Kettler v. Gould ( 2018 )

Filed 4/20/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOEL D. KETTLER, B282160
Cross-complainant and (Los Angeles County
Respondent, Super. Ct. No. LC101909)
v.
LESLIE GOULD et al.,
Cross-defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Frank J. Johnson, Judge. Affirmed.
The Ring Law Firm and Bart I. Ring for Cross-defendants
and Appellants.
Fredman Lieberman Pearl and Howard S Fredman for
Cross-complainant and Respondent.
__________________________
SUMMARY
Cross-defendants Leslie Gould and his wife Susan Gould
contend the trial court erred when it denied in part their anti-
SLAPP (strategic lawsuit against public participation) motion.
The motion sought to strike certain allegations in a cross-
complaint filed by Joel D. Kettler, alleging defamation and other
causes of action. The court denied the motion to the extent cross-
complainant’s claims were based on complaints to the Certified
Financial Planners Board of Standards (the CFP Board), finding
the CFP Board was not a public agency and there was no public
interest issue. The court also denied the motion to the extent the
claims were based on communications to cross-complainant’s
employer, finding the litigation privilege did not apply.
We conclude the trial court’s ruling was correct on both
points and affirm the order.
FACTUAL AND LEGAL BACKGROUND
1. The Cross-complaint
Cross-complainant is a financial planner and advisor who
acted in that capacity for cross-defendant Leslie Gould’s elderly
parents from 1990 until they died, in 2010 and 2011. Cross-
complainant had a “close familial relationship” with the Goulds.
The elder Goulds gave cross-complainant a power of attorney in
2006, and he managed many aspects of their finances, including
payment of their bills and disbursements they authorized to
Leslie Gould and his sister. According to the cross-complaint, the
parents made these arrangements after expressing concerns their
children were spendthrifts who lived beyond their means, to
control their access to the parents’ funds.
After the deaths of the parents, cross-complainant became
the trustee of the Gould Living Trust, of which Leslie Gould and
2
his sister were the beneficiaries. (Cross-complainant succeeded
Leslie Gould, who resigned as trustee in June 2011.)
The cross-complaint alleges that in February and March
2013, cross-complainant learned that Leslie Gould had
intentionally misdirected correspondence and financial
statements to his home, to hide the existence of some of the
trust’s assets from his sister. Cross-complainant exposed this
wrongdoing, as well as Leslie’s interception of his parents’ mail,
including payments. The complaint alleges that, as a result of
this exposure:
“13. . . . Cross-Defendants have engaged in a
malicious, vicious, mean-spirited, scorched earth campaign
against Cross-Complainant, falsely accusing Cross-
Complainant of misappropriating the [elder] Goulds’ funds
and intentionally deceiving them to obtain the [power of
attorney] and become the successor trustee. In addition to
filing this frivolous lawsuit, Cross-Defendants have filed
complaints with every person or agency imaginable,
including, but not limited to, the Department of Insurance,
Certified Financial Planner Board of Standards, Inc. (‘CFP
Board’), Financial Industry Regulatory Authority
(‘FINRA’), Cross-Complainant’s employer, and any other
government agency, company, or person that could possibly
interfere with Cross-Complainant’s ability to engage in his
profession. As a result of Cross-Defendants’ wrongful
actions, Cross-Complainant’s employment relationship with
his employer has been terminated.”
And:
“14. Cross-Defendants have also defamed Cross-
Complainant’s reputation to other Third Parties, including
3
to existing and potential clients, which has caused one or
more clients to cancel their business with Cross-
Complainant and no longer use Cross-Complainant as their
financial planner/advisor. Cross-Defendants have caused
Cross-Complainant to lose clients and hence, commissions,
management fees, service fees and performance bonuses.”1
The allegations just quoted are incorporated into each of the
cross-complaint’s nine causes of action.2 In addition to damages,
cross-complainant sought injunctive relief “preventing Cross-
Defendants from continuing their wrongful conduct” in
connection with several causes of action.
