Gotti v. Pinnock
Filed 4/19/13 Gotti v. Pinnock CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
NONI GOTTI,
Plaintiff and Respondent,
v.
THEODORE A. PINNOCK,
Defendant and Appellant.
D061802
(Super. Ct. No. 37-2010-00104874-
CU-FR-CTL)
APPEAL from
an order of the Superior Court
of
County, Ronald S. Prager, Judge. Affirmed.
Defendant
Theodore A. Pinnock, a now-disbarred attorney residing in the Philippines,
filed over 200 cases on behalf of plaintiff Noni Gotti against businesses for
alleged violations of the Americans with Disabilities Act (ADA), allegedly
without her knowledge and consent and for disabilities from which she did not
suffer.
Gotti
thereafter filed this action against Pinnock, his law firm, and his partner,
David C. Wakefield.
title="">[1] In her second amended complaint—the
applicable complaint in this action—(hereafter the complaint), she asserted
claims for (1) return of case files, (2) accounting, (3) unprivileged use of
identity, (4) breach of fiduciary duty, (5) negligence, (6)
contract, (8) money had and received, (9) imposition of constructive trust,
(10) forgery, and (11) constructive fraud. In her complaint she also described several
other individuals who Pinnock had used to file similar unmeritorious claims to
show a pattern of activity that would support an award of punitive damages.
Pinnock,
acting in propria persona, responded to the complaint by filing an anti-SLAPP
special motion to strike under Code of Civil Procedure (all further
undesignated statutory references are to the Code of Civil Procedure) section
425.16. In that motion Pinnock asserted
that (1) the complaint was based upon his protected activity of filing
litigation in state and federal courts to enforce the rights of disabled
persons under the ADA, and (2) the
references in the complaint to other litigation filed by Pinnock on behalf of
other plaintiffs were improper.
The court
denied the motion, finding (1) the complaint was not an attempt to limit
Pinnock's free speech rights but rather sought restitution for his alleged
wrongful actions; (2) the action was one excluded from the litigation privilege
because it was a case where a former client was suing her former attorney for
breach of fiduciary duty; and (3) the references to other individuals were not
improper because she was not seeking to collect damages on their behalf.
On this
appeal, Pinnock, again acting in propria persona, concedes that the court did
not err in finding that the anti-SLAPP motion was properly denied as to Gotti's
claims for alleged malpractice/malfeasance by Pinnock. However, he contends that the reference to
other persons on whose behalf he allegedly filed unmeritorious ADA
compliance claims should have been stricken.
We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
In the
complaint Gotti asserted that in 2008 and 2009 Pinnock filed over 200 lawsuits
using her name, "many if not all of which contained false
claims . . . ."
By way of example, she cited the fact that some of the lawsuits sought
damages under the ADA for
discrimination in failing to provide Braille at facilities when "she does
not need Braille, cannot read Braille and has eyesight good enough to
drive." Other complaints sought
damages "for the alleged failure of the defendants to provide wheelchair
accessibility, but [Gotti] does not use a wheelchair, has never required one,
and regularly walks without one."
Other lawsuits filed by Pinnock in Gotti's name "complained of
conditions like doorhandles which were not lever-style, unsecured floormats,
high thresholds, etc., but [she] has all these conditions at her
residence . . . ."
Gotti
further alleged that she never authorized Pinnock to make these claims. She also alleged that her signature had been
falsified on a number of documents in these cases. She alleged that she has requested a copy of
the files from these cases and a full accounting, but "many critical
documents known to exist have still not been received, nor has a full and
complete accounting of the proceeds [Pinnock] received in each of these cases
been provided."
Finally, in
support of her claim for punitive damages, Gotti identified four individuals on
whose behalf Pinnock allegedly filed similar claims. These allegations were pleaded to show a
pattern and practice by Pinnock that would demonstrate punitive damages were
justified in this case.
B.
In his
anti-SLAPP motion to strike, Pinnock argued that Gotti's claims arose out of
his exercise of protected speech and right to petition in the courts to redress
violations of civil rights arising out of past and/or current ligation to
enforce the ADA. He further asserted that claims based upon
the four other individuals identified in the complaint similarly were based
upon his protected activity.
