Taft v. Veatch Carlson CA2/6

Filed 10/12/22 Taft v. Veatch Carlson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
FOSTER TAFT, 2d Civ. No. B315479
(Super. Ct. No. 56-2021-
Plaintiff and Appellant, 00551080-CU-CR-VTA)
(Ventura County)
v.
VEATCH CARLSON, LLP
et al.,
Defendants and
Respondents.
Foster Taft appeals a judgment entered in favor of
defendants Veatch Carlson, LLP (Veatch) and attorney Leslie
Burnet (respondents) on his action for damages for the
unauthorized disclosure of medical information. The trial court
entered judgment after granting respondents’ “special motion to
strike.” (Code Civ. Proc., § 425.16 (anti- SLAPP statute).1) We
conclude, among other things, that 1) in granting the anti-SLAPP
All statutory references are to the Code of Civil Procedure
1
unless otherwise stated.
1
motion, the court correctly ruled Taft’s action arose from
respondents’ protected activity; 2) Taft failed to show that he
could prevail; and 3) the court did not abuse its discretion in
ordering Taft to pay attorney fees. We affirm.2
FACTS
Taft v. West
In January 2020, Taft filed a lawsuit against David West in
the Los Angeles County Superior Court, alleging that he suffered
personal injuries as a result of a traffic accident caused by West.
(Taft v. West (Super. Ct. Los Angeles County, 2020, No.
2OSTCV02326).)
Veatch and Burnet represented West. Because Taft
claimed he suffered medical costs and injuries, they issued
subpoenas to Taft’s medical providers, including the Ventura
County Medical Center (VCMC) in April 2020. They used U.S.
Legal Support, Inc. (US Legal) to serve the subpoenas.
Taft filed a motion to quash the subpoenas. In May 2020,
after receiving a copy of the motion to quash, US Legal confirmed
that those April subpoenas were “cancelled.”
On June 15, 2020, Burnet issued a subpoena for medical
records to Elisabeth Bertoline, “a provider that was not included
in the April Subpoenas.”
In December 2020, the trial court held a hearing on Taft’s
motion to quash subpoenas. Taft claimed he did not receive
notice of the June 15 subpoena to Bertoline, and he did not
discover the issuance of that subpoena until August 23, 2020.
The court denied his motion to quash and found Taft did not meet
“his burden” to support the motion, and he did not present “any
We grant respondents’ motion to augment the record filed
2
May 20, 2022.
2.
evidence” to support his claims. The court granted Taft’s request
to dismiss the case.
The Current Case
In 2021, Taft filed an action against the VCMC, US Legal,
Veatch, and Burnet alleging he suffered damages as a result of
their “illegal acquisition and unauthorized disclosure of medical
information.” (Capitalization omitted.) He alleged, inter alia,
that on June 15, 2020, Burnet had issued a subpoena for his
medical records without providing notice to him. He said the
“subpoena for medical records without notice was illegal” and led
to the “unauthorized disclosure” of his medical information in
violation of Civil Code section 56.13.
US Legal and VCMC filed demurrers. US Legal claimed
this action was barred by res judicata/collateral estoppel because
of the order denying Taft’s motion to quash service in the Taft v.
West case. VCMC claimed Taft was relitigating claims that were
rejected in a prior action. The court sustained the US Legal and
VCMC demurrers without leave to amend. It awarded sanctions
against Taft payable to VCMC, finding Taft was an attorney who
had filed a “frivolous” lawsuit.
Veatch and Burnet filed a special motion to strike Taft’s
action (§ 425.16), claiming: 1) Taft sued them for protected
activity of issuing a subpoena for medical records in representing
West; 2) Taft’s claim that they failed to serve him with the
Bertoline subpoena on June 15, 2020, was untrue as shown by
the affidavit of service; and 3) Taft did not state a cause of action
against them under Civil Code section 56.13.
Burnet declared she was an attorney with the Veatch firm,
the counsel for West in the Taft v. West action. She issued
subpoenas for medical records that were “reasonably calculated
3.
to lead” to “admissible evidence” during “the course of litigation”
to defend West. Taft’s April motion to quash did not involve the
subpoena to Bertoline. Veatch noted the trial court in Taft v.
West denied Taft’s motion to quash the subpoenas.
In opposition, Taft alleged Burnet and Veatch abused
“judicial procedures” and violated “discovery statutes.” He
claimed the order denying his motion to quash in Taft v. West did
not bar relitigating the issue of lack of notice on the June 15th
Bertoline subpoena because the court there only ruled the issues
were “moot.”