We will describe additional allegations as necessary in our
discussion of the claims on appeal.
2. Cross-defendants’ First Anti-SLAPP Motion
Cross-defendants filed an anti-SLAPP motion (Code Civ.
Proc., § 425.16).3 They sought to strike the entire cross-
complaint. Because all of cross-complainant’s causes of action
were based at least in part on unprotected activity, the court
concluded the anti-SLAPP motion could be denied in its entirety,
and did so. Cross-defendants appealed.
1 The term “Third Parties” refers to “Cross-Complainant’s
existing and potential clients.”
2 The causes of action are libel per se, slander per se,
defamation, trade libel, intentional interference with prospective
economic advantage, intentional interference with contractual
relationship, intentional infliction of emotional distress, breach of
contract and unfair business practices.
3 Further statutory references are to the Code of Civil
Procedure unless otherwise specified.
4
While the appeal was pending, the Supreme Court decided
Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral). Baral gives the
courts and parties precise directions on an issue relevant to cross-
defendants’ motion: how a special motion to strike operates
“against a so-called ‘mixed cause of action’ that combines
allegations of activity protected by the statute with allegations of
unprotected activity.” (Id. at p. 381.)
Because the parties and the trial court did not have the
benefit of Baral, and the trial court denied the anti-SLAPP
motion without considering whether and to what extent
allegations of protected activity could be stricken from a cause of
action without affecting the allegations of unprotected activity,
we reversed the trial court’s ruling and remanded with directions
to do so. (Gould v. Kettler (Oct. 31, 2016, B266652) [nonpub.
opn.].)
3. Cross-defendants’ Second Anti-SLAPP Motion
and the Trial Court’s Ruling
Before we turn to the ruling on appeal, we briefly explain
the statutory background and the Baral decision the trial court
was tasked with applying.
a. The background
A defendant may bring a special motion to strike any cause
of action “arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue . . . .” (§ 425.16, subd. (b)(1).) Acts in furtherance of
free speech rights in connection with a public issue include
“(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement
5
or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public
interest.” (Id., subd. (e).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. It first looks to see whether the
moving party has made a threshold showing that the challenged
causes of action arise from protected activity. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) If
the moving party meets this threshold requirement, the burden
then shifts to the other party to demonstrate a probability of
prevailing on its claims. (Ibid.) In making these determinations,
the trial court considers “ ‘the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.’ ” (Ibid., quoting § 425.16, subd. (b)(2).)
b. The Baral case
Baral resolves the question how to treat a cause of action
that is based on allegations of both protected activity and
unprotected activity, enunciating several principles.
First, “when the defendant seeks to strike particular claims
supported by allegations of protected activity that appear
alongside other claims within a single cause of action, the motion
cannot be defeated by showing a likelihood of success on the
claims arising from unprotected activity.” (Baral, supra,
1 Cal.5th at p. 392.) To do so would “undermine[] the central
6
purpose of the statute: screening out meritless claims that arise
from protected activity, before the defendant is required to
undergo the expense and intrusion of discovery.” (Ibid.)
Second, “an anti-SLAPP motion, like a conventional motion
to strike, may be used to attack parts of a count as pleaded.”
(Baral, supra, 1 Cal.5th at p. 393.)
Third, “[a]ssertions that are ‘merely incidental’ or
‘collateral’ are not subject to section 425.16. [Citations.]
Allegations of protected activity that merely provide context,
without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)
Fourth, “particular alleged acts giving rise to a claim for
relief may be the object of an anti-SLAPP motion. [Citation.]
Thus, in cases involving allegations of both protected and
unprotected activity, the plaintiff is required to establish a
probability of prevailing on any claim for relief based on
allegations of protected activity. Unless the plaintiff can do so,
the claim and its corresponding allegations must be stricken.”
(Baral, supra, 1 Cal.5th at p. 395.)
