Shenefield v. Kovtun CA4/1

Filed 1/28/22 Shenefield v. Kovtun CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JENNIFER SHENEFIELD, D078616
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-
00052009-CU-PO-CTL)
KAROLYN KOVTUN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Affirmed.
Philip L. Gagnon for Defendant and Appellant.
The Cabrera Firm, Guillermo Cabrera; Justice Legal Network and
Casey Gwinn for Plaintiff and Respondent.
INTRODUCTION
Jennifer Shenefield attended a meeting in Karolyn Kovtun’s office,
where Jennifer’s husband Mark Shenefield1 was also present. Jennifer had a
domestic violence restraining order (DVRO) against Mark, and Kovtun, who
1 Because the Shenefields share a surname, we refer to them by first
name for clarity.
was Mark’s attorney, was aware of it. The meeting lasted more than an hour,
and Jennifer recorded most of it without Mark or Kovtun’s knowledge.
Jennifer reported Kovtun’s behavior at the meeting to the State Bar, which
investigated and closed the matter. Several months later, Kovtun sued
Jennifer in small claims court for invasion of privacy for recording the
meeting. (Pen. Code, § 637.2, subd. (a)(1).) Jennifer cross-complained,
alleging several causes of action that challenged the lawfulness of Kovtun’s
conduct at the meeting. Kovtun filed an anti-SLAPP motion (Code Civ. Proc.,
§ 425.16), which the court denied. When Jennifer filed an amended
complaint, Kovtun filed a second anti-SLAPP motion, which the trial court
again denied.
Kovtun appeals the denial of the second anti-SLAPP motion. She
contends the court improperly concluded Jennifer could show a probability of
success on the merits. In her appeal, Kovtun raises many of the issues
addressed by the court’s order denying the first anti-SLAPP motion,
including whether (1) the cross-complaint is compulsory and prevents Kovtun
from filing an anti-SLAPP motion; (2) the recording and transcript of the
conversation were properly admitted; (3) the litigation privilege applies to the
totality of the meeting; (4) Kovtun had waived any statute of limitations
defense; (5) the causes of action were barred by statutes of limitations; and
(6) the negligent misrepresentation and misrepresentation causes of action
stated causes of action upon which relief could not be granted.
We conclude the anti-SLAPP motion, which forms the basis of this
appeal, was not timely, and we therefore will affirm the trial court’s denial of
that motion. Because we reach our conclusion on this threshold issue, we
decline to address the remaining issues Kovtun raises in her appeal.
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BACKGROUND AND PROCEDURAL FACTS
A. The Underlying Conduct 2
Jennifer and Mark were married and share a child, A.S. On June 13,
2017, a court entered a five-year protective order, naming Jennifer and A.S.
among the protected parties. The order awarded Jennifer full custody of A.S.
and provided no visitation for Mark. It also gave Jennifer permission to
record communications made by Mark that violated the order.
On September 13, 2017, Mark, represented by Karolyn Kovtun, entered
a guilty plea for battery on a spouse (Pen. Code, § 243, subd. (e)).
On September 28, 2017, Mark contacted Jennifer from Kovtun’s office.
Kovtun told Jennifer that if Jennifer did not attend a meeting there that day,
Kovtun would file for full custody on behalf of Mark and remove A.S. from
Jennifer’s custody and care. Jennifer attended the meeting. Mark did not
speak during the first 10 minutes of the meeting. He became enraged when
Jennifer would not sign a stipulation for 50 percent custody. When Jennifer
attempted to leave, Kovtun told her if she left, they would file for full custody
and get it. At that point, Jennifer began recording the conversation.
Kovtun was present for the duration of the meeting and was Mark’s
attorney of record at the time the DVRO was entered. Mark screamed
profanities, used aggressive language, and threatened to take full custody of
A.S. Kovtun accused Jennifer of being a bad parent, told Jennifer she would
have hit Jennifer if she were in Mark’s place, and generally accosted Jennifer
with screaming, aggressive language, and threats for more than an hour. At
one point, another tenant asked the parties to quiet down.
2 We take the facts in this section from the second amended verified
complaint.
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Before leaving the meeting, Jennifer signed the stipulated child custody
agreement, agreeing to share 50 percent physical custody with Mark. She
included the initials “U.D.” after her name to indicate she was signing under
duress. After she left the meeting, she contacted the police.3
B. The State Bar Complaint
On November 22, 2017, the State Bar of California sent Kovtun a letter
indicating it had received a complaint from Jennifer about Kovtun’s conduct
during the meeting on September 28. On December 15, 2017, the State Bar
sent Kovtun a letter stating it had concluded its investigation and
determined the matter did not warrant further action. It was closing the
matter without prejudice.
