LaPierre v. Columbia Casualty Co. CA3 ( 2021 )

Filed 1/27/21 LaPierre v. Columbia Casualty Co. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
MAUREEN LAPIERRE, C087812
Plaintiff and Appellant, (Super. Ct. No. 34-2018-
00227816-CU-NP-GDS)
v.
COLUMBIA CASUALTY COMPANY et al.,
Defendants and Respondents.
This appeal follows a constellation of actions that began with a medical
malpractice action brought by Maureen LaPierre against Efrain Gonzalez, M.D.
(LaPierre v. Low McKinley Baleria & Salenko, LLP, et al. (Dec. 20, 2018, C083171)
[nonpub. opn.] (LaPierre I).)1 In a subsequent criminal action, Gonzalez pleaded no
contest to three criminal offenses arising from various surgical procedures not related to
1 The request for judicial notice filed by Thomas Garberson and Paul Baleria to take
notice of this court’s prior decision is granted. (Evid. Code, §§ 452, subd. (d), 459.)
1
the medical procedure he performed on LaPierre. After LaPierre picketed against
Gonzalez outside his residential gated community, he filed a civil harassment action
against LaPierre. LaPierre responded with a successful anti-SLAPP motion under Code
of Civil Procedure section 425.16.2 LaPierre then filed a new action based on the anti-
SLAPPback statute (§ 425.18) against Gonzalez and Low McKinley Baleria & Salenko,
LLP (LMBS), the law firm that represented Gonzalez in the original medical malpractice
action. Gonzalez and LMBS responded with their own anti-SLAPPback motion that was
granted by the trial court. LaPierre appealed. In LaPierre I, this court held LaPierre’s
claims against Gonzalez and LMBS arose out of protected activity, but she failed to
demonstrate a probability of prevailing on the merits. (LaPierre I, supra, C083171.)
While the appeal was pending in LaPierre I, LaPierre filed a new action against
Thomas Garberson and Paul Baleria (who are partners of the LMBS law firm), and
against Columbia Casualty Company (Columbia).3 Defendants filed an anti-SLAPP
motion to LaPierre’s claims on grounds that all allegations in her operative complaint
arose out of protected activity and were subject to the litigation privilege of Civil Code
section 47. The trial court granted the anti-SLAPP motion as to the claims for intentional
infliction of emotional distress and fraud, but denied the motion as to the claim for breach
of contract.
2 Undesignated statutory references are to the Code of Civil Procedure.
3 Columbia was erroneously sued as CNA Insurance. Columbia provided the
insurance under which Gonzalez received legal representation in LaPierre’s medical
malpractice action. Columbia was not a party to that medical malpractice action.
We refer to Garberson, Baleria, and Columbia collectively as the defendants.
2
As best we can discern, LaPierre argues on appeal that (1) defendants’4 illegal
conduct was unprotected by the anti-SLAPP statute, (2) defendants engaged in undue
influence by coercing her to sign a settlement agreement in her medical malpractice case,
(3) defendants suborned perjury of their own expert witness, (4) defendants wrongfully
rejected two offers to compromise within insurance policy limits, (5) defendants sent her
an extortionate demand letter, (6) she was defamed by defendants, (7) defendants made
false police reports about her, (8) defendants perjured themselves, (9) defendants
breached an implied covenant of good faith and fair dealing by filing an action they did
not believe was legally tenable, (10) defendants violated Insurance Code section 790.03,
subdivision (h)(5), by not settling the case in good faith, (11) defendants engaged in fraud
through perjury, (12) “Civil Code [section] 47 states a statutory privilege not a
constitution[al] protection,” and (13) defendants engaged in extreme and outrageous
conduct warranting the claim of intentional infliction of emotional distress.
We take a step back from this litany of arguments to note that the only question we
need to resolve in this appeal is whether the trial court erred in granting the defendants’
anti-SLAPP motions. To demonstrate reversible error, LaPierre must show the claims in
the complaint did not arise out of protected activity or if the claims did arise out of
protected activity, she has a probability of prevailing on the merits. We conclude
LaPierre does not meet her burden to establish the complained of conduct did not arise
out of protected activity. And she makes no attempt to demonstrate a probability of
prevailing on the merits. Accordingly, we affirm.
