Wittenberg v. Bornstein ( 2020 )

Filed 5/19/20; Certified for Publication 6/11/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
AMY WITTENBERG,
Plaintiff and Respondent,
A154750
v.
DANIEL BORNSTEIN et al., (Alameda County Super. Ct.
No. RG17878949)
Defendants and Appellants.
Amy Wittenberg and Daniel Bornstein (Daniel)1 are the co-owners of
Hertzel Enterprises LLC (Hertzel). Yosef Peretz is an attorney who formerly
represented Hertzel and now represents Daniel. Wittenberg filed a lawsuit
asserting various causes of action, both individually and derivatively on
behalf of Hertzel, against several defendants including Daniel and Peretz.
Wittenberg alleged that Peretz breached his fiduciary duties of loyalty, care,
and confidentiality by (1) representing clients with interests adverse to those
of Hertzel; (2) using Hertzel’s confidential business information in his
representation of clients with adverse interests; and (3) conspiring with
Daniel and others to dismiss with prejudice a cross-complaint that Hertzel
had previously filed against Daniel.
1 For ease of identifying the Bornstein parties, we will refer to them by
their first names. No disrespect is intended.
Peretz filed a special motion to strike under the anti-SLAPP law (Code
Civ. Proc., 2 § 425.16 et seq.), arguing the causes of action against him arose
from protected litigation activity and lacked minimal merit. As relevant
here, the trial court declined to strike the fourth and eighteenth causes of
action for breach of fiduciary duty and conspiracy, finding they arose not out
of Peretz’s litigation conduct but his alleged breaches of his professional
obligations.
We conclude that Peretz carried his burden to show the two causes of
action arise, in part, from protected activity, and that the burden therefore
shifted to Wittenberg to show minimal merit on her claims based on the
allegation of protected activity, which she failed to do. Accordingly, we affirm
in part and reverse in part the trial court’s order on the anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
Wittenberg and Daniel are the two owners and managing members of
Hertzel, a limited liability company in the business of real estate investment.
In December 2012, Daniel retained Peretz to negotiate the return of an
escrow deposit for Hertzel’s purchase of property located at 5327 College
Avenue in Oakland (the “College Avenue property”) after Hertzel cancelled
the deal. The dispute was resolved by February 2013 when Hertzel recouped
most of its deposit.
In September 2016, Daniel initiated proceedings to dissolve Bornstein
& Bornstein (B&B), a law partnership formed in 1993 by Daniel and
Jonathan Bornstein (Jonathan), who is Daniel’s brother and Wittenberg’s ex-
husband.3 The B&B dissolution proceeding (Alameda County Superior Court
2 All further statutory references are to the Code of Civil Procedure
unless stated otherwise.
3 The B&B dissolution complaint and other court records filed in the
proceedings below were the subject of requests for judicial notice filed by both
2
case no. RG16830541; hereafter, the “541 action”) led to a slew of related
claims and cross-actions, including Wittenberg’s complaint in the separate
action here (Alameda Superior Court case no. RG17878949; hereafter, the
“949 action”). We briefly discuss the relevant pleadings in the 541 and 949
actions below.
In late September 2016, Jonathan filed a cross-complaint in the 541
action against Daniel and others alleging that Daniel improperly used his
side real estate businesses including Hertzel, Legal One Realty aka Bay
Property Group (Legal One or BPG), and 482 W. MacArthur LLC
(482 W. MacArthur) to divert money, resources, and assets away from B&B.
Also in late September 2016, Wittenberg authorized attorney Susan
Breed to file a cross-complaint for Hertzel in the 541 action, alleging that
Daniel, Legal One/BPG, and a BPG employee committed misconduct in their
management of several properties owned by Hertzel. Breed was eventually
succeeded as Hertzel’s counsel by Daniel Cravens. In March 2017, a Judicial
Council form request for dismissal was filed seeking the dismissal of Hertzel’s
cross-complaint with prejudice. Although the trial court initially entered the
dismissal with prejudice, it later granted a motion by Wittenberg, on behalf
of herself and Hertzel, to deem that the dismissal was without prejudice.
