Cannon v. Bettinger CA2/2 ( 2014 )

Filed 1/7/14 Cannon v. Bettinger CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SHARON CANNON, B240443
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC445437)
v.
JOHN S. BETTINGER et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County. Mark V.
Mooney, Judge. Affirmed.
Law Offices of Khachik Akhkashian and Khachik Akhkashian for Plaintiff and
Appellant.
Watkins & Letofsky, Daniel R. Watkins, and Jennie L. Kruempel for Defendants
and Respondents.
________________________
The litigation history between these parties is extensive, and this appeal is just one
in a string of actions brought by Sharon Cannon (appellant) against defendants and
respondents John S. Bettinger, DDS; John S. Bettinger, DDS, a professional corporation;
Gary R. Harmatz, DDS; The Dentist’s Insurance Company (TDIC); the Los Angeles
Dental Society (LADS); and the California Dental Association (CDA). In each action,
appellant has asserted the same basic claims against respondents arising out of their
alleged dispossession of appellant of dental study models. Appellant has yet to prevail,
but she does not relent. In this second appeal, she challenges an order granting
respondents’ special motion to strike her first amended complaint pursuant to Code of
Civil Procedure section 425.16,1 California’s anti-SLAPP2 statute. We agree with the
trial court that appellant’s claims fall squarely within the scope of the anti-SLAPP statute.
Moreover, as we explained in detail in our prior opinion, Cannon v. Bettinger (June 9,
2009, B205710) [nonpub. opn.] (Cannon I), appellant’s claims against respondents are
time-barred. Thus, she has failed to demonstrate a probability of prevailing.
Accordingly, we affirm the trial court’s order granting respondents’ anti-SLAPP
motion.
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2 SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v.
Superior Court (1994) 27 Cal. App. 4th 809, 813, overruled in part on other grounds in
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 68, fn. 5 (Equilon).)
2
FACTUAL AND PROCEDURAL BACKGROUND3
The First Lawsuit; Allegations in the Earlier Action
As summarized in Cannon I, appellant alleged the following: On July 7, 1998, she
filed a dental complaint against Dr. Bettinger and his dental corporation with the CDA.
Appellant’s complaint was later transferred to the LADS. On July 16, 1998, appellant
began dental treatment with Earl Smith, DDS, who made dental study models of
appellant that day. On or about September 30, 1998, Dr. Smith sent his original study
models to CDA and LADS, and he has not had possession of them since that time. On
June 11, 1999, LADS issued a written resolution, approved by CDA, finding that
Dr. Bettinger’s treatment of appellant fell below the standard of care for a dentist
practicing in California and that he was to refund the amount paid for appellant’s care.
(Cannon I, supra, B205710, p. 2.)
On June 23, 1999, appellant, in propria persona, filed a dental malpractice action
against Dr. Bettinger in state court. On June 30, 1999, CDA and LADS closed their case
in light of appellant’s court action and retained possession of the original study models,
which had a diagnostic value of at least $15,275. Appellant designated Dr. Smith as her
expert witness in October 2001. Dr. Bettinger’s legal counsel was David M. Hillings and
his expert witness was Dr. Gary R. Harmatz. A four-day jury trial was conducted
between December 16 and 19, 2003, and a judgment was entered in favor of
Dr. Bettinger. (Cannon I, supra, B205710, pp. 2–3.)
3 Many of the facts are taken from our prior opinion in Cannon I; these allegations
are repeated in the first amended complaint in the instant action. A copy of the operative
pleading in this case, as well as numerous documents critical to our review of the trial
court’s order, is contained in respondents’ motion to augment the record on appeal.
Absent respondents’ motion, we would have been unable to provide any meaningful
review as appellant did not provide us with an adequate record; the clerk’s transcript
designated by appellant contains only a copy of the order granting respondents’ anti-
SLAPP motion, notice of entry of that order, and appellant’s notice of appeal. (Brown v.