4 In its order, the trial court noted that “[i]t is unclear from the [operative complaint]
whether the causes of action are asserted against all or only some of the name[d]
defendants as [LaPierre] uses the term ‘Defendants’ generally.” Similarly, LaPierre’s
arguments on appeal refer generally to the defendants with little or no distinction between
them.
3
BACKGROUND
The California Rules of Court require that an appellant’s opening brief “[p]rovide
a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court,
rule 8.204(a)(2)(C).) This means, “[i]n every appeal, ‘the appellant has the duty to fairly
summarize all of the facts in the light most favorable to the judgment. [Citation.]
Further, the burden to provide a fair summary of the evidence “grows with the
complexity of the record.” ’ ” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th
735, 739, quoting Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.)
LaPierre’s opening brief does not contain the required statement of the facts.
Moreover, as Garberson and Baleria point out, the 39-page opening brief contains only
13 cites to the record. As we explain in part VI, LaPierre’s lack of support for her
arguments by references to the appellate record forfeits a substantial number of her
arguments. Nonetheless, we recount the following background of this case to provide the
context for LaPierre’s arguments on appeal.
In March 2018, LaPierre filed a first amended complaint (the operative complaint)
in which she asserted claims for breach of contract, intentional infliction of emotional
distress, and fraud. The operative complaint focused on defendants’ conduct in providing
legal representation in a medical malpractice action, bankruptcy proceedings, arbitration,
and a mediation. The breach of contract claim alleged that she had been compelled to
“sign an over-broad release that included claims that had nothing do with the case at
hand, [and] that was so broad that it goes against public policy and state statute.” The
breach of contract claim alleges failure to pay some portion of the agreed-upon settlement
amount.
The operative complaint also alleged “10 counts” of intentional infliction of
emotional distress resulting from defendant’s proffering an overbroad release, suborning
perjury of an expert witness, rejecting offers to compromise, “threatening to defame her
to the arbitrator of the pending medical malpractice case,” actually defaming her to the
4
arbitrator, filing a “legally untenable” request for temporary restraining order, “perjuring
themselves in their own self serving declaration on ‘information and belief,’ ” filing a
“legally untenable” anti-SLAPP motion and bringing other motions in litigation, violating
Insurance Code section 790.03 by failing to negotiate in good faith, and making
defamatory statements to another attorney and to the Rocklin Police Department.
LaPierre also alleged a cause of action for fraud based on allegations that defendants
made perjured statements in connection with litigation.
Baleria and Garberson responded by filing an anti-SLAPP motion in which they
argued the operative complaint’s allegations related to protected activity in connection
with their role in representing LaPierre’s former doctor. Baleria and Garberson further
argued LaPierre could not establish a probability of prevailing on the merits.
LaPierre opposed the anti-SLAPP motion, arguing that the defendants’ conduct
did not implicate protected activity “ ‘in connection with a public issue’ ” and consisted
of enumerated illegal acts that were not the subject to the litigation privilege.
Columbia filed its own anti-SLAPP motion. Columbia argued that many of the
acts alleged in the operative complaint related to Baleria and Garberson only. The
insurance company further argued that LaPierre released all her claims relating to the
medical malpractice action and she lacked standing to bring claims alleging bad faith
settlement tactics.
LaPierre filed an opposition that seemed to respond to Columbia’s anti-SLAPP
motion. LaPierre argued she was not bound by the release and that her operative
complaint did not relate to actions protected by the litigation privilege.
The trial court granted the anti-SLAPP motions as to LaPierre’s claims for
intentional infliction of emotional distress and fraud but denied the motion as to her claim
for breach of contract. In granting the anti-SLAPP motions in part, the trial court found
that “the allegations supporting these causes of action arise out of acts in furtherance of
Defendants’ right to petition as the allegations are substantially based on Defendants’
5
statements and actions taken in connection with the arbitration, mediation, and litigation
in which they were involved in with Plaintiff.”