Finally, for the guidance of litigants and courts, Baral
provided a summary of the showings and findings required by the
statute. Thus:
At the first step, “the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them. When relief is sought based on
allegations of both protected and unprotected activity, the
unprotected activity is disregarded at this stage. If the court
determines that relief is sought based on allegations arising from
activity protected by the statute, the second step is reached.”
(Baral, supra, 1 Cal.5th at p. 396.)
7
At the second step, “the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. The
court, without resolving evidentiary conflicts, must determine
whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment. If not, the
claim is stricken. Allegations of protected activity supporting the
stricken claim are eliminated from the complaint, unless they
also support a distinct claim on which the plaintiff has shown a
probability of prevailing.” (Baral, supra, 1 Cal.5th at p. 396.)
c. Cross-defendants’ motion
Cross-defendants’ second anti-SLAPP motion sought an
order striking all allegations of “ ‘defamatory’ communications or
‘complaints’ filed with” the California Department of Insurance,
the CFP Board, FINRA, cross-complainant’s employer (AXA
Advisors, LLC), and Anthem Blue Cross. The motion also
challenged “any and all communications preparatory to or in
anticipation of the bringing of an action or other official
proceeding . . . .” Cross-defendants argued their statements to
FINRA, the Department of Insurance and the CFP Board were
“absolutely privileged with no exceptions” and their statements to
cross-complainant’s employer “are clearly shielded by the
litigation privilege . . . .”
The trial court granted cross-defendants’ motion “as to the
FINRA and the Department of Insurance based claim as, per . . .
Sections 425.16(e)(1) or (2), these are essentially governmental
agencies and any claims/complaint made to them would be
protected.” The court denied the motion “as to claims based on
complaints to [the CFP Board], Anthem, [and] AXA . . . which are
not public agencies and there is not a public interest issue here.
8
The Court does not find the litigation privilege argument with
respect to AXA to be persuasive.”
Cross-defendants filed a timely notice of appeal.
DISCUSSION
Cross-defendants contend that any complaint filed with the
CFP Board “must be considered ‘protected speech,’ ” and that its
prelitigation communications to AXA were protected speech and
“should be considered absolutely privileged speech and not
actionable pursuant to the litigation privilege.” We disagree with
both assertions.
1. The Complaint to the CFP Board
a. The background
On April 11, 2014, Leslie Gould submitted a “Complaint
Against a CFP® Professional” to the CFP Board.
The CFP Board, founded in 1985, describes itself as a “non-
profit organization that serves the public interest by promoting
the value of professional, competent and ethical financial
planning services, as represented by those who have attained
CFP® certification.” The CFP Board “sets and enforces the
requirements for CFP® certification,” and “[i]ndividuals who
successfully complete CFP Board’s initial and ongoing
certification requirements are authorized to use the CFP®
certification marks in the United States.”
According to the CFP Board, its “rigorous enforcement of
its Standards of Professional Conduct – including releasing
disciplinary information to the public – distinguishes the CFP®
certification from the many other designations in the financial
services industry.” “[A] CFP® professional who violates CFP
Board’s ethical and practice standards becomes subject to
9
disciplinary action up to the permanent revocation of
certification.”
In his complaint to the CFP Board against cross-
complainant (who is certified by the CFP Board as a CFP®
professional), Leslie Gould complained of “embezzlement, elder
abuse, co-mingling funds, breach of fiduciary duty, perjury, [and]
filing false documents in court of law,” and stated that “the funds
[cross-complainant] embezzled he is now claiming to be fees he
earned.”
b. Contentions and conclusions
Cross-defendants first contend the complaint to the CFP
Board was protected activity under the anti-SLAPP statute, as a
statement made before, or made in connection with an issue
under consideration or review by, an “official proceeding
authorized by law.” (§ 425.16, subd. (e)(1)&(2).) We disagree.
