Opperwall v. Ornelas CA1/5 ( 2021 )

Filed 3/11/21 Opperwall v. Ornelas CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
STEPHEN G. OPPERWALL,
Plaintiff and Appellant,
v. A157904
MICHAEL ORNELAS, et al.,
(Alameda County
Defendants and Respondents. Super. Ct. No. HG18900038)
Unhappy with the handling of his homeowners insurance claim,
attorney Stephen G. Opperwall sued his insurer, State Farm General
Insurance Company (State Farm). Opperwall also sued Dean Pappas, one of
the attorneys State Farm hired to communicate with Opperwall about the
insurance claim that was the subject of the litigation. The trial court granted
Pappas’s special motion to strike and awarded him attorney fees (Code Civ.
Proc., § 425.16).1
Undesignated statutory references are to the Code of Civil Procedure.
1
The other attorney defendants, David Demo and Sandra Stone, prevailed
on their special motion to strike. Opperwall appealed, and we affirmed.
(Opperwall v. Stone (June 24, 2020, A156200) [nonpub. opn.].) We
incorporate by reference our opinion in the prior appeal.
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We affirm. We conclude the claim against Pappas arises from protected
activity; that Opperwall cannot demonstrate a probability of success; and
that Pappas is entitled to statutory attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
We recite only those facts necessary to resolve the issues on appeal and
disregard factual assertions in Opperwall’s briefs unsupported by record
citations. (Caldera v. Department of Corrections & Rehabilitation (2018)
25 Cal.App.5th 31, 46.) We note that many of the contentions raised in this
appeal were addressed and rejected in the prior appeal, in part because of the
absence of record citations in Opperwall’s briefs.
A.
Opperwall’s Insurance Claim and First Lawsuit
Opperwall had a homeowners insurance policy with State Farm. He
made a claim under the policy “for water damage to his home, contending he
did not receive all the benefits due under the policy.” Later, Opperwall—a
licensed California attorney—threatened to sue State Farm. After
“Opperwall’s repeated threats of legal action,” State Farm hired attorney
David Demo to communicate with Opperwall regarding the insurance claim.
In October 2017, State Farm closed the claim file and notified
Opperwall. About a month later, Opperwall filed a lawsuit against a State
Farm insurance entity alleging several claims, including for breach of
contract and fraud. State Farm hired attorney Sandra Stone to defend the
lawsuit. State Farm removed the lawsuit to federal court and moved to
dismiss certain claims. The district court partially granted the motions.
In March 2018, Opperwall threatened to file a new lawsuit naming
Demo and Stone as defendants if State Farm did not accept his latest
settlement demand. Around that same time, State Farm hired Pappas, an
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attorney at Ropers, Majeski, Kohn & Bentley (now Ropers Majeski) to
communicate with Opperwall. In March and April, Pappas wrote Opperwall
letters about the claim.
B.
Opperwall’s Second Lawsuit and
Pappas’s Special Motion to Strike
In early April 2018, Opperwall dismissed the first lawsuit without
prejudice and filed a new complaint in superior court against several
defendants, including Demo and Stone. The complaint did not name Pappas
as a defendant but alleged he was acting as a State Farm employee “rather
than as independent counsel.” Pappas demurred. The trial court sustained
the demurrer with leave to amend.
Opperwall filed a first amended complaint (complaint) naming Pappas
as a defendant and alleging a claim against him for “interference with
contract and inducing breach of contract.” According to the complaint, after
Opperwall “first sued State Farm,” Pappas took “illegal” and “bad faith
actions” intended to prevent performance of the insurance contract, such as
refusing to discuss aspects of the claim with Opperwall, precluding
Opperwall from discussing the claim with State Farm, and threatening him.
The complaint further alleged Pappas “interjected” himself between
Opperwall and State Farm and “interfered” with the insurance claim.
Finally, the complaint alleged Pappas “destroyed, and/or erased evidence
from the claim file” in violation of Penal Code section 135 and the State Bar
Rules of Professional Conduct.
Pappas filed a special motion to strike. He argued his communication
with Opperwall constituted protected litigation-related activity and that
Opperwall could not demonstrate a probability of prevailing because the
litigation privilege barred Opperwall’s claim.