Meanwhile, Daniel filed a cross-complaint and subsequently a first
amended cross-complaint in the 541 action against Jonathan and Wittenberg
for involuntary dissolution and accounting of Hertzel. Daniel also asserted
various tort and statutory claims against Jonathan.
In October 2017, Jonathan and Wittenberg initiated the instant 949
action against Daniel, his wife Renuka Bornstein (Renuka), and
parties on appeal. We deferred consideration of these requests pending
consideration of the appeal on its merits. We now grant them. (Evid. Code,
§ 452, subd. (d).)
3
482 W. MacArthur. Their complaint named Hertzel as a nominal defendant
and asserted multiple causes of action derivatively on Hertzel’s behalf for
breaches of real property management and brokerage agreements and
related torts. In January 2018, Wittenberg4 filed a first amended complaint
(FAC), which is the pleading at issue in this appeal. The FAC added new
allegations, new causes of action, and new defendants, including attorney
Peretz.
As relevant here, the FAC alleges that Daniel cancelled Hertzel’s
purchase of the College Avenue property as part of a plan to use Hertzel’s
assets to purchase property located at 482 West MacArthur Boulevard in
Oakland (the West MacArthur property) for himself and his wife. The FAC
further alleges that Peretz participated in a conspiracy with Daniel and
others and breached his duty as an attorney to Hertzel. After the College
Avenue deal was cancelled, Daniel allegedly “converted $250,000 of funds
from Hertzel’s bank account,” used the funds to purchase the West
MacArthur property in Renuka’s name, and placed title to that property in a
company called “482 W. MacArthur,” which was solely owned and operated
by Renuka. According to the FAC, these transactions operated to defraud
Hertzel “in violation of both [Daniel’s] fiduciary duty to disclose the entire
terms of the transaction to Hertzel and Amy Wittenberg.” All of the money
used to purchase and renovate the West MacArthur property allegedly came
from Hertzel, and all revenue generated by that property was taken by
Daniel, Renuka, and Legal One and never returned to Hertzel.
The FAC asserts 20 causes of action, individually and derivatively on
behalf of Hertzel, 11 of which are brought against Peretz. These are the
fourth cause of action for breach of fiduciary duty, fifth cause of action for
4 The FAC no longer named Jonathan as a plaintiff.
4
negligent handling of legal matter, eighth cause of action for negligence per
se, ninth cause of action for fraud and deceit by misrepresentation, tenth
cause of action for fraud and deceit by concealment, eleventh cause of action
for fraud and deceit by nondisclosure of superior knowledge, fifteenth cause
of action for conversion, sixteenth cause of action for common count,
seventeenth cause of action for aiding and abetting, eighteenth cause of
action for conspiracy, and twentieth cause of action for constructive trust.5
The specific allegations against Peretz are that he acted negligently
and in breach of his fiduciary duties of loyalty, care, and confidentiality by
(1) representing clients with conflicting interests without obtaining a written
conflict waiver from Hertzel or Wittenberg; (2) utilizing Hertzel’s confidential
business information to prosecute Daniel’s dissolution and accounting claims
against Hertzel and to defend Daniel and Renuka against Hertzel’s claims;
and (3) “conspiring with Daniel Bornstein and Daniel Cravens to prepare and
file a dismissal with prejudice” of Hertzel’s cross-complaint without the
informed written consent of the client, all of which allegedly caused harm to
both Wittenberg and Hertzel.
