California Court of Appeal Sep 18, 2013 No. D061463Unpublished
Filed 9/18/13 Angelo v. Winet CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER E. ANGELO et al., D061463
Plaintiffs, Respondents, and Cross- Appellants, (Super. Ct. No. 37-2011-00096151- v. CU-NP-CTL)
RANDALL WINET et al.,
Defendants, Appellants, and Cross- Respondents.
APPEALS from an order of the Superior Court of San Diego County,
Joel M. Pressman, Judge. Affirmed.
Wingert Grebing Brubaker & Juskie, Charles R. Grebing, Robert M. Juskie and
Andrew A. Servais for Defendants, Appellants, and Cross-Respondents.
Angelo & Di Monda, Christopher E. Angelo and Joseph Di Monda for
Plaintiffs, Respondents, and Cross-Appellants.
Attorneys Christopher E. Angelo, Joseph Di Monda, and the law firm of
Angelo & Di Monda LLP (collectively, A&D) sued attorneys Randall Winet, Marilyn
Perrin, and the law firm of Winet, Patrick & Weaver (collectively, WPW) for actions
undertaken while WPW represented Leonel Arellano in a personal injury action. The
trial court denied WPW's special motion to strike A&D's complaint under Code of
Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public
participation) statute. (All undesignated statutory references are to the Code of Civil
foundation or personal knowledge, or that are argumentative, speculative,
impermissible opinion, hearsay, or conclusory are to be disregarded." (Gilbert v.
Sykes (2007) 147 Cal.App.4th 13, 26.)
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In ruling on an anti-SLAPP motion, the court does not weigh the evidence or
make credibility determinations; rather, once the plaintiff makes a prima facie showing
of facts which would support a judgment in his or her favor, the court considers the
defendant's opposing evidence, but only to determine if it defeats the plaintiff's
showing as a matter of law by establishing an absolute defense to the claim or the
absence of an element of the cause of action. (Kashian v. Harriman (2002) 98
Cal.App.4th 892, 906.) "If the plaintiff 'can show a probability of prevailing on any
part of its claim, the cause of action is not meritless' and will not be stricken." (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) The plaintiff need only
show a case of " 'minimal merit,' " a burden which is " 'not high.' " (Grewal v. Jammu
(2011) 191 Cal.App.4th 977, 989 (Grewal).) We conduct a de novo review of the trial
court's ruling on a special motion to strike. (Lam v. Ngo (2001) 91 Cal.App.4th 832,
845.)
III. A&D Met its Burden
WPW argues the trial court erred in finding A&D showed a probability of
prevailing on the merits of their claims. Assuming without deciding that WPW met its
burden to show A&D's claims are subject to the anti-SLAPP law, we conclude A&D
produced sufficient evidence that, if credited, shows a reasonable probability of
prevailing and WPW has not defeated that showing as a matter of law.
Preliminarily, we note that both sides submitted declarations to support their
positions that were replete with speculation, hearsay and other infirmities. We
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disregard the inadmissible statements in those declarations in our consideration of the
issues on appeal.
A&D's complaint sets out claims for replevin, trespass, trespass to chattels,
conversion and injunctive relief. WPW does not challenge the adequacy of the
evidentiary showing on any of the affirmative elements of A&D's claims. Instead,
WPW asserts A&D could not demonstrate probable success on the merits because
WPW's activities were absolutely privileged under Civil Code section 47 as they were
either done in connection with an official proceeding or involved the FBI.
Here, the parties have differing views regarding the gravamen of A&D's claims.
A&D characterize their claims as involving WPW's illegal acts of receiving stolen
documents. WPW, on the other hand, characterize their conduct as communications
with the FBI and State Bar and in anticipation of moving to disqualify A&D and set
aside Arellano's assignment. On close analysis of the complaint, it appears A&D went
to great lengths to frame their claims as property torts. In its general allegations, A&D
sets forth WPW's alleged wrongful conduct, including communications with Clark,
receipt of A&D's privileged and confidential documents, use of A&D's documents in
the Tran litigation, and reports to the FBI and State Bar. However, the principal
activities underlying A&D's causes of action include WPW's retention of A&D's
privileged and confidential documents, disclosure of the documents to third parties,
and conspiring with Clark to enter A&D's property and take privileged and
confidential documents.
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"[O]nce a plaintiff shows a probability of prevailing on any part of its claim, the
plaintiff has established that its cause of action has some merit and the entire cause of
action stands. Thus, a court need not engage in the time-consuming task of
determining whether the plaintiff can substantiate all theories presented within a single
cause of action and need not parse the cause of action so as to leave only those
portions it has determined have merit." (Mann v. Quality Old Time Service, Inc.
(2004) 120 Cal.App.4th 90, 106.) If credited, A&D's evidence supports at least part of
their claims. Specifically, A&D's evidence reveals that Perrin met with Clark and
potentially obtained documents from her prior to any direction from the FBI to do so.
Clark claimed she had approximately 10 communications with Perrin between
approximately July 6 to July 20 and, at some point, Perrin asked her for documents.
Clark also admitted to removing files from A&D's office, providing Arellano's
assignment to Perrin, and copying files from A&D's computers without their
permission. A few days after Perrin's second meeting with Clark, Progressive put a
notation in its claim file listing documents provided by Clark. Later, WPW included
unsigned A&D pleadings as exhibits to a writ petition, and Progressive made
discovery demands targeting A&D's missing documents. These facts suggest WPW
went beyond communicating with the FBI and following its directions because it
retained copies of A&D's documents and disclosed them to Progressive. As such,
A&D's claims have at least the requisite " 'minimal merit' " to survive an anti-SLAPP
motion. (Grewal, supra, 191 Cal.App.4th at p. 989.)