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In a declaration, Pappas averred State Farm hired him as legal counsel
in March 2018, after Opperwall had sued State Farm and threatened to sue
Demo and Stone. Pappas was hired to communicate with Opperwall and to
consult with State Farm regarding the insurance claim. Pappas’s
representation of State Farm “related directly to the legal issues that served
as the basis of Opperwall’s complaints and legal claims.” Pappas denied
concealing or destroying evidence. As Pappas explained, he had “no ability to
conceal, erase, or destroy anything in State Farm’s claims file” and no reason
to believe evidence had been concealed or destroyed.
In opposition, Opperwall reiterated the allegations in the complaint.
He also repeatedly stated Pappas was not a “protected person” under section
425.16 and that Pappas’s “actions [were] not protected” under the statute. In
his declaration, Opperwall averred Pappas was acting as a claims adjuster,
not an attorney. Opperwall stated he had a “meritorious claim against
Pappas” and referred to Pappas’s “illegal” activities, which included
eliminating the insurance claim file.
The court granted the special motion to strike. First, it determined the
allegations arose out of protected activity because Pappas was hired in a
“legal capacity” to represent State Farm, and because Pappas’s conduct
constituted “litigation-related activity.” As the court explained, the
“allegations in the complaint relate[d] to . . . Pappas’[s] actions taken during
his representation of State Farm either directly prior [to] the litigation, [or]
in anticipation of the pending litigation, both related to the [f]ederal claim
that was dismissed and the current action.” The court rejected Opperwall’s
conclusory statement that Pappas acted as a claims adjuster rather than an
attorney, noting Pappas presented evidence he was hired as “legal counsel” to
communicate with Opperwall about the insurance claim—“in light of the on-
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going litigation”—and that Opperwall had not controverted that evidence “in
any meaningful way.”
Next, the court concluded Opperwall failed to demonstrate a probability
of prevailing on the merits because he had “not shown that he will be able to
overcome [Pappas’s] assertion of the litigation privilege.” The court also
observed Opperwall had offered no evidentiary support for his cause of action
against Pappas. Finally, the court determined the alleged removal of the
online claim file did not amount to destroying evidence.
C.
Pappas’s Attorney Fee Motion
Pappas moved for attorney fees pursuant to section 425.16, subdivision
(c), supported by a declaration from a Ropers Majeski partner who averred he
represented Pappas. In opposition, Opperwall argued Pappas was not
entitled to recover attorney fees because he was “self-represented.” The court
granted the motion and awarded Pappas $22,000 in attorney fees.
DISCUSSION
I.
Opperwall’s Timeliness Argument is Forfeited
In one sentence in his opening brief, Opperwall claims the motion was
untimely because it was not filed within 60 days of service of the original
complaint. This contention is forfeited for two reasons. First, the argument
was not raised below. (Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 997 [“ ‘As a general rule, theories not raised in the trial
court cannot be asserted for the first time on appeal.’ ”].) We reject
Opperwall’s assertion that the time limit to file a SLAPP motion is
jurisdictional. “Clearly, the 60-day time period set forth in subdivision (f)
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of section 425.16 is not jurisdictional. The trial court has the legal authority
to allow the filing of an anti-SLAPP suit motion to strike ‘at any later time
[after ‘60 days of the service of the complaint’] upon terms it deems proper.’
The nonjurisdictional nature of the time limit is also emphasized by the
permissive ‘may’ in the setting forth of the time limit (‘The special motion
may be filed’).” (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840.)
Second, Opperwall did not support the contention in his opening
brief with legal argument and citation to authority. (Caldera v. Department
of Corrections & Rehabilitation, supra, 25 Cal.App.5th at p. 46.) In his
reply brief, Opperwall presents a more developed argument, but “ ‘[o]bvious
reasons of fairness militate against consideration of an issue raised
initially in the reply brief.’ ” (In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1477–1478.)
II.
The Court Properly Granted the Special Motion to Strike
In ruling on a special motion to strike, the trial court engages in a two-
step process. “ ‘First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the defendant
makes the required showing, the burden shifts to the plaintiff to demonstrate
the merit of the claim by establishing a probability of success.’ ” (Contreras v.