C. The Small Claims Suit
On July 13, 2018, Kovtun filed a small claims complaint against
Jennifer, seeking $5,000 in damages for invasion of privacy (Pen. Code,
§ 637.2, subd. (a)(1)) for recording Kovtun at her office during the
September 28 meeting.4 Trial was set for October 16, 2018.
D. Jennifer’s Complaint against Mark and Kovtun
On October 15, 2018, Jennifer filed a verified complaint against Mark
and Kovtun in the unlimited civil division of superior court. The factual
allegations regarding Kovtun related to the September 28, 2017 meeting.
Jennifer appeared with counsel in small claims court October 16, 2018, and
3 On October 22, 2018, Mark admitted that, on September 28, 2017, he
had unlawfully violated a court order that had been in place to prevent
domestic violence and pled guilty to a misdemeanor count of violating a
protective order (Pen. Code, § 166, subd. (c)(1)).
4 The small claims form lists the date of the recording as September 28,
2018. This appears to be a typographical error.
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served Kovtun with the complaint. The commissioner transferred the case to
superior court, where the court consolidated the actions on its own motion.
E. The First Anti-SLAPP Motion
On November 16, 2018, Kovtun filed an anti-SLAPP motion (Code Civ.
Proc., § 425.16). She argued (1) the cross-complaint was not compulsory and
was therefore subject to the anti-SLAPP statute; and (2) the conduct giving
rise to the causes of action in which she was named were all subject to the
anti-SLAPP statute because they arose from a meeting to prepare a custody
agreement to file with the court. She also argued (3) the transcript and audio
recording of the meeting were inadmissible evidence, and (4) Jennifer had no
probability of success on the merits because Kovtun’s conduct was protected
by the litigation privilege.5
While the motion was pending, Jennifer filed a first amended verified
complaint (FAVC). The FAVC modified one fact, who initially phoned
Jennifer to invite her to the meeting. The FAVC alleged nine causes of action
against Kovtun: a Ralph Act violation, negligence, professional negligence,
intentional infliction of emotional distress, false imprisonment, intentional
misrepresentation, negligent misrepresentation, witness intimidation, and
abuse of process. In the causes of action for negligence, professional
negligence, and intentional misrepresentation, the FAVC referenced Kovtun
as “Attorney Kovtun” and an “officer of the court,” and it alleged Kovtun had
violated “affirmative duty” she had as an officer of the court.
The court denied Kovtun’s anti-SLAPP motion. It ruled the transcript
and recording were admissible because a domestic violence victim can record
conversations with the restrained party. It also concluded the meeting was
5 Kovtun did not offer any other reason why Jennifer would not prevail
on the merits.
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not a confidential communication because it was not a formal mediation. It
found that because the cross-complaint was compulsory, it could not be
subject to an anti-SLAPP motion, and it ruled that the litigation privilege did
not protect the type of activity complained of here. Finally, it concluded that
challenges to the merits of the individual causes of action would more
appropriately be addressed by demurrers.
Kovtun appealed, but she never filed an opening brief, and the appeal
was dismissed.
F. The Second Anti-SLAPP Motion
In September 2020, Kovtun’s attorney alerted Jennifer’s attorney to a
one-year statute of limitations for complaints arising from an attorney’s
professional duties and services, Code of Civil Procedure, section 340.6. In
response, Jennifer filed a second amended verified complaint (SAVC) that
omitted the causes of action specific to Kovtun’s professional duties and
adjusted some of the other causes of action to remove references to any
special duties attributable to Kovtun’s responsibilities as an attorney. It
alleges six causes of action against Kovtun: violation of the Ralph Act,
negligence, intentional infliction of emotional distress, false imprisonment,
intentional misrepresentation, and negligent misrepresentation. It also
eliminated references to Kovtun as “Attorney Kovtun” and deleted references
to special duties arising from Kovtun’s profession as an attorney.
Kovtun filed a second anti-SLAPP motion. Kovtun’s only substantive
argument was that there was no probability of success because the statute of
limitations under Code of Civil Procedure section 340.6 barred the claims.
The court denied the second anti-SLAPP motion. It concluded the
FAVC and SAVC pleaded the same underlying facts and causes of action,
making the anti-SLAPP motion untimely. It also incorporated its reasoning
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from the earlier anti-SLAPP ruling. And it explained that Code of Civil
Procedure section 340.6 is a defense that should be raised at the proper time
and in the proper manner. It further noted Code of Civil Procedure section
340.6 does not bar the claims at issue because none of the causes of action
required a professional obligation and a couple were based in fraud.
Kovtun timely appealed.