Boren (1999) 74 Cal. App. 4th 1303, 1320–1321.)
3
During the trial on December 18, 2003, after Dr. Smith had testified and returned
to Arizona, Dr. Bettinger, Hillings and TDIC produced their new “last-minute evidence”
consisting of Dr. Smith’s original study models (appellant’s characterization of the
evidence). Appellant alleged that that same day, Dr. Bettinger falsely testified that
Dr. Smith had sent the original study models to the defense. Appellant claimed that she
never gave her consent for any of the respondents to possess the original study models or
to use them in defending the malpractice action. Appellant contended that she was
denied valuable use of the study models in her dental treatment and in litigating the
malpractice case. (Cannon I, supra, B205710, p. 3.)
On or about January 22, 2004, appellant contacted the peer review coordinator for
CDA and LADS to inquire as to how respondents came into possession of the original
study models. After reviewing the case file in storage, the coordinator allegedly falsely
represented to appellant that LADS had returned the study models to Dr. Smith on or
about June 30, 1999, when the matter was closed, but did not provide appellant with
written verification or proof that he had received the study models, as appellant
requested. (Cannon I, supra, B205710, p. 3.)
On or about February 8, 2006, appellant allegedly learned the identity of
Dr. Bettinger’s insurance company, TDIC, when it commenced efforts to collect as a
beneficiary of the judgment rendered against appellant. According to the operative
pleading, appellant could not with due diligence have discovered the conversion of
Dr. Smith’s original study models until she learned the identity of Dr. Bettinger’s insurer
and its close relationship with the other respondents. (Cannon I, supra, B205710, p. 3.)
The Second Lawsuit
Appellant filed the second action on January 22, 2007. She filed the first amended
complaint on August 10, 2007, alleging causes of action for conversion, trespass to
chattel, fraud, negligent misrepresentation and conspiracy against all respondents, and
alleging negligence against CDA and LADS (based upon allegations set forth above). In
response to that pleading, the defendants filed a demurrer, a motion to strike portions of
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the pleading and a special motion to strike. The same day, appellant filed a motion for
leave to file an amended complaint. (Cannon I, supra, B205710, pp. 3–4.)
The trial court sustained the demurrer without leave to amend and entered
judgment. (Cannon I, supra, B205710, p. 4.) Appellant appealed the trial court’s
judgment and, on June 9, 2009, we affirmed the trial court’s order, concluding that all of
her causes of action were time-barred. (Cannon I, supra, B205710, p. 2.)
The Instant Action
On September 13, 2010, appellant filed yet another complaint, again alleging
conversion, fraud and deceit, and conspiracy, based upon the same set of facts alleged in
the 2007 action (alleged dispossession of appellant’s study models). On December 20,
2010, respondents filed a demurrer, motion to strike, and an anti-SLAPP motion.
Prior to the hearing on respondents’ demurrer, motion to strike, and anti-SLAPP
motion, appellant filed a first amended complaint, alleging causes of action for
conversion, various statutory claims, conspiracy, breach of fiduciary duty, and fraud. As
with prior pleadings, the gravamen of appellant’s claims is that respondents dispossessed
appellant of her study models.
On September 27, 2011, the trial court granted respondents’ special motion to
strike appellant’s claims for conversion, fraud and deceit, and conspiracy.
On October 27, 2011, respondents filed a special motion to strike the remaining
causes of action in appellant’s first amended complaint (statutory violations and breach of
fiduciary duty). The trial court reasoned: Appellant’s “allegations in her first amended
complaint arise from [respondents’] activities in the underlying malpractice action and
the previous lawsuit filed by [appellant] against these [respondents]; therefore,
[respondents] met their burden by showing the conduct complained of is constitutionally
protected by the statute. In addition, [appellant] failed to demonstrate a probability of
success.”
Respondents were later awarded attorney fees and costs.
This appeal timely ensued.