Peretz’s Special Motion to Strike
Peretz filed an anti-SLAPP motion challenging the causes of action
against him in Wittenberg’s FAC. Peretz argued that the challenged causes
of action arose from protected petitioning activity because they involved his
litigation conduct (i.e., representing Daniel and related parties, preparing
and filing the request for dismissal of Hertzel’s cross-complaint), and that
Wittenberg could not show a likelihood of prevailing on her claims. In
5 Only the fourth, fifth, seventeenth, and eighteenth causes of action
mention Peretz by name. The eighth, ninth, tenth, eleventh, fifteenth,
sixteenth, and twentieth causes of action contain no specific allegations about
Peretz but are asserted against “all defendants.”
5
support, Peretz submitted declarations from himself and Daniel stating that
Peretz obtained no confidential business information of Hertzel during his
brief representation of Hertzel in 2012 and 2013; that Wittenberg was never
Peretz’s client; and that there was no evidence of a conspiracy to dismiss
Hertzel’s cross-complaint. According to Peretz, Wittenberg executed a
“management resolution” agreeing to dismissal of the Hertzel cross-complaint
in exchange for a $50,000 distribution from Hertzel. Peretz also averred it
was always his understanding that the parties contemplated a dismissal of
the Hertzel cross-complaint with prejudice.
In opposition, Wittenberg argued the challenged causes of action did
not arise from protected activity because the acts giving rise to Peretz’s
liability were his acceptance of employment by Daniel (a client with adverse
interests to his former client, Hertzel), and his use of Hertzel’s confidential
information against Hertzel in representing Daniel. Wittenberg further
argued that, in any event, she demonstrated a probability of prevailing on
her claims. On this score, Wittenberg submitted her declaration and the
declaration of her former attorney, Ari Lauer, in which they represented that
Wittenberg never authorized a dismissal of Hertzel’s cross-complaint with
prejudice and that she did not agree to a settlement of any claims in
exchange for the $50,000 distribution.
The trial court granted the motion in part and denied it in part. As
relevant here, the court declined to strike the fourth and eighteenth causes of
action. Specifically, the court determined that the fourth cause of action for
breach of fiduciary duty fell into an exception to the anti-SLAPP law for
claims by a client against his or her attorney for acts on that client’s behalf.
With regard to the eighteenth cause of action, the trial court concluded it
failed to specify the manner of Peretz’s participation in the alleged conspiracy
6
and was therefore “not clear whether it is based on Peretz’s litigation conduct
or something else possibly falling outside section 425.16.6
Peretz appeals these two rulings. (§ 425.16, subd. (i).)
DISCUSSION
Section 425.16 authorizes a special motion to strike claims arising from
any act “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).) The purpose of the anti-SLAPP
statute is to encourage participation in matters of public significance by
allowing defendants to request “early judicial screening” of claims targeting
free speech or petitioning activities. (Wilson v. Cable News Network, Inc.
(2019) 7 Cal. 5th 871, 887; see § 425.16, subd. (a).)
Resolution of an anti-SLAPP motion involves two steps. First, the
defendant must establish that the challenged claim arises from activity
protected by section 425.16, and if the defendant makes this showing, the
burden shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success. (Baral v. Schnitt (2016) 1 Cal. 5th 376,
384 (Baral).) On appeal, we review the trial court’s ruling on the anti-SLAPP
motion de novo. (Bernardo v. Planned Parenthood Federation of America
(2004) 115 Cal. App. 4th 322, 339.)
A. First Step—Liability Arising from Protected Activity
“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
6 The court additionally granted the anti-SLAPP motion and struck the
fifth and seventeenth causes of action. Although it declined to strike the
eighth, ninth, tenth, eleventh, fifteenth, sixteenth and twentieth causes of
action, it ultimately sustained Peretz’s demurrer to these causes of action
without leave to amend. This appeal is limited to the court’s anti-SLAPP
rulings on Wittenberg’s fourth and eighteenth causes of action.
7
University (2017) 2 Cal. 5th 1057, 1062–1063 (Park).) “[I]n ruling on an anti-
SLAPP motion, courts should consider the elements of the challenged claim
and what actions by the defendant supply those elements and consequently
form the basis for liability.” (Id. at p. 1063.)
