alleged that Berenji misused the December
8 and 10, 2010, orders by (1) failing to observe the required protocols,
(2) falsely imprisoning Hiri, (3)
“videotaping and abusing†Hiri’s and Rami’s patients, (4) destroying
data on the practice’s computer system, and (5) stealing Hiri’s backup hard drive. As explained ante, however, Hiri cannot establish his false imprisonment or
conversion claims. Further, he presented
no evidence that Berenji failed to comply with the required protocols or that
he sustained any damages as a result.
This leaves
Hiri’s claim that Berenji videotaped and abused his patient and Rami’s
patient. Hiri, however, has no standing
to pursue a claim for alleged injuries sustained by third parties. (See § 367.)
Further, as we shall explain post,
Hiri did not present any evidence that he was damaged by an alleged
interference with his economic relationship with his patient. Hiri therefore did not meet his burden of
showing a probability that he would prevail on his abuse of process cause of
action.
e. Intentional
Infliction of Emotional Distress.
Hiri’s fifth cause of action is for intentional infliction of emotional
distress (IIED). The elements of IIED
are (1) extreme and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional distress;
and (3) actual and proximate causation of the emotional distress by the
defendant’s outrageous conduct. (
1035, 1050 (Hughes).)
A
defendant’s conduct is “outrageous†only when it is “ ‘ “so extreme as to
exceed all bounds of that usually tolerated in a civilized community.†’ †(Potter
v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.†’ †(Id.
at p. 1004.)
Liability
for IIED “ ‘ “does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.†’ †(Hughes,
supra, 46 Cal.4th at
p. 1051.) Additionally, except for
narrow circumstances not applicable here, the law limits IIED to egregious
conduct directed toward the plaintiff. (Potter,
supra, 6 Cal.4th at p. 1002.)
Here, Hiri
bases his IIED cause of action on Berenji’s acts of (1) videotaping two
patients and “assaulting and battering one of them and harassing the otherâ€;
(2) taking Hiri’s backup hard drive; and (3) destroying data on the practice’s
computer system. As explained
of these claims. Hiri does not have
standing to sue for alleged torts committed against third-party patients. There is no substantial evidence that Berenji
converted Hiri’s hard drive. And Berenji
is protected by the litigation privilege against Hiri’s claim regarding alleged
destruction of data on the practice’s computer system.
Additionally, we conclude that as a
matter of law, Berenji’s alleged conduct toward
Hiri was not sufficiently “outrageous†to support an IIED claim. Berenji’s alleged interactions with Hiri’s
patients were not directed toward
an IIED claim by Hiri. This leaves Berenji’s alleged theft of a hard drive and
the failure of Berenji’s associates to preserve certain data on a computer
system. While this alleged conduct is
certainly reprehensible, it is not the stuff of IIED.
Hiri also failed to plead and prove
sufficient facts to support his assertion he suffered from “severe emotional
distress†as a result of Berenji’s alleged conduct. Hiri claims that he has not “slept wellâ€
since Berenji conducted his “raid†on the dental office.
amount of weight and looks skinny since the incident. This does not constitute the type of severe
emotional distress that no reasonable person in a civilized society should be
expected to endure. (See
that she suffered discomfort, worry, anxiety, upset stomach, concern and
agitation as a result of the defendant’s conduct were insufficient].) Hiri therefore did not meet his burden of
showing that he would prevail on his IIED cause of action.
f. Negligence. Hiri’s sixth cause of action is for
negligence. He bases this claim on
Berenji’s alleged (1) assault and battery of one patient and harassment of
another patient, (2) failure to observe the protocols required by the December
8 and 10, 2010, orders, (3) conversion of Hiri’s backup hard drive, and (4)
destruction of data on the practice’s computer system. As explained ante, however, Hiri did not meet his burden of establishing the
merits of any of these claims.
g. Trespass
to Real Property. Hiri’s eighth
cause of action is for trespass to real property. Trespass to real property is an “unlawfulâ€
interference with its possession. (5
Witkin Summary, supra, § 693, p.
1018; Girard v. Ball (1981) 125
Cal.App.3d 772, 788.) “A peaceable entry
on land by consent is not actionable.â€
(5 Witkin Summary, § 696, p. 1021; accord Girard v. Ball, at p. 788.)
In the present case, Berenji
lawfully entered the dental office pursuant to court orders. Hiri contends that Berenji violated the
December 8, 2010, order and thus committed the tort of trespass by arriving
15-20 minutes too early on December 9, 2010.
