Angelo v. Winet CA4/1

Filed 9/18/13 Angelo v. Winet 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTOPHER E. ANGELO et al., D061463
Plaintiffs, Respondents, and Cross-
Appellants,
(Super. Ct. No. 37-2011-00096151-
v. CU-NP-CTL)
RANDALL WINET et al.,
Defendants, Appellants, and Cross-
Respondents.
APPEALS from an order of the Superior Court of San Diego County,
Joel M. Pressman, Judge. Affirmed.
Wingert Grebing Brubaker & Juskie, Charles R. Grebing, Robert M. Juskie and
Andrew A. Servais for Defendants, Appellants, and Cross-Respondents.
Angelo & Di Monda, Christopher E. Angelo and Joseph Di Monda for
Plaintiffs, Respondents, and Cross-Appellants.
Attorneys Christopher E. Angelo, Joseph Di Monda, and the law firm of
Angelo & Di Monda LLP (collectively, A&D) sued attorneys Randall Winet, Marilyn
Perrin, and the law firm of Winet, Patrick & Weaver (collectively, WPW) for actions
undertaken while WPW represented Leonel Arellano in a personal injury action. The
trial court denied WPW's special motion to strike A&D's complaint under Code of
Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public
participation) statute. (All undesignated statutory references are to the Code of Civil
Procedure.) The trial court found that although WPW made a threshold showing that
A&D's complaint arose from protected activity, A&D demonstrated a probability of
prevailing on their claims.
WPW appeal the denial of their motion, arguing A&D did not demonstrate a
probability of prevailing on the merits. In part, WPW maintain A&D cannot prevail
because the crux of A&D's claims are based on communications protected by the
litigation privilege (Civ. Code, § 47, subd. (b)). A&D cross-appeals, contending the
claims set forth in their complaint do not arise from protected activity subject to a
special motion to strike and are not barred by the litigation privilege.
Assuming without deciding that A&D's claims are subject to the anti-SLAPP
law, we conclude A&D demonstrated a probability of prevailing on the merits and
WPW did not defeat that showing as a matter of law. Accordingly, we affirm the
order.
FACTUAL AND PROCEDURAL BACKGROUND
In an underlying lawsuit, Bun Bun Tran sued Arellano, a Mexican citizen, for
injuries arising out of a motor vehicle accident. A&D represented Tran in that action.
Arellano's insurer, Progressive Insurance Company (Progressive), retained WPW to
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represent Arellano's interests. A dispute arose as to whether Progressive had an
opportunity to settle the case for Arellano's policy limit and if it would be responsible
for any over-limits judgment.
Tran requested an assignment of Arellano's bad faith rights against Progressive
in exchange for a covenant not to execute. The parties engaged in discussions
regarding the terms of the covenant but were unable to reach an agreement.
Thereafter, Guillermo Marquez from the Mexican Consulate met with Arellano in
prison. Marquez informed Arellano that Tran's attorney, Angelo, contacted the
Mexican Consulate. At a second meeting, Marquez presented Arellano with a
document and explained the document would assign Arellano's rights in a lawsuit to
Tran. Arellano executed the assignment, and the Mexican Consulate sent it to Angelo.
After obtaining the assignment, Marquez introduced Arellano to attorney
Anthony Kornarens and explained that Kornarens was interested in Arellano's case.
Kornarens had worked with Angelo on other cases. Kornarens asked Arellano to see
all documents relating to Arellano's case, including correspondence from WPW, and
stated he wanted to represent Arellano in a case against WPW. Arellano retained
Kornarens to represent him.
On July 19, 2009, Perrin received a telephone call from Karen Clark, a legal
assistant at A&D. (All further date references are to 2009 unless otherwise specified.)
Clark stated that she left A&D and wanted to tell Perrin about illegal and unethical
conduct in the Tran case. After Perrin and Clark arranged a meeting, Clark stated
Arellano was being "set up." On July 20, A&D rehired Clark. That same day, Perrin
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met with Clark at a hotel. During the meeting, Perrin told Clark not to divulge any
privileged information and then discussed the case with her. Clark explained that
A&D obtained Arellano's assignment by utilizing a political contact in Mexico. Clark
also informed Perrin that Arellano intended to sue WPW, A&D wanted to financially
ruin Winet and his attorneys, and A&D's Mexican contact was now blackmailing
A&D.
Perrin told Winet about her conversations with Clark. On July 22, Winet
informed Progressive that Clark asked WPW to pay for documents that prove Clark's
allegations against A&D. After WPW denied Clark's request for money, Clark stated
she might still give the documents to Perrin. The next day, Winet instructed Perrin to
begin the process of filing a complaint with the State Bar and stated he would look into
potential FBI involvement. On August 4, Winet and Perrin met with two FBI agents
and told the agents about their communications with Clark.
