Bowen v. Lin ( 2022 )

Filed 6/6/22; Certified for Publication 6/23/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RAY B. BOWEN, JR., 2d Civil No. B312831
(Super. Ct. No. 56-2020-
Cross-complainant and 00547900-CU-BC-VTA)
Appellant, (Ventura County)
v.
VICTOR LIN et al.,
Cross-defendants and
Appellants.
Victor and Yvonne1 Lin and their adult children
Calvin and Gail moved to strike a cross-complaint filed by Ray B.
Bowen, Jr., as a strategic lawsuit against public participation
(SLAPP). The trial court granted Gail’s motion to strike the
causes of action against her, but denied the other motions. In
their appeal, Victor, Yvonne, and Calvin contend the court should
have stricken the causes against them because they arose from
acts in furtherance of the right to petition and because Bowen
1 We use the Lin family’s first names for clarity.
failed to show a probability of prevailing on the merits of those
causes. In his cross-appeal, Bowen contends the court should not
have stricken his causes against Gail because they did not arise
from acts protected by the anti-SLAPP statute and/or because he
showed a probability of prevailing. Bowen also contends the
court erred when it declined to rule on his evidentiary objections.
We affirm the portion of the order granting Gail’s motion, vacate
the portion denying Victor, Yvonne, and Calvin’s motions, and
remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Victor and Calvin practiced medicine out of an
Oxnard office owned by Victor and Yvonne. The office sustained
$25,000 in damages when a pipe in an adjacent office started
leaking. The Lins hired Bowen as their attorney to demand that
the owner of the adjacent office, Cynthia Lau, pay to rectify the
water damage.
After Lau rejected the settlement demands, Bowen
recommended that the Lins sue. Victor and Yvonne agreed, but
Calvin did not. Bowen nevertheless named him as a plaintiff in
the lawsuit (the Lau case). He estimated that prosecuting the
case would cost between $25,000 and $50,000.
Over the next three years, the Lins paid Bowen
nearly $68,000. Frustrated with ever-mounting costs, Victor told
Bowen to cease all nonessential work on the Lau case while Gail,
a licensed attorney, tried to reach a settlement with Lau’s
estate.2 Bowen replied that he would not cease work and would
not grant Gail permission to settle the case as long as he was
counsel of record. Gail then formally substituted in and settled
the case.
2 Lau passed away in 2019.
2
Bowen sued Victor and Yvonne for breach of contract
and quantum meruit, seeking to recover the unpaid balance of his
fees. Victor and Yvonne cross-complained, alleging that Bowen
breached his fiduciary duties, committed malpractice, and failed
to execute a written fee agreement. Calvin joined the lawsuit as
a cross-complainant.
Bowen then filed his own cross-complaint. His first
cause of action asserted that Calvin breached his oral contract
with Bowen when he stopped cooperating in the Lau case and
fired Bowen as his attorney. The second, third, and fourth
causes—for intentional interference with contractual relations,
intentional interference with prospective economic relations, and
negligent interference with prospective economic relations—
asserted that Calvin and Gail encouraged their parents to stop
cooperating with Bowen, fire him as their attorney, withhold
payments due, and work with Gail to achieve a settlement.
Bowen’s fifth cause asserted that Victor, Yvonne, and Calvin
committed fraud when they induced him to provide legal services
in the Lau case—all while providing minimal payments—
knowing they would have Gail settle the case on the eve of trial.
The sixth cause asserted that all four members of the Lin family
conspired to defraud Bowen by encouraging him to work on the
Lau case while knowing they would settle it themselves after
substituting him out.
The Lins filed anti-SLAPP motions to strike relevant
portions of Bowen’s cross-complaint. The trial court granted
Gail’s motion, concluding that the actions she took on behalf of
her parents and brother were protected by the anti-SLAPP
statute and that the litigation privilege prevented Bowen from
showing a probability of prevailing on the causes of action
3
against her. The court denied the motions filed by Victor,
Yvonne, and Calvin, concluding that the causes against them
were “probably not” based on communications made “‘in
connection with an issue under consideration or review by a
judicial body.’” It did not decide whether Bowen established a
probability of prevailing on those causes. It also declined to rule
on the parties’ evidentiary objections.