Dowling (2016) 5 Cal.App.5th 394, 404 (Contreras).) Our review is de novo.
(Id. at p. 405.)
A. The Claim Against Pappas Arises from Protected Activity
Under section 425.16, protected activity includes “any written or oral
statement or writing made in connection with an issue under consideration or
review by a . . . judicial body.” (§ 425.16, subd. (e)(2).) In deciding whether
Opperwall’s claim arises from such protected activity, “ ‘a court considers “the
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pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” ’ ” (Contreras, supra, 5 Cal.App.5th
at p. 408.)
The complaint alleges Pappas “interfered” with the insurance claim by
refusing to discuss aspects of the claim with Opperwall, by prohibiting
Opperwall from communicating with State Farm, and by removing
information from the claim file. All of these actions occurred after Opperwall
had sued State Farm over the alleged mishandling of the insurance claim.
Pappas’s declaration confirms he was hired to represent State Farm in a legal
capacity in connection with the “legal issues that served as the basis of
Opperwall’s complaints and legal claims.” In that role, Pappas wrote
Opperwall letters about the insurance claim that was the subject of the
litigation.
Pappas’s conduct falls squarely within the definition of protected
activity in section 425.16, subdivision (e)(2). A “ ‘statement is “in connection
with” litigation under section 425.16, subdivision (e)(2) if it relates to the
substantive issues in the litigation and is directed to persons having some
interest in the litigation.’ ” (Optional Capital, Inc. v. Akin Gump Strauss,
Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113–114.) Pappas’s
communications related to the substantive issue in the litigation—the
insurance claim—and were directed to a person with an interest in the
litigation—Opperwall. In his opening brief, Opperwall does not argue
otherwise.
Opperwall does not address the issue until his reply brief, where he
relies on Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (2020)
50 Cal.App.5th 920 (Trilogy). That case does not assist him. In Trilogy, the
plaintiff sued its insurer for “failing to perform under the terms of the
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[insurance] policies.” (Id. at p. 934.) The lawsuit alleged the insurer
“mishandl[ed] . . . the claims process” for lawsuits naming the plaintiff and
“wrongfully negotiated settlements” without the plaintiff’s consent. (Id. at
p. 924.) The appellate court held these allegations did not come within
section 425.16, subdivision (e)(2). (Trilogy, at p. 932.) Trilogy noted the
complaint did not name “as a defendant any attorney who [the insurer]
retained,” nor “refer to any oral or written statements or communicative
conduct by anyone, whether in relation to the lawsuits in which [the plaintiff
had been sued], or in the context of settlement discussions.” (Ibid.) Rather,
the allegation was that the insurer “failed to perform under the terms of the
policies.” (Id. at p. 934.)
Trilogy is easily distinguishable. Here—and unlike Trilogy—
Opperwall sued State Farm’s attorneys, including Pappas. And in contrast
to Trilogy, the claim against Pappas arose out of Pappas’s conduct in
connection with the insurance claim, an issue under consideration in a
judicial proceeding. Pappas’s declaration establishes his conduct related to
communications with Opperwall, not performance under the terms of the
insurance policy. Opperwall did not offer below, nor cite in the record before
this court, any admissible evidence of any other conduct by Pappas.
Equally unpersuasive is Opperwall’s contention that the lawsuit is a
“private dispute” between a homeowner and an insurance carrier that falls
outside the scope of section 425.16. This argument ignores the evidence and
the relevant statutory provision. Whatever Pappas was alleged to have done,
it was in response to the lawsuit Opperwall had filed, or in anticipation of the
second lawsuit Opperwall had threatened, thus bringing the acts within
section 425.16, subdivision (e)(2). When “alleged protected activity occurs in
the context of a . . . official proceeding” under section 425.16, subdivision
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(e)(2), “there is no additional requirement that it be connected with an issue
of public importance.” (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1515.)
Opperwall’s remaining arguments—which are identical to those
rejected in the prior appeal and likewise are unsupported in the record on
appeal or by admissible evidence below—have been considered and merit no
further discussion.