The trial court granted the anti-SLAPP motion. (§ 425.16.)
It found: 1) Taft’s lawsuit “is one arising from protected activity,”
and 2) Taft “has not demonstrated a probability of prevailing on
his claims.” The court entered judgment against Taft and
ordered him to pay attorney fees.
DISCUSSION
Granting the Anti-SLAPP Motion
The trial court did not err by granting the anti-SLAPP
motion. Section 425.16, subdivision (a) protects against frivolous
lawsuits that “chill the valid exercise of the constitutional rights
of freedom of speech and petition.” A defendant may file a special
motion to strike such a lawsuit.
An anti-SLAPP motion involves two steps. First, the
defendant must show the allegations of the complaint arise from
“protected activity in which the defendant has engaged.” (Wilson
v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) Second, if
the defendant sustains that burden, the plaintiff must show a
“probability” that he or she “will prevail” (§ 425.16, subd. (b)(1)),
or the lawsuit will be dismissed.
4.
Under the anti-SLAPP statute, a protected act falling
within the first step of the motion includes “ ‘conduct such as the
filing, funding, and prosecution of a civil action.’ ” (Takhar v.
People ex rel. Feather River Air Quality Management Dist. (2018)
27 Cal.App.5th 15, 28, italics added.)
The First Step
Taft sued the respondents for issuing a subpoena for his
medical records. Respondents were defending their client in
Taft’s lawsuit that sought personal injury damages. Taft claimed
they violated the privacy of his medical records. But a “plaintiff
seeking to recover damages arising out of a particular injury
cannot claim the physician-patient privilege with respect to that
injury because plaintiff’s action tenders the issue.” (Manela v.
Superior Court (2009) 177 Cal.App.4th 1139, 1149.) Because
issuing a subpoena is conduct in the defense of a “civil action,” it
was protected activity qualifying as the first step of the anti-
SLAPP motion. (Takhar v. People ex. rel. Feather River Air
Quality Management Dist., supra, 27 Cal.App.5th at p. 28.)
The Second Step
The trial court found the second step of the anti-SLAPP
motion was established. Taft claimed he was not served with the
June 15th Bertoline subpoena. But that subpoena had a proof of
service showing service on Taft at the address listed on his
complaint. A document “correctly addressed and properly mailed
is presumed to have been received in the ordinary course of mail.”
(Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)
“Whether that presumption has been rebutted is a
question” decided by the trial court. (Glasser v. Glasser (1998) 64
Cal.App.4th 1004, 1010-1011.) Taft did not present admissible
evidence to overcome that presumption. (Laker v. Board of
5.
Trustees of California State University (2019) 32 Cal.App.5th 745,
768.)
Angie Salvatierra declared she served the notice to
consumer on the Bertoline subpoena by mail in a sealed envelope
with postage fully prepaid addressed to Taft’s address on June
15. Taft had the burden to challenge that declaration. (AO Alfa-
Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 206.) But he
presented no evidence that her service did not comply with
statutory requirements (§ 1013) or was irregular. (Ma v. Merrill
Lynch, Pierce, Fenner & Smith, Inc. (2d Cir. 2010) 597 F.3d 84,
92.) He made no offer of proof that she listed the wrong address,
had a motive to lie, or to impeach her credibility. He did not
mention Salvatierra in his opposition to the motion even though:
1) he had attached her subpoena service declaration as an exhibit
to his complaint, and 2) the main issue in that complaint was
whether she served him. Taft claims he could not initiate
discovery. But he could have deposed her in the Taft v. West case
or requested to depose her in the current case. (§ 425.16, subd.
(g).)
Taft said he “learned of the subpoena” after “8/23.” But
this was a vague phrase that he repeated from his complaint.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 [the
plaintiff “ ‘may not rely solely on its complaint, even if
verified’ ”].) He did not provide additional facts or explanation.
(Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th
958, 973 [mere assertion of non-service without “evidence” to
support it is insufficient].) This did not overcome the
presumption. (Ibid.; People v. Safety National Casualty Corp.
(2010) 186 Cal.App.4th 959, 973 [presenting “minimal” evidence
of non-receipt does not “demonstrate the clerk’s failure to mail
6.
the notice”]; Akey v. Clinton County (2d Cir. 2004) 375 F.3d 231,
235 [“Denial of receipt, without more, is insufficient to rebut the
presumption”].)
The relevant time frame for mail receipt was June 2020.
(§ 1013.) But Taft presented no evidence about this period. He
did not state where he was at that time (Forslund v. Forslund
(1964) 225 Cal.App.2d 476, 487); who received mail at his address
or describe incoming mail procedures there (Tremayne v.