DISCUSSION
The anti-SLAPP statute
Code of Civil Procedure3 section 425.16 sets forth “a
two-step process for determining whether an action is a SLAPP.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First,
the defendant must show that “that the challenged cause of
action is one arising from protected activity . . . by demonstrating
that the act underlying the . . . cause fits [within] one of the
categories spelled out in section 425.16, subdivision (e).’” (Ibid.)
If the defendant makes that showing, the burden shifts to the
plaintiff to “demonstrate[] a probability of prevailing on” the
merits of their cause. (Ibid.) “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute . . . is . . . subject
to being stricken.” (Id. at p. 89.)
We independently review a trial court’s decision to
grant or deny an anti-SLAPP motion. (Flatley v. Mauro (2006) 39
Cal.4th 299, 325-326 (Flatley).) When undertaking that review,
“‘[w]e consider “the pleadings[] and supporting and opposing
affidavits upon which the liability or defense is based”’” (id. at p.
326), but “do[] not weigh evidence or resolve conflicting factual
claims” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384). Instead, we
3 Unlabeled statutory references are to the Code of Civil
Procedure.
4
limit our inquiry “to whether the plaintiff has stated a legally
sufficient [cause of action] and made a prima facie factual
showing sufficient to sustain a favorable judgment.” (Id. at pp.
384-385.) We “accept[] the plaintiff’s evidence as true, and
evaluate[] the defendant’s showing only to determine if it defeats
the plaintiff’s [cause] as a matter of law.” (Id. at p. 385.) Causes
of action “‘with the requisite minimal merit may proceed.’
[Citation.]” (Ibid., alterations omitted.)
Bowen’s causes of action against Victor, Yvonne, and Calvin
1. Protected activity
Victor, Yvonne, and Calvin first contend the trial
court erred when it concluded that the causes of action against
them did not arise from protected activity. We agree.
In his first cause of action, Bowen alleges that he
entered into an oral contract to represent Calvin in the Lau case.
Pursuant to the contract, “Calvin agreed to actively cooperate
with Bowen . . . to achieve a successful result [and] . . . obtain[]
an award for damages against the [Lau defendants].” Calvin
breached that contract “by failing and refusing to actively
cooperate with Bowen” and then “terminating [their] attorney-
client relationship.”
Few acts are more squarely protected by the
anti-SLAPP statute. Among the acts protected by the statute are
“statement[s] or writing[s] made before a . . . judicial proceeding”
(§ 425.16, subd. (e)(1)) and “written or oral statement[s] or
writing[s] made in connection with an issue under consideration
or review by a . . . judicial body” (id., subd. (e)(2)). The first basis
for Bowen’s breach of contract cause of action—the extent of
Calvin’s communications with Bowen about the Lau case—fits
within these categories: The “filing, funding, and prosecution of a
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civil action” are protected acts. (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1056.) And but for the decision to file, fund, and
prosecute the Lau case, Bowen’s breach of contract cause of
action would have no basis. (Moss Bros. Toy, Inc. v. Ruiz (2018)
27 Cal.App.5th 424, 435-436; see also Navellier, supra, 29 Cal.4th
at p. 90.)
The anti-SLAPP statute also protects “conduct in
furtherance of the exercise of the constitutional right of petition.”
(§ 425.16, subd. (e)(4).) Decisions about hiring and firing one’s
attorney—the second basis for Bowen’s breach of contract cause
of action—are within this category. (See, e.g., Gage v. Atwater
(1902) 136 Cal. 170, 172 [noting that a “client has the absolute
right to change [their] attorney at any stage”]; Taheri Law Group
v. Evans (2008) 160 Cal.App.4th 482, 491 (Taheri) [“the
‘important right to counsel of one’s choice’ is . . . well
established”].) The trial court thus erred when it concluded that
Bowen’s breach of contract cause of action did not arise from
protected activity.