B. Opperwall Cannot Establish a Probability of Success
If the defendant shows the plaintiff’s claims arise from protected
activity, “ ‘the burden shifts to the plaintiff to demonstrate the merit of
the claim by establishing a probability of success.’ ” (Contreras, supra,
5 Cal.App.5th at p. 404.) At this step of the analysis, the plaintiff “ ‘ “ ‘must
demonstrate that the complaint is both legally sufficient and supported by
a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.’ ” [Citation.] “We consider
‘the pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’ [Citation.] However, we neither ‘weigh
credibility [nor] compare the weight of the evidence. Rather, [we] accept as
true the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.’ ” ’ ” (Id. at p. 405.)
Opperwall suggests that under this standard, the court must accept the
allegations of the amended complaint as true. Not so. Opperwall must show
a probability of success with evidence, not merely allegations. This second
step of the analysis is a “ ‘summary-judgment-like procedure.’ ” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384.)
The court concluded Opperwall could not establish a probability of
prevailing because the litigation privilege in Civil Code section 47,
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subdivision (b) barred the claim. The litigation privilege “ ‘may present a
substantive defense a plaintiff must overcome to demonstrate a probability of
prevailing’ ” on a special motion to strike. (Contreras, supra, 5 Cal.App.5th at
p. 415.) As relevant here, Civil Code section 47, subdivision (b)(2) defines
a “privileged publication” as one made in any “judicial proceeding.” The
litigation privilege “applies to any publication required or permitted by law in
the course of a judicial proceeding to achieve the objects of the litigation, even
though the publication is made outside the courtroom and no function of the
court or its officers is involved.” (Silberg v. Anderson (1990) 50 Cal.3d 205,
212.) The litigation privilege extends to statements made in anticipation
of litigation. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350,
360–361.)
The court determined the litigation privilege applied because Pappas
averred he was retained as legal counsel to communicate with Opperwall
about the insurance claim “in light of the on-going litigation over [that]
claim” and because Opperwall had not controverted that evidence “in any
meaningful way.” On appeal, Opperwall ignores the court’s conclusions.
He does not address the litigation privilege, nor explain why it does not bar
his claim. It is not our responsibility to “examine undeveloped claims, nor
to make arguments for parties.” (Paterno v. State of California (1999)
74 Cal.App.4th 68, 106.) Opperwall has failed to establish error. (Caldera v.
Department of Corrections & Rehabilitation, supra, 25 Cal.App.5th at p. 46.)2
2 Even if Opperwall could overcome the litigation privilege, he cannot
establish a probability of success on his claim. Opperwall alleges Pappas was
an employee or agent of State Farm, and it is well settled that “corporate
agents and employees acting for and on behalf of a corporation cannot be held
liable for inducing a breach of the corporation’s contract.” (Shoemaker v.
Myers (1990) 52 Cal.3d 1, 24.)
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III.
The Court Properly Awarded Pappas Attorney Fees
A prevailing defendant on a special motion to strike is entitled to
recover attorney’s fees and costs. (§ 425.16, subd. (c)(1); Contreras, supra,
5 Cal.App.5th at p. 404.) In challenging the attorney fee award, Opperwall
reprises the unsuccessful arguments he made in the trial court and in the
prior appeal. For example, Opperwall contends Pappas cannot recover
attorney fees because he is a “self-represented attorney” and because “there
was no attorney client relationship between” Pappas and the attorney who
filed the special motion to strike on his behalf.
We reject these arguments for the reasons we articulated in the prior
appeal: there is no evidence, or case law, supporting them. Pappas did not
represent himself. Another attorney at Ropers Majeski, with whom Pappas
had an attorney-client relationship, represented Pappas. (Gilbert v. Master
Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 222 [attorney-client
relationship exists where attorney litigant is represented by another
attorney, even if the other attorney works in the same firm].)
DISPOSITION
The orders granting the special motion to strike and awarding attorney
fees are affirmed. Pappas is entitled to costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(2).)
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_________________________
Seligman, J.*
WE CONCUR:
_________________________
Needham, Acting P. J.
_________________________
Burns, J.
A157904
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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