It is clear from the CFP Board’s own description of its
organization and activities that it is merely a privately organized
group that promotes competent and ethical services in the
financial planning industry. While that is a laudable objective
that may be helpful to the public, it is not enough to transform its
private certification and enforcement processes into an “official
proceeding authorized by law.” The authorities that have
considered the meaning of the term “official proceeding
authorized by law” make the point quite plain – including the
case cross-defendants say supports their claim that a complaint
to the CFP Board “should be deemed a quasi judicial public
agency proceeding.”
In Kibler v. Northern Inyo County Local Hospital District
(2006) 39 Cal. 4th 192 (Kibler), the Supreme Court held that “a
hospital’s peer review qualifies as ‘any other official proceeding
10
authorized by law’ under subparagraph (2) of subdivision (e) and
thus a lawsuit arising out of a peer review proceeding is subject
to a special motion under section 425.16 to strike the SLAPP
suit.” (Id. at p. 198.) The court rejected arguments that
subdivision (e)(2) pertained only to proceedings before
governmental entities. (Kibler, at pp. 201-203.) But the court
clearly explained why a hospital’s peer review procedure qualified
as an “official proceeding authorized by law,” namely: “because
that procedure is required under Business and Professions Code
section 805 et seq., governing hospital peer review proceedings.”
(Id. at p. 199; see ibid. [the Code “sets out a comprehensive
scheme that incorporates the peer review process into the overall
process for the licensure of California physicians”].)
In addition, Kibler pointed out “another attribute of
hospital peer review that supports our conclusion,” which was
that “[a] hospital’s decisions resulting from peer review
proceedings are subject to judicial review by administrative
mandate.” (Kibler, supra, 39 Cal.4th at p. 200; see ibid. [“Thus,
the Legislature has accorded a hospital’s peer review decision a
status comparable to that of quasi-judicial public agencies whose
decisions likewise are reviewable by administrative mandate.”].)
The CFP Board, and its procedures for investigating
complaints, possess none of the attributes of an “official
proceeding authorized by law.” The CFP Board is not a
government entity; it is not related in any way to a government
entity; its procedures are not required by law; and its decisions
are not subject to judicial review by administrative mandate.
Accordingly, cross-defendants’ complaint to the CFP Board is not
protected activity, because it is not a statement made before, or
made in connection with an issue under consideration or review
11
by, an “official proceeding authorized by law.” (§ 425.16,
subd. (e)(1)&(2).)
Cross-defendants next contend the CFP Board complaint is
protected activity under subdivision (e)(3) of section 425.16. That
subdivision protects statements and writings “made in a place
open to the public or a public forum in connection with an issue of
public interest.” Cross-defendants contend that “[w]ebsites that
are accessible to the public are ‘public forums’ for purposes of the
anti-SLAPP statute,” citing Barrett v. Rosenthal (2006) 40
Cal. 4th 33 (Barrett). Cross-defendants misunderstand the import
of Barrett, which has no application to the facts in this case.
In Barrett, the court observed that “[w]eb sites accessible to
the public, like the ‘newsgroups’ where [the defendant] posted [her
codefendant’s] statement, are ‘public forums’ for purposes of the
anti-SLAPP statute.” (Barrett, supra, 40 Cal.4th at p. 41, fn. 4,
italics added, citing cases; see, e.g., ComputerXpress, Inc. v.
Jackson (2001) 93 Cal. App. 4th 993, 1007 [two websites satisfied
the criteria for a public forum as “ ‘a place that is open to the
public where information is freely exchanged’ ”; one website had
“ ‘chat-rooms . . . open and free to anyone who wants to read the
messages,’ ” with free membership entitling the member to post
messages; the other website was “a forum where members of the
public may read the views and information posted, and post on
the site their own opinions” (italics added)].)
While the CFP Board’s website was certainly accessible to
the public, cross-defendants’ complaint was not made on the
website (nor did it involve an issue of public interest, as we
discuss post). Cross-defendants did not use the website to file
their complaint (nor, apparently, was it possible to do so). The
complaint form is hand-written, and on its face instructs the
12
person complaining to fax or mail it to the CFP Board. And the
“CFP Board’s Investigation Process” that Leslie Gould received
from the CFP Board states that “[a]ll CFP Board investigations
are confidential unless and until a public discipline is issued by
CFP Board . . . .”