We reach the same conclusion with respect to the
interference causes of action. Bowen bases these causes on
Calvin encouraging his parents to stop cooperating with Bowen
in the Lau case, sever their attorney-client relationship with him,
and instead have Gail negotiate a settlement. These
communications were not tangential to the Lau case, but directly
pertained to its resolution. (Taheri, supra, 160 Cal.App.4th at p.
489.) As such, they were “‘made in connection with an issue
under consideration or review by a judicial body.’” (Ibid.,
alterations omitted; see also Pech v. Doniger (2022) 75
Cal.App.5th 443, 462 (Pech) [advising clients to terminate
attorney’s services is protected activity].) Bowen’s second, third,
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and fourth causes of action thus “plainly . . . arose from”
protected conduct. (Taheri, at p. 489.)
So did the fifth and sixth. Bowen bases these causes
of action on the Lins’ purported intent that he litigate the Lau
case until “just before trial,” at which point they would
“terminate [his] legal services, refuse to pay . . . the balance owed
for fees and costs, [and] have [Gail] settle the [case].” But the
communications Victor, Yvonne, and Calvin had with Gail about
settling the Lau case were “made in connection with an issue
under consideration or review by a . . . judicial body” (§ 425.16,
subd. (e)(2)) and were therefore protected by the anti-SLAPP
statute (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777, 784). And the parts of those communications
the Lins allegedly concealed or withheld to induce Bowen to
represent them were similarly protected as corollary to those
communications. (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027,
1044 [anti-SLAPP statute applies to speech defendants “should
have engaged in”].) The trial court thus erred in concluding that
the fraud causes of action against Victor, Yvonne, and Calvin did
not arise from protected activity.
Relying on Loanvest I, LLC v. Utrecht (2015) 235
Cal.App.4th 496 (Loanvest), Bowen counters that the trial court
correctly determined that his causes of action against Victor,
Yvonne, and Calvin did not arise from protected activity because
they sued him for malpractice in their cross-complaint. We
disagree.
In Loanvest, a law firm successfully opposed a motion
for a preliminary injunction against its corporate client.
(Loanvest, supra, 235 Cal.App.4th at pp. 499-500.) The
corporation then reorganized and sued the law firm for
7
malpractice. (Id. at p. 500.) The law firm moved to strike the
cause of action pursuant to the anti-SLAPP statute. (Ibid.) The
trial court granted the firm’s motion, concluding that the
corporation’s malpractice cause arose from protected activity.
(Id. at pp. 500-501.) Our colleagues in the First District
disagreed: “Where . . . a legal malpractice action is brought by an
attorney’s former client, . . . ‘the client is not suing because the
attorney petitioned on [their] behalf, but because the attorney did
not competently represent the client’s interests while doing so.’”
(Id. at p. 504.) “‘Instead of chilling [protected] petitioning
activity, the threat of malpractice encourages the attorney to
petition competently and zealously.’” (Ibid.) This lack of a
chilling effect prevents a malpractice cause of action from being
struck as a SLAPP. (Ibid.)
Here, Bowen did not move to strike the malpractice
cause of action from Victor, Yvonne, and Calvin’s cross-complaint;
Victor, Yvonne, and Calvin moved to strike causes from the
cross-complaint Bowen filed in response to their cross-complaint.
These anti-SLAPP motions do not challenge Bowen’s handling of
the Lau case, but instead challenge causes of action that arise
from the decisions they made with regard to that handling. This
distinction is critical: Unlike a threat of malpractice, an attorney
threatening litigation against former clients for decisions they
made while the attorney represented them would chill the
constitutional right of petition by preventing the clients from
fully and openly discussing litigation matters among themselves,
with that attorney, or with another attorney. (See Taheri, supra,
160 Cal.App.4th at 489.) Such acts are at the very heart of the
anti-SLAPP statute’s protections. (Ibid.)