American SMW Corp. (1954) 125 Cal.App.2d 852, 854); state
whether he checked the mail daily, or who distributed it after
receipt (ibid.); state whether he searched his records, or why the
subpoena could not have been received and misplaced at his
address (Evans v. Department of Motor Vehicles, supra, 21
Cal.App.4th at p. 973); or why the alleged lack of notice was not
due to “inexcusable neglect.” (Ibid.) The court could draw
unfavorable inferences from his failure to present such evidence.
(Evid. Code, § 412; Sprague v. Equifax, Inc. (1985) 166
Cal.App.3d 1012, 1051.) Taft claimed Burnet violated his rights,
but Salvatierra served the notice, not Burnet.
Additional Findings
The trial court could also make additional findings against
Taft. Taft filed a motion to quash the Bertoline subpoena in the
Taft v. West case claiming he was not served. The court denied
that motion finding Taft did not “meet his burden” to support his
claims or present “any evidence” to support his allegations. That
order rejected his claims that he did not receive notice or that the
subpoenas were defective.
The trial court could reasonably find: 1) Taft did not show
a probability of prevailing because his current complaint relies on
the same failure of service issue that was rejected by the court in
7.
Taft v. West, and 2) Taft’s action was also barred by collateral
estoppel.
“Collateral estoppel ‘precludes relitigation of issues argued
and decided in prior proceedings.’ ” (Ayala v. Dawson (2017) 13
Cal.App.5th 1319, 1326.) This doctrine “ ‘does not require
identity of legal theories or causes of action.’ ” (Id. at p. 1327.)
The elements are present. Taft was a party to the Taft v. West
case, he litigated the same non-service issue, did not prevail, and
that order is final. (Id. at p. 1326.) His claim that the trial court
only ruled the issues were “moot” is refuted by the court’s written
order. Collateral estoppel applies to bar a plaintiff’s lawsuit
where there is a final ruling on a motion to quash service against
the plaintiff in a prior case that involves the same issue involved
in the current action. (Id. at p. 1327.) Consequently, collateral
estoppel bars Taft from relitigating the issue that is central to his
current action. (Ayala, at pp. 1326-1327.)
No Cause of Action
Respondents also correctly claimed Taft could not prevail
because he did not have a cause of action against them under
Civil Code section 56.13. That section provides, in relevant part,
“A recipient of medical information pursuant to an authorization
. . . may not further disclose that medical information except in
accordance with a new authorization . . . or as specifically
required or permitted by other provisions of this chapter or by
law.” (Ibid., italics added.) Burnet and Veatch were not medical
providers who received medical information “pursuant to an
authorization.” They were counsel to a party in litigation and the
“records were obtained” lawfully “pursuant to subpoena.”
(Manela v. Superior Court, supra, 177 Cal.App.4th at p. 1149.)
Consequently, the section he alleged in his complaint did not
8.
apply to them. (Brown v. Mortensen (2019) 30 Cal.App.5th 931,
937, fn. 6.)
Taft contends that because he filed a motion to quash
subpoenas for some medical records in April, Burnet and Veatch
were barred from issuing additional subpoenas thereafter. He
claims he has a cause of action because they sought additional
subpoenas after April. But filing a motion to quash is not a
restraining order barring discovery and the motion’s merit is not
decided until there is a ruling. As Burnet noted, there was no
ruling on that motion in June, no order preventing discovery, and
Bertoline was not one of the doctors whose records had been
subpoenaed in April. To prevent Burnet from issuing additional
subpoenas, Taft had to file a motion for a discovery protective
order and show good cause. (Nativi v. Deutsche Bank National
Trust Co. (2014) 223 Cal.App.4th 261, 318.) But he did not file
such a motion and he has not shown good cause. (Manela v.
Superior Court, supra, 177 Cal.App.4th at p. 1149.) Burnet and
Veatch could reasonably conclude his April motion lacked merit;
it was ultimately denied. (Ibid.) Moreover, there is an additional
reason why he cannot prevail.
The Litigation Privilege
A statutory privilege protects litigants from liability for
litigation conduct. (Civ. Code, § 47.) “The ‘principal purpose’ of
the litigation privilege is ‘to afford litigants and witnesses . . . the
utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions.’ ” (Foothill
Federal Credit Union v. Superior Court (2007) 155 Cal.App.4th
632, 636-637.) “[T]he privilege does not apply to criminal
prosecutions, whether brought pursuant to state statute or local
9.
ordinance.” (Action Apartment Assn., Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1245.)