Here, the acts which supply the requisite elements of the fourth and
eighteenth causes of action7 are as follows: Peretz accepted representation of
Daniel even though Daniel had interests adverse to Hertzel in connection
with subject matter related to Peretz’s earlier representation of Hertzel (the
College Avenue deal); Peretz used Hertzel’s confidential business information
to prosecute Daniel’s dissolution and accounting claims against Hertzel and
to defend Daniel and related parties against Hertzel’s derivative claims in
both the 541 and 949 actions; and Peretz conspired with Daniel and attorney
Cravens in preparing and filing the dismissal of the Hertzel cross-complaint
in the 541 action with prejudice.
“Filing a lawsuit is an exercise of one’s constitutional right of petition,
and statements made in connection with or in preparation of litigation are
subject to section 425.16.” (Kashian v. Harriman (2002) 98 Cal. App. 4th 892,
908.) Thus, a cause of action arising from acts committed by attorneys in
representing clients in litigation may appropriately be the subject of an anti-
SLAPP motion. (PrediWave v. Simpson Thacher & Bartlett LLP (2009)
179 Cal. App. 4th 1204, 1221 (PrediWave).) However, a client’s action against
7 The elements of a cause of action for breach of fiduciary duty/duty of
loyalty are: (1) the existence of a relationship giving rise to a fiduciary
duty/duty of loyalty; (2) one or more breaches of that duty; and (3) damage
proximately caused by that breach. (Huong Que, Inc. v. Luu (2007)
150 Cal. App. 4th 400, 410.) The elements of civil conspiracy are: (1) the
formation and operation of the conspiracy; (2) wrongful conduct in
furtherance of the conspiracy; and (3) damages arising from the wrongful
conduct. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal. App. 4th 1571,
1581.)
8
his or her attorney, whether it is pleaded as a claim for malpractice, breach of
fiduciary duty, or any other theory of recovery, is not subject to the anti-
SLAPP statute “merely because some of the allegations refer to the attorney’s
actions in court.” (Hylton v. Frank E. Rogozienski, Inc. (2009)
177 Cal. App. 4th 1264, 1275.) When the allegations referring to litigation
activity “ ‘ “are only incidental to a cause of action based essentially on
nonprotected activity, collateral allusions to protected activity should not
subject the cause of action to the anti-SLAPP statute.” ’ ” (Id. at p. 1273.)
Several pertinent cases illustrate this distinction. In Benasra v.
Mitchell Silberberg & Knupp LLP (2004) 123 Cal. App. 4th 1179 (Benasra), the
court held that the plaintiffs’ causes of action against their former attorneys
for breach of the duty of loyalty in subsequently representing a rival in
arbitration arose not from protected conduct, but from alleged violations of
the State Bar Rules of Professional Conduct prohibiting an attorney from
accepting employment adverse to a former client where, by reason of the prior
representation, the member has obtained confidential information material to
the employment. “[O]nce the attorney accepts a representation in which
confidences disclosed by a former client may benefit the new client due to the
relationship between the new matter and the old, he or she has breached a
duty of loyalty. The breach of fiduciary duty lawsuit may follow litigation
pursued against the former client, but does not arise from it.” (Id. at
p. 1189.)
Similarly, in Freeman v. Schack (2007) 154 Cal. App. 4th 719 (Freeman),
the plaintiffs sued their former attorney for breach of contract, breach of
fiduciary duty, and negligence, alleging he entered into a contract by which
he assumed attorney-client duties to plaintiffs but abandoned them to
represent adverse interests in the same and different litigation. (Id. at
9
p. 722.) Reversing the order granting the attorney’s anti-SLAPP motion, the
appellate court held that the principal thrust of the conduct underlying the
plaintiffs’ causes of action was not the attorney’s filing or settlement of
litigation, but “his undertaking to represent a party with interests adverse to
plaintiffs, in violation of the duty of loyalty he assertedly owed to them.” (Id.
at p. 732.) The attorney’s litigation-related activities, the court held, were
merely incidental to his negligence and breach of fiduciary duty. (Ibid.)
