California Court of Appeal Nov 19, 2015 No. D067190Unpublished
Filed 11/19/15 Kammer v. Corwin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
ROBERT J. KAMMER, D067190
Plaintiff, Cross-defendant and Respondent, (Super. Ct. No. v. 37-2014-0001790-CU-BC-CTL)
MERLYN A. CORWIN, Individually and as Personal Representative, etc.,
Defendant, Cross-complainant and Appellant;
MARK BAUM et al.,
Cross-defendants and Respondents.
APPEAL from orders of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Reversed and remanded.
Hosie Rice, Spencer Hosie, Anthony K. Lee and Darrell R. Atkinson for
Defendant, Cross-complainant and Appellant.
Law Offices of James E. McElroy and James E. McElroy for Cross-defendants
and Respondents Mark Baum and Imprimis Pharmaceuticals, Inc.
Witham Mahoney & Abbott and Matthew M. Mahoney for Plaintiff, Cross-
defendant and Respondent Robert J. Kammer.
Merlyn A. Corwin (Merlyn), individually and as representative of her husband
Michael P. Corwin's (Michael) estate (Estate), filed a cross-complaint against Robert J.
Kammer, Sandy Greenberg, Mark Baum, and Imprimis Pharmaceuticals, Inc. (Imprimis)
extortion letter offering settlement of proposed litigation was not entitled to anti-SLAPP
protection even though it might have been subject to litigation privilege].) "[T]he
litigation privilege and the anti-SLAPP statute are substantively different statutes that
serve different purposes." (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1519
[purpose of litigation privilege is to guarantee access to courts and purpose of anti-
SLAPP statute is to protect the valid exercise of free speech and petition rights].)
Nevertheless, courts have used the litigation privilege as an aid in construing the scope of
section 425.16, subdivision (e), which may be appropriate when the purposes underlying
both statutes are achieved. (Flatley, supra, 39 Cal.4th at pp. 322-323; A.F. Brown
Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118,
1126.)
Here, the thrust of each of Merlyn's claims is that cross-defendants schemed to
control sales of her Imprimis stock and maintain or elevate stock prices. They allegedly
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took improper actions to cloud title and restrict transfer of Merlyn's Imprimis stock, such
as filing the UCC Lien and placing a "stop transfer" order. Cross-defendants also
allegedly possessed, yet failed to disclose, material inside information that would
significantly impact market prices. As alleged in the SACC, these events occurred when
Merlyn was particularly vulnerable and exhausted from grief, causing her to agree to
transfer her stock at below-market prices. Based on our review of the pleadings and other
relevant documents, these activities related to private business transactions and did not
implicate protected activity under the anti-SLAPP statute. (Blackburn v. Brady (2004)
116 Cal.App.4th 670, 677 [fraud committed in "a purely business type event or
transaction" is not the type of protected activity contemplated under § 425.16, subd. (e)].)
Importantly, there was no need for Kammer to acquire additional debt owed by the
Estate in preparation for litigation on the existing debt owed by the Estate. Ludmer's
filing of a UCC Lien and issuing a "stop transfer" order of Merlyn's stock were done to
prevent the sales of Imprimis stock in the open market rather than to achieve any
litigation objective. (See Garretson v. Post, supra, 156 Cal.App.4th at p. 1522
[nonjudicial foreclosure proceedings, including giving notice of nonjudicial foreclosure,
were not protected conduct]; A.F. Brown Electrical Contractor, Inc. v. Rhino Electric
Supply, Inc., supra, 137 Cal.App.4th at p. 1128 [belief in legally viable claim and threat
to "pursue all available legal remedies" were insufficient to demonstrate that a lawsuit
was under serious consideration].) At the time Ludmer undertook these actions, no
litigation had been threatened.
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Kammer has not established that the allegedly wrongful statements made by
Ludmer during settlement discussions—threats to imminently liquidate Merlyn's
Imprimis stock and the "thin" market for such stock—were "made in connection with an
issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subd. (e).) In
typical cases in which courts have extended anti-SLAPP protection to settlement
communications, the scope of issues under judicial review was evident because litigation
was pending. (See, e.g., Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963
[summarizing anti–SLAPP cases in the settlement negotiation context]; GeneThera, Inc.
v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 ["Both causes of
action in appellants' complaint are based on TG's communication of an offer to settle the
ongoing lawsuit, a matter connected with issues under consideration or review by a
judicial body."], italics added, fn. omitted.) At the time Ludmer's statements were made,
there was no pending lawsuit, and the challenged statements appear directed toward a
private transaction or restriction on sales of Merlyn's Imprimis stock rather than issues to
be considered by a judicial body.2 (See Edwards v. Centex Real Estate Corp. (1997) 53
Cal.App.4th 15, 36 (1997) [litigation privilege does not attach until litigation is imminent
and seriously contemplated, not merely threatened as a negotiating tactic].) Kammer has
2 Baum expressly directed Kammer and Ludmer to obtain a "lock up and leak out" agreement from Merlyn, and Ludmer was "on retainer" as Imprimis's outside counsel. As we have indicated, negotiating a business agreement with the mere threat of litigation lurking in the background does not implicate protected activity under the anti-SLAPP statute. 14
not established that the litigation privilege applies, and we are not persuaded Merlyn's
claims implicated protected activity under the anti-SLAPP statute.
Kammer has not met his burden of showing that the causes of action pleaded in
the SACC arose from protected conduct. Accordingly, the burden of showing a
probability of prevailing on her claims never shifted to Merlyn, and we have no need to
discuss the second prong of section 425.16.
DISPOSITION
The orders granting cross-defendants' anti-SLAPP motions are reversed, and the
case is remanded to the trial court with directions to vacate the orders and enter a new
order denying the motions. Appellant shall recover her costs on appeal.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the cross-defendants' anti-SLAPP motions should have been denied because the underlying claims arose from private business transactions and conduct, not from protected petitioning or free speech activities.
Issues
Whether the cross-defendants' actions in restricting stock sales and negotiating a settlement constituted protected activity under Code of Civil Procedure section 425.16.
Whether the litigation privilege applies to the settlement communications and actions taken by the cross-defendants in the absence of pending or seriously contemplated litigation.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The gravamen of her claims arose from business activities not protected under the anti-SLAPP statute”
“negotiating a business agreement with the mere threat of litigation lurking in the background does not implicate protected activity under the anti-SLAPP statute.”
“Kammer has not met his burden of showing that the causes of action pleaded in the SACC arose from protected conduct.”