In short, statements are protected under subdivision (e)(3)
of section 425.16 when they are “made in a place open to the
public or a public forum.” Submitting a complaint to an
organization does not become protected activity simply because
that organization has a website. Cross-defendants’ complaint to
the CFP Board had nothing to do with the use of its website as a
public forum, and cross-defendants’ claim of protected activity on
this basis is simply inapt.
Finally, cross-defendants contend their complaint was
protected activity under subdivision (e)(4) of section 425.16. That
subdivision protects “any other conduct” in furtherance of the
rights of petition or free speech “in connection with a public issue
or an issue of public interest.” Subdivision (e)(4) does not apply
either, because cross-defendants’ complaint accusing cross-
complainant of embezzlement, elder abuse, perjury, and so on, is
of interest only to the parties, not to the public.
Both subdivisions (e)(3) and (e)(4) of section 425.16 “are
limited by the requirement that the statement or conduct be
connected with an issue of public interest . . . .” (Wilbanks v.
Wolk (2004) 121 Cal. App. 4th 883, 898.) “ ‘The most commonly
articulated definitions of “statements made in connection with a
public issue” focus on whether (1) the subject of the statement or
activity precipitating the claim was a person or entity in the
public eye; (2) the statement or activity precipitating the claim
involved conduct that could affect large numbers of people beyond
13
the direct participants; and (3) whether the statement or activity
precipitating the claim involved a topic of widespread public
interest.’ ” (Greco v. Greco (2016) 2 Cal.App.5th 810, 824 (Greco).)
Cross-defendants apparently contend the subject matter of their
complaint could affect “ ‘large numbers of people beyond the
direct participants’ ” (ibid.), because of cross-complainant’s
conduct “handling the investments of many individuals including
elders,” and “the chance for elder abuse, fraud, and conversion of
funds is a matter of public interest . . . .”
We reject the notion that “the chance” for elder abuse and
fraud by a financial planner, without more, can transform a
single claim of elder abuse and embezzlement into an issue of
public interest. The case cross-defendants cite to support that
notion does not do so.
In Fontani v. Wells Fargo Investments, LLC (2005) 129
Cal. App. 4th 719 (Fontani), disapproved on other grounds in
Kibler, supra, 39 Cal.4th at page 203, footnote 5, the matter at
issue was the defendant’s statement to the National Association
of Securities Dealers (NASD), of which the defendant was a
member, alleging the plaintiff (who had been the defendant’s
employee) “misrepresented information when selling annuities.”
(Fontani, at p. 732.) The court found the plaintiff’s alleged
misrepresentation was “conduct with the potential to affect not
just [the plaintiff’s] individual customers, but all those in the
annuity market,” observing that “mistruths about an annuity
may artificially inflate the purchase price and thereafter affect
the market.” (Id. at p. 733.) Thus the defendant’s statement to
the NASD “concerning [the plaintiff’s] purported misconduct . . .
concern[ed] a matter of public interest under section 425.16,
subdivision (e)(4).” (Ibid.)
14
This is not a case like Fontani, and cross-defendants
submitted no evidence to suggest any questionable conduct by
cross-complainant other than his handling of the financial affairs
of the elder Goulds. The “chance” of misconduct toward others is
completely speculative. We see no basis to conclude the conduct
that is the subject of cross-defendants’ complaint to the CFP
Board is “ ‘conduct that could affect large numbers of people
beyond the direct participants.’ ” (Greco, supra, 2 Cal.App.5th at
p. 824; see Rivero v. American Federation of State, County and
Municipal Employees, AFL-CIO (2003) 105 Cal. App. 4th 913, 924
[the defendant union’s distribution of documents, containing
allegedly false information criticizing the plaintiff’s treatment of
eight employees he supervised, did not concern a matter of public
interest; “the only individuals directly involved in and affected by
the situation” were the plaintiff and the eight employees]; id. at
p. 925 [rejecting the attempt “to portray the situation . . . as
affecting more than the eight individuals” and as “relat[ing] to
. . . the broader issue of abusive supervision throughout the
University of California system”].)