Citing Benasra and Freeman approvingly, the appellate court in
PrediWave outlined three classes of cases against attorneys relating to the
SLAPP law: (1) clients’ causes of action against attorneys based upon the
attorney’s acts on behalf of those clients; (2) clients’ causes of action against
attorneys based upon statements or conduct solely on behalf of different
clients; and (3) non-clients’ causes of action against attorneys. (PrediWave,
supra, 179 Cal.App.4th at p. 1227.) The court held that only the first
category of cases may be outside the ambit of the anti-SLAPP law. (Ibid.)
Finally, in Loanvest I, LLC v. Utrecht (2015) 235 Cal. App. 4th 496
(Loanvest), a corporate entity sued its former attorney for malpractice,
alleging he had breached his duty of loyalty to the company by taking legal
positions in a prior litigation that were intended to benefit the company’s
previous manager, who controlled the company. Relying on PrediWave and
other decisions in accord, this court held that “[w]here . . . a legal malpractice
action is brought by an attorney’s former client, claiming the attorney
breached fiduciary obligations to the client as the result of a conflict of
interest or other deficiency in the representation of the client, the action does
not threaten to chill the exercise of protected rights and the first prong of the
anti-SLAPP analysis is not satisfied.” (Id. at p. 504.)
10
As in Benasra, Freeman, and Loanvest, Peretz’s alleged acts of
representing clients with interests adverse to his former client and using
Hertzel’s confidential information in the new representation do not constitute
protected activity under the anti-SLAPP law. Such causes of action arise
from Peretz’s alleged breaches of his fiduciary and professional obligations,
not from the litigation conduct, which is merely incidental to the unprotected
conduct. There is no chilling effect on advocacy in such claims; rather, the
threat of liability encourages the attorney to act competently and loyally.
(PrediWave, supra, 179 Cal.App.4th at p. 1222; Loanvest, supra,
235 Cal.App.4th at p. 504.)
Peretz contends, nonetheless, that the derivative claims are illusory
and should be disregarded because Wittenberg fails to distinguish between
her individual injury and the injury to Hertzel, while her individual claims
fall into the third PrediWave category (nonclient claims against an attorney)
because she does not allege an attorney-client relationship with Peretz. But
whether Wittenberg sufficiently alleges a derivative claim and an attorney-
client relationship goes to the claims’ merits, which is an inquiry reserved for
the second step of the anti-SLAPP analysis. (Sprengel v. Zbylut (2015)
241 Cal. App. 4th 140, 155–157.) At the first step, we merely identify the acts
supplying the elements of the challenged causes of action (Park, supra,
2 Cal.5th at p. 1063), and to that end, it is sufficient that Wittenberg alleges
she was harmed by Peretz’s breaches of his professional obligations of loyalty
and confidentiality.
We reach a different conclusion for the particular allegation that Peretz
was involved in the preparation and filing of the request for dismissal of the
Hertzel cross-complaint. (See Baral, supra, 1 Cal.5th at pp. 393–394 [anti-
SLAPP motion can be used like conventional motion to strike to challenge
11
claims of protected conduct mixed with assertions of unprotected conduct in a
cause of action].) Wittenberg argues that this conduct falls within the first
PrediWave category (and is therefore outside the ambit of the anti-SLAPP
law) because Peretz is being sued for work he performed for his former client,
Hertzel. Peretz argues to the contrary that it falls under the second
PrediWave category because the alleged conduct was taken on behalf of a
different client, Daniel. In our view, the conduct fails to fall squarely within
either category. Peretz represented Hertzel only with reference to recouping
the College Avenue escrow deposit and no longer represented Hertzel at the
time he allegedly conspired with Daniel and Cravens to effectuate the
dismissal with prejudice of Hertzel’s cross-complaint. Yet we acknowledge
Peretz was not acting “solely” on behalf of a different client (PrediWave,
supra, 179 Cal.App.4th at p. 1227), since the dismissal directly implicated the
rights and interests of his former client.