The trial court explained that “[b]ecause the communications are absolutely
privileged pursuant to Civil Code 47[, subdivision] (b), [LaPierre] cannot meet her
burden to show the elements of a prima facie case. [LaPierre] cannot demonstrate by
admissible evidence that the [operative complaint] is: (1) legally sufficient; and (2)
supported by facts sufficient to sustain a favorable judgment if the evidence submitted is
credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; Navel[l]ier
v. Sletten (2002) 29 Cal.4th 82, 89, 93; Ludwig v. Superior Court (1995) 37 Cal.App.4th
8, 15.) Further, [LaPierre] has not presented any argument as to her probability of
prevailing on her claims, which is another basis upon which the Court finds she cannot
meet her burden. [LaPierre’s] opposition only addresses the first prong of the analysis -
whether the alleged activity is protected.”
LaPierre timely filed a notice of appeal from the trial court’s order granting the
anti-SLAPP motion in part.5
DISCUSSION
I
The Anti-SLAPP Statute
In enacting the anti-SLAPP statute, the Legislature sought to discourage “lawsuits
brought primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) To this end,
section 425.16 provides, in relevant part: “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or free speech
5 An order granting an anti-SLAPP motion as to fewer than all causes of action is an
appealable order. (§ 425.16, subd. (i); City of Costa Mesa v. D’Alessio Investments, LLC
(2013) 214 Cal.App.4th 358, 364-365, 371.)
6
under the United States Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)
In determining whether the anti-SLAPP statute applies to a claim, courts engage in
a two-step analysis. “ ‘ “First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected
activity. . . . If the court finds such a showing has been made, it then determines whether
the plaintiff has demonstrated a probability of prevailing on the claim.” ’ (Taus v. Loftus
(2007) 40 Cal.4th 683, 712, ellipsis in original, quoting Equilon Enterprises, LLC v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) ‘ “ ‘The defendant has the
burden on the first issue, the threshold issue; the plaintiff has the burden on the second
issue. [Citation.]’ [Citation.]” [Citations.] “Only a cause of action that satisfies both
prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning
and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.”
[Citation.]’ (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449, 456.) Our review of the denial of a motion to strike under the anti-
SLAPP statute is de novo.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 34-35.)
II
Suborning Perjury
LaPierre argues that “[t]he Defendants committed a crime by suborning the
perjury of their own expert medical witness Dr. Goodman, in their Motion for Summary
Judgment” in the medical malpractice case. The argument represents a five-page factual
attack on Dr. Goodman’s medical opinion in an attempt to prove defendants in this case
suborned perjury. Other than a citation of the first page of Dr. Goodman’s declaration,
LaPierre’s argument is bereft of any references to the appellate record.
7
For purposes of the anti-SLAPP statute, it is well settled that “[a] claim arises
from protected activity when that activity underlies or forms the basis for the claim.”
(Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)
Here, the production of Dr. Goodman’s declaration for defense of a medical malpractice
action constitutes protected activity. (See id. at p. 1062.) The introduction of the
declaration in a prior action related directly to the right of petition and is subject to the
anti-SLAPP statute.
Even if Dr. Goodman’s declaration were false, this would not establish that
defendants’ conduct fell outside the realm of protected activity under the anti-SLAPP
statute. The California Supreme Court has held that “[i]f . . . a factual dispute exists
about the legitimacy of the defendant’s conduct,” such dispute “cannot be resolved within
the first step [of an anti-SLAPP analysis], but must be raised by the plaintiff in
connection with the plaintiff’s burden to show a probability of prevailing on the merits.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 316, italics added (Flatley).) LaPierre,
however, does not attempt to demonstrate a probability of prevailing on the merits for her
claim of suborning perjury. In any event, such an attempt would fail because “our
Supreme Court long ago ruled that injurious perjury and suborning such perjury cannot
be the basis of a civil action.” (Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915, citing
Taylor v. Bidwell (1884) 65 Cal. 489, 490.) LaPierre has not met her burden to show her
claim of suborning perjury was erroneously stricken by the trial court under section
425.16.