In sum, the trial court did not err in concluding the
complaint to the CFP Board was not protected activity.
2. The Reports of Alleged Wrongdoing to
AXA
Cross-defendants contend several of their communications
to AXA, reporting cross-complainant’s alleged wrongdoing, were
prelitigation communications that were “absolutely privileged”
under Civil Code section 47, subdivision (b)4 and the anti-SLAPP
4 “A privileged publication or broadcast is one made: . . . [¶]
. . . [¶] (b) In any (1) legislative proceeding, (2) judicial
proceeding, (3) in any other official proceeding authorized by law,
15
statute. We agree with the trial court that the litigation privilege
does not protect the communications in question.
We first describe the applicable legal principles and then
the communications at issue in this case.
a. The anti-SLAPP statute and
the litigation privilege
The relationship between the anti-SLAPP statute and the
litigation privilege is described in Flatley v. Mauro (2006) 39
Cal. 4th 299, 322-324 (Flatley). Courts “have looked to the
litigation privilege as an aid in construing the scope of section
425.16, subdivision (e)(1) and (2) with respect to the first step of
the two-step anti-SLAPP inquiry—that is, by examining the
scope of the litigation privilege to determine whether a given
communication falls within the ambit of subdivision (e)(1) and
(2).” (Id. at pp. 322-323.) And, “[t]he litigation privilege is also
relevant to the second step in the anti-SLAPP analysis in that it
may present a substantive defense a plaintiff must overcome to
demonstrate a probability of prevailing. (See, e.g., Kashian v.
Harriman (2002) 98 Cal. App. 4th 892, 926-927 [where the
plaintiff’s defamation action was barred by Civil Code section 47,
subdivision (b), the plaintiff cannot demonstrate a probability of
prevailing under the anti-SLAPP statute] . . . .)” (Flatley, at
p. 323.)
In this case, whether analyzed under the first or second
step, the result is the same. The litigation privilege does not
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 [(writ of mandate)],” with exceptions not
applicable here. (Civ. Code, § 47, subd. (b).)
16
apply, so the trial court’s refusal to strike the allegations in
question was correct.
b. The litigation privilege
The litigation privilege “precludes liability arising from a
publication or broadcast made in a judicial proceeding or other
official proceeding.” (Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal. App. 4th 1153, 1172.) Under the usual formulation
of the privilege, it 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 have some connection or logical relation to
the action.” (Silberg v. Anderson (1990) 50 Cal. 3d 205, 212
(Silberg).) Silberg emphasizes that, to be protected by the
litigation privilege, a communication must be “in furtherance of
the objects of the litigation.” (Id. at p. 219.) This is “part of the
requirement that the communication be connected with, or have
some logical relation to, the action, i.e., that it not be extraneous
to the action.” (Id. at pp. 219-220.)
“Many cases have explained that [Civil Code] section 47(b)
encompasses not only testimony in court and statements made in
pleadings, but also statements made prior to the filing of a
lawsuit, whether in preparation for anticipated litigation or to
investigate the feasibility of filing a lawsuit.” (Hagberg v.
California Federal Bank (2004) 32 Cal. 4th 350, 361.) “A
prelitigation communication is privileged only when it relates to
litigation that is contemplated in good faith and under serious
consideration.” (Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal. 4th 1232, 1251 (Action Apartment), citing
cases; see also Olsen v. Harbison (2010) 191 Cal. App. 4th 325,
334-335 [“The litigation privilege attaches to prelitigation
17
communications that are made at the point that ‘imminent access
to the courts is seriously proposed by a party in good faith for the
purpose of resolving a dispute . . . .’ ”].)