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DISCUSSION
I. Standard of Review
“We review the trial court’s rulings on a SLAPP motion independently under a
de novo standard of review. [Citation.]” (Kajima Engineering & Construction, Inc. v.
City of Los Angeles (2002) 95 Cal. App. 4th 921, 929.)
II. The Anti-SLAPP Statute
“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising
their political rights or punishing those who have done so.” (Simpson Strong-Tie Co.,
Inc. v. Gore (2010) 49 Cal. 4th 12, 21.) “In 1992, out of concern over ‘a disturbing
increase’ in these types of lawsuits, the Legislature enacted section 425.16, the anti-
SLAPP statute.” (Ibid.; see § 425.16, subd. (a).) Section 425.16, subdivision (b)(1)
provides: “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 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.” The
statute “posits . . . a two-step process for determining whether an action is a SLAPP.”
(Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.) First, the defendant bringing the special
motion to strike must make a prima facie showing that the anti-SLAPP statute applies to
the claims that are the subject of the motion. (Wilcox v. Superior Court, supra, 27
Cal.App.4th at p. 819.) Once a moving defendant has met its burden, the motion will be
granted (and the claims stricken) unless the court determines that the plaintiff has
established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co.
v. Superior Court (2000) 78 Cal. App. 4th 562, 567–568.)
III. Protected Activity
We turn first to the question of whether appellant’s claims qualify for treatment
under section 425.16.
Section 425.16, subdivision (e), provides, in relevant part: “As used in this
section, ‘act in furtherance of a person’s right of petition or free speech under the United
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States or California Constitution in connection with a public issue’ includes: . . . (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.” (§ 425.16, subd. (e)(4).)
“Subdivision (e) of [section 425.16] includes four separate categories of acts
which qualify for treatment under the section. . . . Category four provides a catch-all for
‘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.’ (Italics added.)” (Lieberman v. KCOP Television, Inc. (2003) 110
Cal. App. 4th 156, 164.)
In determining whether a cause of action falls within section 425.16, subdivision
(e), we must “focus on ‘the substance of’ the lawsuit to determine whether it [arises] from
[respondents’] protected activities. [Citation.] Thus, it is the principal thrust or
gravamen of [appellant’s] cause[s] of action that determines whether the anti-SLAP[P]
statute applies. [Citation.]” (Scott v. Metabolife Internat., Inc. (2004) 115 Cal. App. 4th
404, 413–414 (Scott); see also Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal. App. 4th 1219, 1232 [“The statute’s definitional focus
is not on the form of the plaintiff’s cause of action but rather the defendant’s activity
giving rise to his or her asserted liability and whether that activity constitutes protected
speech or petitioning”]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal. App. 4th 624,
630.) “‘[T]he critical point is whether [appellant’s] cause of action itself was based on an
act in furtherance of [respondents’] right of petition or free speech. [Citations.]’
[Citation.]” (Scott, supra, at p. 414; see also Paul for Council v. Hanyecz (2001) 85
Cal. App. 4th 1356, 1365, disapproved on other grounds in Equilon, supra, 29 Cal.4th at
p. 68, fn. 5 [“the [defendant/cross-defendant] must present a prima facie showing that the
[plaintiff/cross-complainant’s] causes of action arise from acts of the [defendant/cross-
defendant] taken to further the [defendant/cross-defendant’s] rights of free speech or
petition in connection with a public issue”].)
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Appellant’s lawsuit (like the prior ones) rests solely on respondents’ alleged
activities in the first civil claim for malpractice and the second civil action filed by
appellant. Specifically, in the first amended complaint, appellant alleges that respondents
deprived her of the use of the study models for “formulating her theory of the malpractice
action.” She also alleges that she needed the study models “for the purpose[] of
supporting her case in chief in prosecuting her claims against Dr. Bettinger.” These
allegations confirm that appellant’s claims in the instant lawsuit are based squarely upon
respondents’ (albeit allegedly wrongful) petitioning activities.