III
Extortion
As in LaPierre I (LaPierre I, supra, C083171), LaPierre argues the anti-SLAPP
statute does not apply to bar a claim based on an e-mail she claims constituted the illegal
act of extortion and violated defendants’ obligations under the State Bar Rules of
8
Professional Conduct, former rule 5-100(A).6 LaPierre’s argument is founded on an e-
mail Baleria sent to her in which he stated: “Ms. LaPierre, it has come to my attention
that you were picketing outside Dr. Gonzalez’ neighborhood yesterday. Please refrain
from doing so again as such behavior constitutes harassment of Dr. Gonzalez and his
family. [¶] If you continue to harass Dr. Gonzalez and his family, this matter will be
brought to the attention of the arbitrator in this case. Further, Dr. Gonzalez will consider
all legal remedies available to him.”
In LaPierre I, this court analyzed the same argument about the same e-mail as
follows: “LaPierre argues . . . that the cease and desist letter constituted extortion as a
matter of law. ‘Extortion is the obtaining of property or other consideration from
another, with his or her consent . . . induced by a wrongful use of force or fear.’ (Pen.
Code, § 518, subd. (a).) On its face, the cease and desist letter only threatens litigation in
the event that LaPierre continued to ‘harass’ Gonzalez. The cease and desist letter does
not make any demand for money or property, and nothing in LaPierre’s declarations or
documentary evidence suggests that anyone said anything to lead LaPierre to believe that
the letter should be understood to make such a demand. (Cf. Flatley, supra, 39 Cal.4th at
p. 332 [noting that ‘any doubt as to [the] extortionate character of [the defendant’s
demand] letter’ was dispelled by evidence of telephone calls in which the defendant set
deadlines for payment].)” (LaPierre I, supra, C083171 [p. 18].)
As part of the analysis of LaPierre’s extortion claim in LaPierre I, this court
rejected her reliance on Rules of Professional Conduct, rule 5-100(A). This court
6 Rules of Professional Conduct, rule 5-100(A) has been renumbered as rule 3.10(a),
without substantive change. Rule 3.10(a) provides, “A lawyer shall not threaten to
present criminal, administrative, or disciplinary charges to obtain an advantage in a civil
dispute.” (Cf. J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 15, fn.
12.) Because our prior opinion referred to rule 5-100(A) and there has been no
substantive change, this opinion refers to rule 5-100(A) for the sake of consistency and
convenience.
9
explained, “LaPierre also argues the cease and desist letter amounts to a violation of rule
5-100(A), which provides: ‘A member shall not threaten to present criminal,
administrative, or disciplinary charges to obtain an advantage in a civil dispute.’ Rule 5-
100(A) has no obvious application here. The cease and desist letter does not threaten
criminal, administrative or disciplinary charges. The letter threatens civil litigation to
secure a civil remedy—a restraining order—and expressly refers to the applicable statute
in the Code of Civil Procedure. Nothing in the record suggests that anyone said anything
to lead LaPierre to believe the letter should be understood to threaten criminal,
administrative, or disciplinary charges. And even if the letter could be understood to do
so, LaPierre fails to explain how such a threat would have conferred an advantage on
defendants in the medical malpractice action, or any other civil dispute.” (LaPierre I,
supra, C083171 [p. 19].)
Although this court’s decision in LaPierre I involved LMBS, the reasoning applies
equally to this case. Consequently, we reject LaPierre’s argument that the e-mail
constituted the illegal act of extortion or a violation of the Rules of Professional Conduct
in a manner that would remove the communication from the purview of the anti-SLAPP
statute.
IV
False Police Reports
Under the heading of “Count Six-SLAPP Action,” LaPierre asserts that
“defendants conspired to bring false police reports stating that [she] was engaged in
illegal activity (harassing, obstructing, yelling, stalking, aggressively running up to
neighbors and Gonzalez) . . . .” The second part of the discussion under this heading
involves LaPierre’s assertion that “[w]hen the false police reports did not work the
Defendants filed an action in the form of a TRO/Injunction on February 2016.” LaPierre
concludes that “[t]heir conduct was reprehensible.”