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Thus, we next consider whether A&D's claims are barred by the litigation
privilege. "The privilege in [Civil Code] section 47 is 'relevant to the second step in
the anti-SLAPP analysis in that it may present a substantive defense plaintiff must
overcome to demonstrate a probability of prevailing.' " (Rohde v. Wolf (2007) 154
Cal.App.4th 28, 38.) Civil Code section 47 provides the following: "A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial
proceeding, (3) in any other official proceeding authorized by law, or (4) in the
initiation or course of any other proceeding authorized by law and reviewable pursuant
to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil
Procedure . . . ."
A number of cases have considered whether the litigation privilege extends to
noncommunicative conduct. In Kimmel v. Goland (1990) 51 Cal.3d 202, 205
(Kimmel), our high court determined whether the privilege applied to unlawful
recording of telephone conversations made in anticipation of litigation. Relying on an
earlier case in which the court found an attorney could not avoid liability for unlawful
eavesdropping on a phone conversation, but was immune from suit for his subsequent
testimony regarding the conversation (Ribas v. Clark (1985) 38 Cal.3d 355, 364–365
(Ribas)), the Kimmel court concluded the litigation privilege did not apply because
plaintiffs alleged they suffered injury from the recording of confidential conversations,
"not from any 'publication' or 'broadcast' of the information contained in [those]
conversation." (Id. at p. 209.) In reaching this conclusion, the court distinguished
between communicative and noncommunicative acts and reasoned that "an extension
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of [Civil Code] section 47(2) to unlawful conduct undertaken to obtain evidence in
anticipation of litigation, would lead to unacceptable consequences. Suppose, a
prospective defendant kept important documents at home. If a prospective plaintiff, in
anticipation of litigation, burglarized defendant's premises in order to obtain evidence,
plaintiffs here would apparently apply the privilege to protect the criminal conduct.
Such an extension of [Civil Code] section 47(2) is untenable." (Id. at p. 212.)
In contrast, in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1049 (Rusheen), our
high court found that conduct undertaken to collect a judgment, such as obtaining a
writ of execution and levying on a judgment debtor's property, were protected by the
litigation privilege. The Rusheen court explained that '' '[the litigation privilege]
applies to any publication required or permitted by law in the course of a judicial
proceeding to achieve the objects of the litigation, even though the publication is made
outside the courtroom and no function of the court or its officers is involved.
[Citations.] [¶]' . . . Thus, 'communications with "some relation" to judicial
proceedings' are 'absolutely immune from tort liability' by the litigation privilege
[citation]. It is not limited to statements made during a trial or other proceedings, but
may extend to steps taken prior thereto, or afterwards. [Citation.] [¶] 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
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the injury allegedly resulted from an act that was communicative in its essential
nature." (Id. at pp. 1057–1058.) This emphasis on the gravamen of the action has
been followed in subsequent cases. (See, e.g., Jacob B. v. County of Shasta (2007)
40 Cal.4th 948, 957 (Jacob B.) [finding letter written by supervisor of victim witness
program in connection with a family law proceeding regarding visitation rights was a
communicative act protected by the litigation privilege]; Action Apartment Assn., Inc.
v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249 [litigation privilege applies to
filing of a legal action]; Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 616–
617 [litigation privilege barred employee's retaliation claim because the gravamen of
her action was based on an investigation and report that were communicative acts].)
In our view, the conduct at issue in this case is more similar to the type of
nonprivileged conduct at issue in Ribas and Kimmel than the type of acts which fell
under the litigation privilege in Rusheen and Jacob B. Here, the alleged wrongful
activity underlying A&D's claims—trespass and retention and disclosure of A&D's
documents—is noncommunicative in nature. A&D seek an injunction and damages
resulting from WPW's acts of conspiring with Clark to trespass on A&D's property,
keeping A&D's documents, making copies of those documents, and providing them to
third parties such as Progressive. Although A&D reference WPW's communications
with Clark and the FBI, those allegations are not vital to A&D's causes of action.
If A&D had sued WPW for injuries resulting from WPW's communications
with the FBI and State Bar or for conduct undertaken at the FBI's direction, its
litigation privilege defense may have been more viable. However, as we noted, A&D
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carefully crafted its complaint to assert property claims that fall outside the scope of
litigation related activity. Given that the gravamen of this case was
noncommunicative conduct, the litigation privilege does not apply.
DISPOSITION
The order denying WPW's anti-SLAPP motion to strike is affirmed. A&D shall
recover costs on appeal.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiffs demonstrated a probability of prevailing on their claims for replevin, trespass, and conversion, and that the litigation privilege did not bar these claims because the gravamen of the action involved noncommunicative conduct.
Issues
Whether the plaintiffs demonstrated a probability of prevailing on the merits of their claims to survive an anti-SLAPP motion.
Whether the litigation privilege (Civil Code section 47) bars claims based on the alleged wrongful retention and disclosure of confidential documents.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Assuming without deciding that A&D's claims are subject to the anti-SLAPP law, we conclude A&D demonstrated a probability of prevailing on the merits and WPW did not defeat that showing as a matter of law.”
“The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action.”
“Given that the gravamen of this case was noncommunicative conduct, the litigation privilege does not apply.”