8
2. Probability of prevailing
Victor, Yvonne, and Calvin next contend Bowen
failed to show a probability of prevailing on the causes of action
against them. But the trial court did not consider the merits of
this contention during the proceedings below. Nor did it rule on
the admissibility of the parties’ evidence. “Under such
circumstances, the more prudent course is to remand the matter
[for] the trial court to determine in the first instance whether
[Bowen] demonstrated a reasonable probability of prevailing on
the merits of his causes of action.” (Hunter v. CBS Broadcasting
Inc. (2013) 221 Cal.App.4th 1510, 1527.)
Bowen’s causes of action against Gail
In his cross-appeal, Bowen contends the trial court
erred when it concluded that: (1) his causes of action against
Gail did not arise from activity protected by the anti-SLAPP
statute, and (2) he did not show a probability of prevailing on the
merits of those causes. We disagree with both contentions.
1. Protected activity
The interference and fraud causes of action against
Gail allege that she urged her parents to stop cooperating with
Bowen in the Lau case, fire him as their attorney, and have her
negotiate a settlement. The trial court determined that these
causes arose from protected conduct based on Taheri, supra, 160
Cal.App.4th 482. In that case, as here, a law firm sued an
attorney for inducing the firm’s clients to end their relationship
with it and hire the attorney instead. (Id. at p. 485.) The
attorney argued that his conduct soliciting the clients was
protected since it involved communications about a pending case.
(Id. at p. 486.) Our colleagues in Division 8 of this court agreed,
9
and upheld the order granting the attorney’s anti-SLAPP motion.
(Id. at p. 489.)
Bowen’s sole challenge to the trial court’s reliance on
Taheri is that the case is no longer good law. In 2018—10 years
after Taheri was decided—the State Bar adopted Rule 4.2(a) of
the Rules of Professional Conduct (Rule 4.2(a)). That rule states
that, “[i]n representing a client, a lawyer [may] not communicate
directly or indirectly about the subject of the representation with
a person the lawyer knows to be represented by another lawyer
in the matter, unless the lawyer has the consent of the other
lawyer.” (Asterisks omitted.) To Bowen, had Rule 4.2(a) been in
effect when Taheri was decided, the outcome of that case would
have been different because violations of the Rules of Professional
Conduct, like legal malpractice claims, would have been deemed
unworthy of protection by the anti-SLAPP statute.
Bowen is wrong. Rules of conduct substantively
identical to Rule 4.2(a) have been in effect for decades, including
when Taheri was decided. (See Rules Prof. Conduct, former Rule
2-100(A); see also City of San Diego v. Superior Court (2018) 30
Cal.App.5th 457, 462, fn. 1 [“[t]he substance of former rule
2-100(A) . . . became rule 4.2(a)” in 2018].) And those rules
simply do not apply to situations like the one here.
Rule 4.2(a), like former Rule 2-100(A), applies to an
attorney “representing a client.” Its purpose is to prevent an
attorney representing one party in a case from communicating
with another represented party about the case without the
consent of that party’s attorney. (Mitton v. State Bar of Cal.
(1969) 71 Cal.2d 525, 534.) Gail, like the attorney in Taheri, did
not represent any party in the Lau case when she allegedly
engaged in the communications underlying Bowen’s causes of
10
action against her. Rule 4.2(a) was thus inapplicable. (HTC
Corp. v. Technology Properties Ltd. (N.D.Cal. 2010) 715
F.Supp.2d 968, 972 [lawyer not involved in an action did not
violate former Rule 2-100(A) when communicating with party
represented in the action].) Bowen’s challenge to the trial court’s
reliance on Taheri accordingly lacks merit.