10
We discern no legal argument in LaPierre’s factual assertions. In the discussion
regarding “Count Six” LaPierre does not develop an argument about how the trial court
might have erred by granting the anti-SLAPP motion. “We are not required to examine
undeveloped claims or to supply arguments for the litigants.” (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52.) Self-represented litigants are held to the
same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536,
543.) The “failure of appellant to advance any pertinent or intelligible legal argument . . .
constitute[s] an abandonment of the [claim of error].” (Berger v. Godden (1985) 163
Cal.App.3d 1113, 1117.) Thus, a self-represented litigant is “treated like any other party
and is entitled to the same, but no greater consideration than other litigants and
attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th
1200, 1210.) In the absence of developed legal argument on this issue, we deem the
contentions in this section to be forfeited.
V
Defamation
LaPierre argues she was defamed by defendants when they disclosed information
to an arbitrator. This argument is presented without citation to legal authority. To secure
a reversal, an appellant must affirmatively demonstrate error by citation to legal authority
in support of the argument. “When a point is asserted without argument and authority for
the proposition, ‘it is deemed to be without foundation and requires no discussion by the
reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408, quoting Atchley v. City
of Fresno (1984) 151 Cal.App.3d 635, 647.) As a result, this argument is deemed
forfeited.
11
VI
Arguments Forfeited for Lack of Citation to the Appellate Record
In addition to citations to legal authority, an appellant must “[s]upport any
reference to a matter in the record by a citation to the volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) When an
argument is not supported with appropriate references to the record to support an
argument on appeal, we may deem the argument forfeited. (E.g., Lonely Maiden
Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368,
384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800.)
In the absence of any citations to the appellate record, LaPierre has forfeited the
arguments that (1) “conclusive evidence of the violation of any state statute is sufficient
to trigger application of the illegality exception,” (2) defendants breached an implied
covenant of good faith and fair dealing by filing an action they did not believe was
legally tenable, (3) defendants violated Insurance Code section 790.03, subdivision
(h)(5), by not settling the case in good faith, (4) she was defamed when defendants made
statements about her in the bankruptcy case and to the Rocklin Police Department, (5)
defendants engaged in fraud through perjury, and (6) defendants engaged in extreme and
outrageous conduct warranting the claim of intentional infliction of emotional distress.
None of these arguments contains a single citation to the appellate record.
We also deem forfeited LaPierre’s argument that defendants wrongfully rejected
two offers to compromise within insurance policy limits. LaPierre asserts that
“Defendants rejected two Offers to Compromise within the policy limits with no reason
but to prolong Ms. LaPierre’s pain and suffering.” However, the single citation to the
appellate record offered in support of the argument refers to a page of witness testimony
in a prior criminal action against Gonzalez. The testimony on the cited page does not
12
relate to offers to compromise. The argument is forfeited for lack of any citation to the
record in support of LaPierre’s argument.
Likewise, we deem forfeited LaPierre’s contention that defendants “misused the
process by perjuring themselves in their own self serving declaration on ‘information and
belief.’ ” (Italics added.) Although LaPierre provides two record citations, neither
supports her assertion. The first citation refers to a minute order in which the trial court
overruled LaPierre’s objection to a declaration by Garberson. The order, however, does
not quote or discuss any part of the underlying declaration. LaPierre’s second citation is
to a declaration by Gonzalez, who is not a defendant in this action. Thus, the declaration
does not support the argument that defendants in this case perjured themselves.
We also deem forfeited LaPierre’s argument that defendants engaged in undue
influence in pressuring her to sign a settlement agreement in her medical malpractice
action against Gonzalez. The only citation offered by LaPierre in support of this
argument refers to a one-page excerpt from what appears to be a settlement agreement.
Thus, LaPierre’s factual assertions about the manner in which defendant’s engaged in
undue influence are unsupported and therefore forfeited.7
DISPOSITION
The trial court’s orders granting defendants’ anti-SLAPP motions as to Maureen
LaPierre’s causes of action for intentional infliction of emotional distress and fraud are
7 In light of our affirmance of the trial court’s order insofar as it granted the anti-
SLAPP motion, we do not need to address Columbia’s contention that LaPierre lacks
standing to assert claims against it in connection with the settlement agreement.
13
affirmed. Defendants Columbia Casualty Company, Thomas Garberson, and Paul
Baleria shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
ROBIE, J.
14