In urging us to reverse, appellant argues that because her claims are based upon
activities that occurred after the underlying dental malpractice action had concluded, the
anti-SLAPP statute does not apply. This argument makes no sense. Respondents’
allegedly wrongful conduct was the act of dispossessing appellant of her study models;
according to appellant’s first amended complaint, that alleged misconduct occurred
during and as part of the underlying civil proceedings. Appellant has not demonstrated
that she was more dispossessed of her property after the alleged destruction of the study
models than when she was denied use of them during her prior action against
respondents.
She further avers that because the complained of activity was illegal, it is not
subject to the anti-SLAPP statute. But, the cases cited by appellant are readily
distinguishable. First, respondents here do not admit that they engaged in any illegal
activity. (Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1367; Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th
1228, 1246 [if the defendant concedes that the conduct complained of was illegal, the
defendant will be unable to make a prima facie showing that the action arises from
protected activity within the meaning of section 425.16].) Second, the evidence does not
conclusively establish that the assertedly protected activity was illegal as a matter of law.
(Flatley v. Mauro (2006) 39 Cal. 4th 299, 320.)
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IV. Probability of Prevailing
Because appellant’s causes of action are subject to the anti-SLAPP statute, the
burden shifted to her to show, through competent, admissible evidence, a probability of
success on the merits of her claims in order to defeat respondents’ anti-SLAPP motion.
(Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1496–1498.) She could not, and cannot,
do so for the same reasons outlined in Cannon I—her claims are time-barred.4
(Cannon I, supra, B205710, at pp. 6–13.)
In an effort to circumvent the timeliness issue, appellant asserts that a claim for
“loss of use and enjoyment of personal property due to interruption” differs from a claim
for “loss of use and enjoyment of personal property due to destruction.” Because
appellant did not allegedly know until October 2007 that her dental study models had
been destroyed, she contends that the instant lawsuit (which was filed before October
2010) is timely.
As set forth above, this issue is a red herring. The alleged misconduct (wrongful
dispossession of appellant of her dental study models) occurred years before this lawsuit
commenced. That allegedly wrongful conduct is what triggered the statute of limitations
(AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal. App. 4th 631, 639), and
appellant directs us to no legal authority that shows otherwise.
Even if she could, we previously disposed of this argument. As set forth in
Cannon I: “[A]ppellant argues for the first time on appeal that her causes of action did
not accrue until on or about October 2007, when respondents’ counsel allegedly informed
her counsel that the subject models had been destroyed. But even assuming appellant
could amend the [first amended complaint] to state this allegation, it does not alter the
fact that appellant knew, or should have known, of respondents’ allegedly wrongful
4 The first amended complaint in the prior action did not include claims for statutory
violations. (Cannon I, supra, B205710, at p. 3.) The statute of limitations for a cause of
action upon a liability created by statute is three years. (Code Civ. Proc., § 338, subd.
(a).) For the same reasons we discussed in Cannon I, the three-year time bar precludes
these claims.
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possession of and interference with her use of the original study models as of
December 18, 2003. ‘The law is too well settled to require any extensive citation of
authorities that one may not cure a defect in a complaint by the omission, after earlier
disclosure in another pleading, of the defective allegation in a subsequent complaint
pertaining to the same cause of action.’ (Muller v. Muller (1958) 156 Cal. App. 2d 623,
625; Zakaessian v. Zakaessian (1945) 70 Cal. App. 2d 721, 724.) Additionally, appellant
filed the instant lawsuit well before October 2007. Certainly she filed the lawsuit
believing that she had already been wronged, and she cannot therefore rely on an event
after the lawsuit was filed to trigger the limitations period on her causes of action.”
(Cannon I, supra, B205710, at p. 8.)
DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Respondents are entitled
to recover attorney fees and costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
_______________________, P. J.
BOREN
_______________________, J.*
FERNS
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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