DISCUSSION
The anti-SLAPP statute provides that “[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 State 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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
We review the denial of an anti-SLAPP motion de novo. (Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931,
940; Park v. Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1067.) Although we typically conduct a two-step analysis when ruling
on a special motion to strike under the anti-SLAPP statutory framework
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67), before
we reach that analysis, we start with the threshold issue of whether the
second anti-SLAPP was timely.
An anti-SLAPP motion is to be filed within 60 days of service of the
complaint or upon a later time deemed proper in the court’s discretion. (Code
Civ. Proc., § 425.16, subd. (f).) An amended complaint reopens the time to file
an anti-SLAPP motion when the amended complaint raises new causes of
action. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism
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(2018) 4 Cal.5th 637, 645-646 (Newport Harbor).) But “[b]y its terms, the
anti-SLAPP statute is directed at striking causes of action, not merely factual
allegations. [Citation.]” (Starview Property, LLC v. Lee (2019) 41
Cal.App.5th 203, 209 (Starview).) Code of Civil Procedure section 425.16 does
not permit an anti-SLAPP motion that could have been brought earlier.
(Starview, at p. 211.) Thus, to evaluate whether an anti-SLAPP motion can
be brought against an amended complaint, courts ask whether the amended
complaint pleads causes of action that could not have been addressed by an
earlier anti-SLAPP motion or adds new allegations that make the previously
pleaded causes of action subject to such a motion. (Ibid.)
Both the FAVC and SAVC allege the same basic course of events:
Mark contacted Jennifer from Kovtun’s office. Kovtun told Jennifer that if
she did not attend the meeting in her office, Mark would file for 100 percent
custody of their child. Once at Kovtun’s office, Mark did not speak for the
first 10 minutes, and Jennifer did not record that portion of the conversation.
Jennifer refused to sign the custody agreement, Mark became enraged, and
when Jennifer attempted to leave, Kovtun told Jennifer if she left, Mark
would successfully file for 100 percent custody. Kovtun called Jennifer a bad
mother, threatened to take away A.S. from her custody, and told Jennifer
that if Kovtun were in Mark’s shoes, Kovtun would have hit Jennifer, too.
Kovtun participated in the meeting, even though she knew Jennifer had a
valid DVRO against Mark, and Kovtun screamed at Jennifer and used
aggressive language and custody-related threats for over an hour. Kovtun
and Mark were so loud, a neighboring tenant asked them to quiet down.
After 90 minutes, Jennifer signed a document agreeing to share 50 percent
custody of A.S. with Mark next to the initials “U.D.” to signify she had done
so “under duress,” and she contacted police. This series of events forms the
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basis for each cause of action against Kovtun and is unchanged between the
first and second amended complaints.
The SAVC alleges six causes of action against Kovtun: violation of the
Ralph Act,, negligence, intentional infliction of emotional distress, false
imprisonment, intentional misrepresentation, and negligent
misrepresentation. These same six causes of action against Kovtun appear in
the FAVC. We recognize some of the allegations included within the causes
of action have been eliminated or modified in the SAVC. For example, in the
FAVC negligence cause of action, Jennifer alleged Kovtun held special duties
as a licensed attorney, which she breached by inviting a protected party into
the same space as a restrained party and by not restraining Mark. In the
SAVC, Jennifer alleged Kovtun violated a general duty of care by inviting a
protected party into the same space as a restrained party and by not
restraining Mark. However, we note that while the theory behind the alleged
duty and breach is different, the conduct and the elements alleged remain
unchanged.
The issue for timeliness is whether an amended complaint “ ‘ “pleads
new causes of action that could not have been the target of a prior anti-
SLAPP motion, or adds new allegations that make previously pleaded causes
of action subject to an anti-SLAPP motion.” ’ [Citation].” (Starview, supra,
41 Cal.App.5th at p. 211, citing Newport Harbor, supra, 4 Cal.5th at p. 641.)
Kovtun’s anti-SLAPP motion relies on a statute of limitations argument that
was available when she filed the initial anti-SLAPP motion. And the FAVC
much more obviously triggered the issue; Jennifer included three causes of
action directed at Kovtun’s professional responsibilities, and the complaint
repeatedly referred to Kovtun as an attorney. Given Kovtun’s perspective
that the SAVC, like the FAVC, is based on her professional responsibilities, it
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seems insincere to argue that changes to the SAVC give rise to a new basis
for an anti-SLAPP motion. Because the SAVC does not raise new causes of
action, we will affirm the order denying the anti-SLAPP motion as untimely.
Kovtun offers a myriad of reasons why the court should have granted
the second anti-SLAPP motion in her appeal. However, none of these can
overcome the procedural limitation. Accordingly, we decline to address them.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
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