“Whether a prelitigation communication relates to
litigation that is contemplated in good faith and under serious
consideration is an issue of fact.” (Action Apartment, supra, 41
Cal.4th at p. 1251.)
c. The communications in this case
The communications at issue in this case and relevant
chronology are as follows.
On August 25, 2013, Leslie Gould “reported to AXA, who I
believed to be the employer of [cross-complainant] at all times
stated herein, using their dedicated ‘fraud’ email
(ReportFraud@axa-equitable.com) what I believed to be the
wrongdoing of [cross-complainant] in connection with my
parents.” The email, sent by Susan Gould at Leslie Gould’s
direction, stated:
“You should be aware that one of your employee[s] has
performed illegal actions. [¶] We recently discovered that [cross-
complainant] has embezzled approximately 6 figures of funds
from our now deceased parents and committed numerous
instances of financial elder abuse. [¶] His actions have been
deliberate, intentional and show an ongoing and malicious
pattern of his breach of fiduciary responsibility.” The email
described the background facts and types of illicit behavior, such
as “electronic transfers going to [cross-complainant’s] various
credit cards,” “false receipts,” a “completely bogus” accounting,
and concluded: “A plethora of other issues are also in play, all
demonstrating [cross-complainant’s] deliberate financial
manipulations of our elderly parents’ assets, both pre and post
18
death. The offenses are widespread and span several years. The
examples cited above are just a few. All examples are supported
with back-up documents. [¶] Please contact me anytime and we
can meet and I can give you documentation. In the meantime, we
have contacted FINRA, the DA and the FBI.”
On February 10, 2014, five and one-half months later,
Susan Gould on behalf of cross-defendants emailed AXA (Andrew
Ziskin and Wendy Pontrelli), stating that: “I still see that as of
today, [cross-complainant] is listed as ‘my financial professional’.
Please remove him immediately. [¶] Please let me know who at
AXA I should follow up with regarding employee dishonesty. I
have included this message to Wendy who we notified of [cross-
complainant’s] previous fraudulent activities.” Cross-defendants
repeated their earlier assertions about cross-complainant’s
various “nefarious actions,” and stated they had “reason to
believe that he may have taken out a life insurance policy (again,
with Gould money) on either Donna or Danny Gould, for which he
had absolutely no insurable interest. Please look into these
matters.”
The February 10, 2014 email also stated that “3 AXA
annuities are still paying into a Gould Living Trust bank
account”; that cross-complainant had refused to resign as trustee;
and that: “We have filed a lawsuit seeking [cross-complainant’s]
removal as trustee, but he is using estate money to fight it while
he crafts back-dated ‘faux’ letters trying to extricate himself from
the lies he has been caught in. I would like to request that the
annuities stop being deposited into the account and that AXA
holds the money until this matter is resolved. [Cross-
complainant] should have business insurance, so we are
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requesting a copy of his policy. [¶] Thanks for your assistance
and anticipated cooperation.”5
On February 11, 2014, cross-defendants emailed AXA
again, saying: “Please let us know how we can assist you. We
have copious documentation demonstrating his fraud, elder
abuse, and embezzlement.” (That same day, AXA assured cross-
defendants “that [cross-complainant] no longer has access to your
accounts and can no longer view account status.”)
On July 22, 2014 (11 months after the August 2013 email
and five months after the February 2014 email), Leslie Gould
filed a lawsuit against cross-complainant, AXA and several AXA-
related entities, alleging 10 causes of action, including various
claims of fraud, unfair business practices, breach of fiduciary
duty, negligence, elder abuse, conversion, and an accounting.