Although an
action for trespass will support an award of nominal damages where actual
damages are not shown (Staples v. Hoefke
(1987) 189 Cal.App.3d 1397, 1406), a trespass action cannot be based on a mere
trifle (Civ. Code, § 3533). In this
case, at the time Berenji entered the dental office on December 9, 2010,
neither Hiri nor Rami stated that he was not permitted to be there because he
came too early. Rather, they objected to
Berenji’s presence in the office at any time. The dispute was resolved the
following day when the trial court issued a second order permitting Berenji to
conduct the inspection.
Hiri has not
produced any evidence indicating that Berenji’s entry into the dental office at
about 3:45 p.m., instead of at 4:00 p.m., on December 9, 2010, made any
difference whatsoever to Hiri. Indeed,
the videotape of Berenji’s initial entry into the dental office indicates that Berenji’s
alleged early entry was not an issue at the time.
In reaching our conclusion that Hiri
has not established the probability of prevailing on his trespass claim we take
into account the context of the alleged trespass. Berenji, an attorney, went to the dental
office pursuant to a discovery order. If
we ruled that each time an attorney commenced a court-sanctioned document
inspection or deposition a few minutes too early, he or she were subject to a
collateral suit for “trespass,†we would open the doors to precisely the type
of litigation the anti-SLAPP statute is designed to prohibit. We decline to do so.
h.
Economic Relationship. Hiri’s ninth
and tenth causes of action are for intentional interference with economic
relationship and negligent interference with economic relationship. These causes of action are based on Berenji’s
alleged interference with Hiri’s relationship with Patient X.
An essential
element of both intentional and negligent interference with economic
relationship is actual economic harm caused to the plaintiff proximately caused
by the acts of the defendant. (
fn. 6 [intentional interference]; North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786
[negligent interference].) Although the
complaint alleged that Hiri suffered damages as a result of Berenji’s conduct,
Hiri presented no evidence to support this claim. Hiri’s evidence merely indicated that Patient
X left the office on December 9, 2010.
He presented no evidence, however, that Patient X did not pay Hiri for
his services or that Patient X was no longer Hiri’s patient. Hiri therefore did not meet his burden of
showing that he was likely to prevail on his intentional and negligent
interference with economic relationship causes of action.
i. Invasion
of Privacy. Hiri’s eleventh and
final cause of action is for invasion of privacy. This cause of action is based on two
acts. The first is Berenji’s alleged
taking of Hiri’s hard drive, which allegedly contained Hiri’s “personal data,â€
as well as confidential communications between Hiri and his lawyers and Hiri
and his patients. Hiri, however, did not
present substantial evidence to show that Berenji took his hard drive.
The second
basis for this cause of action is Berenji’s alleged dissemination of documents
Pegah allegedly “stole†from Hiri. Hiri,
however, did not cite any evidence indicating that Berenji “disseminated†such
documents to third parties other than the court presiding over the dissolution
action. It appears that Hiri contends
Berenji’s act of filing documents in the superior court constituted an invasion
of privacy. If that is the basis for his
cause of action, then Berenji is protected by the litigation privilege. (See Jacob
B. v. County of Shasta (2007) 40 Cal.4th 948, 961 [litigation privilege
applies even to a constitutionally based privacy cause of action].)
Hiri’s
reliance on Susan S. v. Israels
(1997) 55 Cal.App.4th 1290 (Susan S.)
is misplaced. There, a health care
provider mistakenly sent confidential mental health records of an alleged
victim of sexual assault to the criminal attorney representing the man accused
of committing the assault. (
them, transmitted them to the defense psychiatrist and used them in
cross-examining [the sexual assault victim.]â€
(Ibid., italics added.) In the present case, by contrast, Hiri filed
no evidence that Berenji knew documents he received from Pegah included
confidential financial information that she was not entitled to obtain. Susan
S. thus lends no support to Hiri’s claim.
Hiri did not
meet his burden of establishing a probability of prevailing on his invasion of
privacy cause of action. The trial court
thus erroneously denied Berenji’s special motion to strike this claim.
DISPOSITION
The order dated July 26, 2011,
denying Berenji’s special motion to strike the complaint is reversed and the
trial court is directed to enter a new order granting the motion. To the extent Berenji is appealing the July
26, 2011, order overruling his demurrer to the complaint, we dismiss the appeal
on our motion. Respondent Berenji is
awarded costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
KITCHING,
J.
We
concur:
CROSKEY, Acting P. J.
ALDRICH, J.
SLAPP is an acronym for
strategic lawsuit against public participation.
All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
The order also overruled, in
part, Berenji’s demurrer to the complaint.
To the extent Berenji challenges the court’s decision to overrule the
demurrer, the order is not appealable. (
Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 668, fn. 5 (