The privilege applies to protect those who engage in
litigation conduct that has a “logical relation to the action” to
“achieve the objects of the litigation.” (Silberg v. Anderson (1990)
50 Cal.3d 205, 212.) Burnet and Veatch issued subpoenas as part
of normal discovery in the defense of a personal injury action.
(Manela v. Superior Court, supra, 177 Cal.App.4th at p. 1149.)
Burnet declared that her sole purpose was to obtain evidence to
defend West. There is no admissible evidence that they engaged
in criminal conduct or had any unlawful motive.
The litigation privilege consequently protects Burnet and
Veatch from liability for alleged noncompliance with subpoena
service rules and Taft has no private right of action. (Silberg v.
Anderson, supra, 50 Cal.3d at p. 215; Foothill Federal Credit
Union v. Superior Court, supra, 155 Cal.App.4th at pp. 635-636,
638.) The privilege is absolute. (Foothill Federal Credit Union,
at pp. 635-636, 638.) It “bars all tort causes of action except
malicious prosecution.” (Jacob B. v. County of Shasta (2007) 40
Cal.4th 948, 962.) It bars “a privacy cause of action whether
labeled as based on common law, statute, or Constitution.” (Id. at
p. 962, italics added.) It applies to lawsuits claiming deficient
service or noncompliance with subpoena rules. (Id. at p. 959;
Foothill Federal Credit Union, at pp. 634, 638.)
In Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065, the
court held an anti-SLAPP motion was properly granted because
the litigation privilege barred a civil lawsuit against an attorney
alleging counsel filed false declarations of service to obtain a
default judgment. Taft, similar to the Rusheen plaintiff, claims
10.
counsel liability for not serving a subpoena notice. The result in
Rusheen applies here.
Taft contends the application of the litigation privilege
would render the subpoena service requirements of section
1985.3 to be “useless and inoperable.” But in rejecting this claim,
one court said, “We fail to see this as a likely result in light of the
continued existence of opportunities for consumers to quash or
modify subpoenas seeking their personal records.” (Foothill
Federal Credit Union v. Superior Court, supra, 155 Cal.App.4th
at p. 642, fn. 2.) If Taft believes his records were improperly
produced, his remedy is “to seek the return of the erroneously
produced records from the court.” (Id. at p. 642.)
Constitutionality of the Anti-SLAPP Statute
Taft contends section 425.16 is unconstitutional because it
prevented him from litigating his claims. But our Supreme Court
has rejected this claim. In Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 740, footnote 8, the court said it “rejected
the suggestion that the anti-SLAPP statute unduly burdens
plaintiffs’ access to courts.” Taft claims it violates due process
because “the simple filing of a motion to strike shuts down all
discovery.” But discovery is available. (1-800 Contacts, Inc. v.
Steinberg (2003) 107 Cal.App.4th 568, 593.) He claims this
statute interferes with his right to petition. But “ ‘[t]he right to
petition is not absolute, providing little or no protection for
baseless litigation.’ ” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 64.) This statute does not prevent a
plaintiff from pursuing meritorious litigation. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 93.)
11.
Attorney Fees
Taft contends the trial court erred by awarding
respondents $20,025 in attorney fees. We disagree.
The prevailing defendant on an anti-SLAPP motion is
entitled to attorney fees. (§ 425.16, subd. (c)(1).) “We review
attorney fee awards for abuse of discretion.” (Karton v. Ari
Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 743.) “An
experienced trial judge is in the best position to evaluate the
value of professional services rendered in the trial court.” (Ibid.)
Taft claims the amount awarded was excessive. But he has
not cited to the record to show the trial court’s findings on fees
were unreasonable. The motion for fees was supported by a
declaration by counsel that included a detailed specification of
the attorney services and the attorney time spent. Counsel
sought a total award of $32,994 based on an hourly rate of $705
multiplied by 46.8 hours. The court reduced the amount
requested. It found the “reasonable hours spent in bringing the
motion is 44.5 hours at a rate of $450 per hour, for a total of
$20,025 in attorney fees.” The trial court exercised its discretion
in awarding fees. Taft has not shown an abuse of discretion.
(Karton v. Ari Design & Construction, Inc., supra, 61 Cal.App.5th
at p. 743.)
We have reviewed Taft’s remaining contentions and we
conclude he has not shown grounds for reversal.
12.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded in
favor of respondents.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
13.
Henry J. Walsh, Judge
Superior Court County of Ventura
Foster Taft, in pro. per., for Plaintiff and Appellant.
Veatch Carlson, Serena L. Nervez and Clara Porter for
Defendants and Respondents.
14.