2. Probability of prevailing
The trial court determined that the litigation
privilege prevented Bowen from showing a probability of
prevailing on his causes of action against Gail. Bowen does not
directly challenge that determination, but instead argues that a
consideration of the evidence he submitted in support of his
cross-complaint shows he is likely to prevail. We disagree. Even
if Bowen’s evidence is considered and credited, the litigation
privilege prevents him from prevailing on his causes of action
against Gail.
“For well over a century, communications with ‘some
relation’ to judicial proceedings have been absolutely immune
from tort liability by the [litigation] privilege” set forth in Civil
Code section 47, subdivision (b). (Rubin v. Green (1993) 4 Cal.4th
1187, 1193.) The privilege has “an expansive reach” (id. at p.
1194) and applies to claims such as interference with contractual
relations (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990)
50 Cal.3d 1118, 1132), interference with prospective economic
relations (ibid.), and fraud (Carden v. Getzoff (1987) 190
Cal.App.3d 907, 913). It attaches well before the parties enter
the courtroom, covering “‘preliminary conversations and
interviews’ related to contemplated action” and other “‘steps
taken prior’ to judicial proceedings.” (Rubin, at p. 1195.)
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The litigation privilege bars liability for “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 ha[s] some
connection or logical relation to the action.” (Silberg v. Anderson
(1990) 50 Cal.3d 205, 212.) It is “relevant to the second step in
the anti-SLAPP analysis in that it may present a substantive
defense [the nonmoving party] must overcome to demonstrate a
probability of prevailing.” (Flatley, supra, 39 Cal.4th at p. 323.)
Whether the privilege shields Gail’s actions is a question of law
subject to our independent review. (Kashian v. Harriman (2002)
98 Cal.App.4th 892, 913.) “Any doubt about whether the
privilege applies is resolved in favor of applying it.” (Ibid.)
The litigation privilege applies here. Bowen’s causes
of action against Gail are all based on the advice she gave her
parents and brother regarding the settlement of the Lau case.
Such communications meet all four criteria laid out in Silberg,
supra, 50 Cal.3d 205. (Seltzer v. Barnes (2010) 182 Cal.App.4th
953, 970-971; see also Pech, supra, 75 Cal.App.5th at pp. 465-
466.) Bowen thus cannot show a probability of prevailing. The
trial court correctly granted Gail’s anti-SLAPP motion.
Bowen’s evidentiary objections
Finally, Bowen contends the trial court erred when it
refused to rule on his objections to the Lins’ declarations. But
there was no need to do so because the court did not reach the
merits of any of Bowen’s causes of action. Because the court
must now evaluate the merits of the causes against Victor,
Yvonne, and Calvin, it will have the opportunity to consider the
admissibility of the evidence in support of or in opposition to
12
those causes. We express no opinion as to how the court should
rule on the objections.
DISPOSITION
The portions of the trial court’s May 28, 2021, order
denying Victor and Yvonne’s anti-SLAPP motion and denying
Calvin’s anti-SLAPP motion are vacated, and the matter is
remanded for the court to determine whether Bowen has
demonstrated a probability of prevailing on the causes of action
against Victor, Yvonne, and Calvin. In all other respects, the
order is affirmed. The Lins shall recover their costs on appeal.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
13
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Hua Gallai & Gonzalez, Nicholas T. Hua, Giacomo
Gallai and Steven C. Gonzalez for Cross-defendants and
Appellants.
James A. Howard and Ray B. Bowen, Jr. for Cross-
complainant and Appellant.
Filed 6/23/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RAY B. BOWEN, JR., 2d Civil No. B312831
(Super. Ct. No. 56-2020-
Cross-complainant and 00547900-CU-BC-VTA)
Appellant, (Ventura County)
v. ORDER CERTIFYING
OPINION FOR PUBLICATION
VICTOR LIN et al., [NO CHANGE IN
JUDGMENT]
Cross-defendants and
Appellants.
THE COURT:
The opinion in the above-entitled matter filed on June 6,
2022, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
There is no change in judgment.
____________________________________________________________
YEGAN, Acting P. J. PERREN, J. TANGEMAN, J.