Pinnock
also asserted that Gotti could not meet her burden of showing she would prevail
on her claims because they were based upon privileged communications.
C.
The court
denied Pinnock's motion. In doing so,
the court made the following findings:
"The gravamen of [Gotti's complaint] is not an attempt to limit
[Pinnock's] free speech rights. The
[complaint's] eleven causes of action each attempt to provide [Gotti] with
restitution for [Pinnock's] alleged wrongful actions. Additionally the fact that this is an action
where a client is suing her former attorney for, among other things, a breach
of fiduciary duty shows that this is the exact type of claim that prior case
law has held excluded from the litigation privilege such that [Pinnock's]
speech is not a protected activity under [] section 425.16. [Citation.]
[Pinnock's] assertion that the targeted speech is protected under the
litigation privilege because [Gotti] is alleged to be to be suing for harm that
resulted to [Pinnock's] other clients is not supported by a close reading of
the [complaint]. While [Gotti] does
outline, on pages 18-23 of the [complaint], other alleged instances of
[Pinnock's] deceit[,] [Gotti] does not seek to collect damages based on those
other allegedly aggrieved individuals.
[Citation.] This is thus an
action between a client and her former attorney such that the litigation
privilege does not apply."
DISCUSSION
I. APPLICABLE
LEGAL PRINCIPLES
A special
motion to strike under section 425.16 allows a defendant to gain early
dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (a).) In ruling on an anti-SLAPP motion, the trial
court must first decide whether the moving defendant has made a prima facie
showing that the plaintiff's suit is subject to section 425.16, i.e., that the
challenged claims arise from an act or acts in furtherance of his or her right
of petition or free speech.
(§ 425.16, subd. (b)(1); Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (
made before a judicial proceeding or in connection with an issue under
consideration or review by a judicial body.
(§ 425.16, subd. (e).)
To
determine whether a defendant has met its initial burden, we consider the
pleadings and any supporting and opposing affidavits stating facts upon which
the liability is based. (§ 425.16,
subd. (b)(2); City of
(2002) 29 Cal.4th 69, 79.) "[T]he
'arising from' requirement is not always easily met" and "the mere
fact an action was filed after protected activity took place does not mean it
arose from that activity." (
A claim "arises from" an act when the act "'"forms
the basis for the plaintiff's cause of action."'" (Ibid.) If the defendant establishes the anti-SLAPP
statute applies, the burden shifts to the plaintiff to demonstrate a
"probability" of prevailing on the claim. (Equilon,
supra, 29 Cal.4th at p. 67.) We review de novo the trial court's rulings
on an anti-SLAPP motion. (
Cal.App.4th 635, 645.)
II. ANALYSIS
As noted,
plaintiffs on whose behalf Pinnock allegedly brought unmeritorious ADA
compliance actions to support her claim for punitive damages. These allegations were proper to demonstrate
the reprehensibility of Pinnock's conduct in support of Gotti's claim for
punitive damages.
State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, the
United States Supreme Court held that "'the
of the reasonableness
of a punitive
damages award is
the degree of
reprehensibility of
(
the high court noted that its "'holdings
may be punished
more severely than
a first offender
recognize that repeated
misconduct is more
reprehensible than an
individual instance
p. 423.) Our Supreme Court has similarly
held that conduct is more reprehensible where it is part of a repeated practice
rather than an isolated incident. (Johnson
v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1196.)
Accordingly,
Gotti's allegations of similar actions by Pinnock in other cases were proper to
show the reprehensibility of Pinnock's conduct to support her claim for
punitive damages and were thus not aimed at "protected activity" that
would subject them to being stricken under the anti-SLAPP statute.
DISPOSITION
The order denying Pinnock's anti-SLAPP motion to strike
is affirmed. Gotti shall recover her
costs on appeal.
NARES,
J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
name="_ftn1" title="">[1]
Pinnock's law firm and Wakefield
are not parties to this appeal, so we shall refer only to defendant Pinnock in
this opinion.