PrediWave categories aside, we conclude the act underlying Peretz’s
liability for this particular allegation is protected litigation conduct.
Although the FAC does not specifically allege the acts that Peretz performed
in connection with the dismissal of the Hertzel cross-complaint, the parties’
evidentiary submissions provide more clarity. (See Wilson, supra,
7 Cal.5th at p. 887 [courts must look beyond pleadings to parties’ evidentiary
submissions on first anti-SLAPP step]; Salma v. Capon (2008)
161 Cal. App. 4th 1275, 1286 [citing declarations to understand whether vague
pleading described protected activity].) Wittenberg states in her declaration
that she and Lauer discussed “Peretz’s proposal to dismiss the cross-
complaint against Daniel Bornstein” during settlement talks. The dismissal
of the Hertzel cross-complaint was one of the subjects of the management
resolution “prepared by” Peretz, and Wittenberg states that after she
12
executed the resolution, Peretz “filed the dismissal with prejudice with the
court via facsimile.”8 It appears, then, that the acts upon which Peretz’s
liability is based are his statements and writings made in connection with the
dismissal of the Hertzel’s cross-complaint, which is protected conduct under
the anti-SLAPP law. (§ 425.16, subd. (e)(2) [statements and writings in
connection with judicial proceedings].)
Because the fourth and eighteenth causes of action seek relief based, in
part, on these specific allegations of Peretz’s litigation activity, the burden
shifted to Wittenberg to demonstrate the minimal merit of the challenged
causes of action to the extent they are based on protected litigation conduct.
(Baral, supra, 1 Cal.5th at pp. 393–394, 396.)
B. Second Step—Probability of Prevailing
The second step of the anti-SLAPP motion is a “ ‘summary-judgment-
like procedure’ ” (Baral, supra, 1 Cal.5th at p. 394), requiring the plaintiff to
demonstrate that the complaint is both legally sufficient and supported by a
prima facie showing of facts to sustain a favorable judgment if the plaintiff’s
evidence is credited. (Wilson v. Parker, Covert & Chidester (2002)
28 Cal. 4th 811, 821.) In conducting this inquiry as to the allegations of
Peretz’s litigation conduct, we do not weigh evidence or resolve conflicting
factual claims, and we accept the plaintiff’s evidence as true and evaluate the
defendant’s showing only to determine if it defeats the plaintiff’s claim as a
matter of law. (Baral, at pp. 384–385.) “[C]laims with the requisite minimal
merit may proceed.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 94.)
8 Although the request for dismissal form indicates on its face that it was
executed by Cravens as Hertzel’s counsel, a telephone number appearing at
the top of the form matches the number held out by Peretz in his court
filings. Peretz does not dispute his alleged involvement in the preparation
and filing of the dismissal request form.
13
Peretz argues that Wittenberg’s individual and derivative claims for
breach of fiduciary duty lack minimal merit because Hertzel ultimately
suffered no harm from the dismissal of its cross-complaint, and because
Wittenberg failed to allege and substantiate an attorney-client relationship
with Peretz. We agree.
First, as Peretz observes, the trial court’s order setting aside the
dismissal with prejudice had the effect of rendering moot any harm to Hertzel
in being temporarily deprived of its right to refile its cross-complaint.
Second, although Wittenberg alleges additional individual damages in
the form of legal fees she personally incurred to set aside the dismissal, she
has not sufficiently alleged or substantiated an attorney-client relationship
(or other fiduciary relationship) between her and Peretz to support her
individual claim for breach of fiduciary duty. Peretz establishes in his
declaration that he never represented Wittenberg as her attorney in any
matter. Wittenberg does not allege or contend otherwise.