(Those claims have been settled.)
d. Contentions and conclusions
Cross-defendants contend the trial court should have
granted the anti-SLAPP motion, to the extent cross-
complainant’s claims were based on the communications to AXA
we have just described. The substance of cross-defendants’
argument is that the same allegations of misconduct they
communicated to AXA in August 2013 and February 2014 later
5 The lawsuit to which cross-defendants referred was a
“Petition for Redress for Breach of Trust” filed on December 20,
2013, in the pending probate proceeding (In the Matter of The
Gould Living Trust, BP133880), shortly after cross-complainant
filed a final accounting. The petition describes cross-
complainant’s alleged misappropriation of funds and sought an
order removing him as trustee, a monetary surcharge and
punitive damages.
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appear in two lawsuits: first in Leslie Gould’s December 2013
petition to the probate court to remove cross-complainant as
trustee of the Gould Living Trust, and then in their July 2014
lawsuit against AXA and cross-complainant. Cross-defendants
assert the communications in question therefore “have some
connection or logical relation to” both the probate petition and the
lawsuit and so are absolutely privileged.
We do not agree. The law requires more than “some
connection or logical relation” to a later lawsuit. The
communications must be made “to achieve the objects of the
litigation” (Silberg, supra, 50 Cal.3d at p. 212), and prelitigation
communications must be made at a time when litigation is
“under serious consideration” (Action Apartment, supra, 41
Cal.4th at p. 1251). Cross-defendants’ evidence fails both these
tests.
First, none of the communications contains any suggestion
that cross-defendants were contemplating a lawsuit against AXA.
There is no threat of suit, no demand of any kind, no warning of
possible litigation – literally nothing to suggest that litigation
against AXA (or cross-complainant) was “under serious
consideration.” (Action Apartment, supra, 41 Cal.4th at p. 1251.)
Cross-defendants merely reported cross-complainant’s alleged
wrongdoing and their contacts with “FINRA, the DA and the
FBI”; said that “we can meet and I can give you documentation”;
asked AXA to “[p]lease look into these matters”; and thanked
AXA “for your assistance and anticipated cooperation.”
Second, cross-defendants’ declarations in support of the
anti-SLAPP motion are likewise devoid of any statement that, at
the time they communicated with AXA in August 2013 and
February 2014, they were seriously considering filing the lawsuit
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they ultimately filed in July 2014. Leslie Gould states only that:
“Following my reporting of suspected fraud by [cross-
complainant], I was never interviewed (nor was my wife) and I
never heard anything further from AXA. I then decided to file
the within action in July, 2014.”
Third, so far as the probate proceeding is concerned, the
communications to AXA could do nothing to further the objects of
the litigation, which had nothing to do with AXA. Those
communications were entirely “extraneous to the action” (Silberg,
supra, 50 Cal.3d at p. 220), and accordingly not protected by the
litigation privilege.
In short, like the trial court, we see no evidence the
communications at issue were “in furtherance of the objects of the
litigation” ultimately filed or that they related to litigation that
was under serious consideration when the communications were
made. (Action Apartment, supra, 41 Cal.4th at p. 1251; Silberg,
supra, 50 Cal.3d at p. 219; see also Edwards v. Centex Real Estate
Corp. (1997) 53 Cal. App. 4th 15, 34-35, 36 [for the litigation
privilege to attach to prelitigation statements, “a lawsuit or some
other form of proceeding must actually be suggested or proposed,”
and “the contemplated litigation must be imminent” and “not a
‘bare possibility’ ”; “the privilege attaches at that point in time
that imminent access to the courts is seriously proposed by a
party in good faith for the purpose of resolving a dispute”].)
Here, the communications at issue did not suggest or
propose litigation. “[I]n order to take advantage of the litigation
privilege, respondents must establish that . . . they . . . seriously
and in good faith proposed imminent access to the courts as a
means of resolving their dispute.” (Eisenberg v. Alameda
Newspapers, Inc. (1999) 74 Cal. App. 4th 1359, 1381.) That did not
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happen here. The litigation privilege did not apply, and the trial
court did not err.
DISPOSITION
The order is affirmed. Cross-complainant shall recover his
costs on appeal.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
ROGAN, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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