True, Peretz briefly represented Hertzel in 2012 and 2013, and an
implied attorney-client relationship may be formed between the attorney for
a corporate entity and its individual members where, as here, the corporate
entity is owned by two 50 percent members. (Sprengel v. Zbylut (2019)
40 Cal. App. 5th 1028, 1043, 1046.) However, “the key inquiry is whether ‘the
totality of the circumstances’ implies an agreement that a corporate attorney
will not act adversely to the individual shareholder’s interests with respect to
the issue in dispute.” (Id. at p. 1047.)
The evidence in this case demonstrates that Wittenberg had no reason
to believe Peretz was acting to protect her interests with respect to the
proposed dismissal of the Hertzel cross-complaint. As Wittenberg
acknowledges, Peretz discussed the proposed dismissal with Wittenberg’s
14
own attorney, Lauer. There is no dispute that Peretz was representing
Daniel in defending against the Hertzel cross-complaint. Likewise, the
evidence establishes that Hertzel’s counsel at the time was Breed, who was
eventually succeeded by Cravens. At all relevant times, Wittenberg was
represented by her own counsel and was an adversary in litigation with
Peretz’s client, Daniel. Thus, Wittenberg fails to raise a triable issue as to
the existence of an attorney-client or other fiduciary relationship between her
and Peretz.
Finally, we conclude Wittenberg fails to show minimal merit on her
eighteenth cause of action alleging a conspiracy involving dismissal of the
cross-complaint. “Conspiracy is not a cause of action, but a legal doctrine
that imposes liability on persons who, although not actually committing a
tort themselves, share with the immediate tortfeasors a common plan or
design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia
Ltd. (1994) 7 Cal. 4th 503, 510–511.) Plainly stated, Wittenberg fails to make
a prima facie showing of facts that Peretz acted pursuant to a common plan
or design with Daniel and Cravens to obtain the unauthorized dismissal of
the Hertzel cross-complaint with prejudice.
For all of these reasons, we conclude the anti-SLAPP motion should
have been granted, in part, as to the allegation that Peretz participated in
the preparation and filing of the dismissal with prejudice of the Hertzel cross-
complaint against Peretz.
DISPOSITION
The order denying in part and granting in part the anti-SLAPP motion
is reversed to the extent it denied the motion to strike as to the allegation
that Peretz participated in the preparation and filing of the dismissal with
prejudice of the Hertzel cross-complaint. The matter is remanded with
15
directions to grant the special motion to strike the following sentences from
Wittenberg’s first amended complaint and the claims arising from the
stricken sentences: (1) the carryover sentence in paragraph 67, beginning at
line 27 on page 25 and ending on line 3 on page 26; and (2) the last sentence
in paragraph 69 on page 26, beginning at line 19 and ending on line 22. In
all other respects, the order is affirmed. The parties shall bear their own
costs on appeal.
16
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Jackson, J.
A154750
17
Filed 6/11/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
AMY WITTENBERG,
Plaintiff and Respondent,
A154750
v.
DANIEL BORNSTEIN et al., (Alameda County Superior
Court No. RG17878949)
Defendants and Appellants.
BY THE COURT:
The opinion in the above-entitled matter, filed on May 19, 2020, was
not certified for publication in the Official Reports. For good cause, the
request for publication is granted.
Pursuant to California Rules of Court, rules 8.1120 and 8.1105(c)(2),
the opinion in the above-entitled matter is ordered certified for publication in
the Official Reports.
Dated: _______________ _________________________Acting P.J.
1
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Paul D. Herbert
Counsel: Lonnie Finkel, Douglas A. Applegate, for Plaintiff and
Respondent.
Yosef Peretz, Daniel J. Cravens for Defendant and
Appellant.
2