On August 5, Winet visited Arellano in prison. According to Arellano, Winet
brought a copy of Arellano's assignment with him to the meeting. After Arellano
stated that he did not have a copy of the assignment with him, Winet or his assistant
explained they obtained the document from "another source."
On August 6, Perrin met with FBI agents and agreed that the agents would wait
in the parking lot while Perrin met with Clark. According to Perrin, at a meeting with
Clark that day, Clark provided her with Arellano's assignment to Tran. The next day,
Perrin "provided copies of everything [she] received from Clark to [an FBI agent]."
(Italics added.) On August 10, Progressive put a note in its claim file listing several
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documents provided by Clark, including Arellano's assignment, "a memo to file by
Angelo indicating he was contacted by the Consulate," a letter from the Consulate to
Angelo, and "indications of phone calls to Angelo's office."
WPW, on behalf of Arellano, moved to disqualify A&D as Tran's counsel.
WPW asserted A&D indirectly communicated with Arellano through the Mexican
Consulate and Kornarens and improperly obtained an assignment from Arellano.
Winet claimed he learned of the assignment when he visited Arellano in prison on
August 5. The trial court denied the motion.
In October, Arellano sued Progressive for bad faith. During the bad faith
action, A&D learned privileged and confidential documents were missing from its files
and became suspicious that Clark gave A&D's documents to WPW. A&D discovered
that WPW included unsigned A&D pleadings as exhibits to a writ petition. A&D
concluded that Clark gave its files to WPW because there was no way WPW could
have obtained the unsigned pleadings unless it was given copies made directly from
A&D's computer files, and Clark was the only person, other than Angelo and Di
Monda, who had access to those files. A&D also believed WPW gave A&D's
documents to Progressive because Progressive made discovery demands allegedly
targeting the missing documents.
Clark admitted that she removed files from A&D's office, that she gave a copy
of Arellano's assignment to Perrin, and that she copied files from A&D's computers
without their permission. Clark also stated that starting from July 6 to just before the
time she was rehired by A&D, she had approximately 10 communications with Perrin,
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including one face-to-face meeting. After Clark returned to A&D, Perrin called her
and asked to meet. Around August 8, Clark and Perrin had a second face-to-face
meeting. At some point, Perrin asked Clark for documents.
In August 2011, A&D filed an action against WPW, alleging causes of action
for replevin, trespass, trespass to chattels, conversion and injunctive relief. As to each
cause of action, A&D claimed WPW wrongfully possessed or caused Clark to obtain
confidential documents from A&D. A&D sought general and special damages and an
injunction requiring, among other things, WPW "to not refuse to return to [A&D] all
documents taken from the offices of [A&D], all copies of said documents, all notes
made from those documents and all information contained therein."
DISCUSSION
I. WPW's Requests for Judicial Notice
WPW requested that we take judicial notice of a letter, dated September 20,
2011, from Tom Stahl, chief of the civil division in the United States Attorney's
Office, to WPW's counsel. WPW argues the letter explains its inability to obtain a
declaration or evidence from the FBI concerning the FBI's contacts with Perrin. WPW
also requested that we take judicial notice of Tran's opening brief in Arellano v.
Progressive W. Ins. Co. (Mar. 28, 2013, G045674 [unpub. opn.]) (the Progressive
Case) and the court's opinion in that case. We deny WPW's requests.
A. Letter from Stahl to WPW's Counsel
The letter was not presented to the trial court. Generally, documents not before
the trial court are beyond the scope of appellate review. (See Vons Companies, Inc. v.
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Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 (Vons Companies); Pulver v.
Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) Even if we were to take
judicial notice of the document's existence, judicial notice does not extend to its
contents or the truth of the matters stated therein. (Mangini v. R. J. Reynolds Tobacco
Co. (1994) 7 Cal.4th 1057, 1063.)
Lastly, even if we were to assume the matters stated in the letter are true, the
letter does not stand for the proposition WPW asserts. Rather, Stahl's letter merely
states that his advice to the United States Attorney was to deny WPW's request for a
declaration by an FBI agent concerning contact with Perrin. The letter also provides
authority regarding the futility of a subpoena to get the declaration. These matters do
not support WPW's contentions on appeal.
B. Documents from the Progressive Case
Tran's opening brief in the Progressive Case was filed on October 17, 2011.
WPW's anti-SLAPP motion was not heard until February 12, 2012. Accordingly,
WPW had an opportunity to present the brief to the trial court. WPW has failed to
indicate whether Tran's brief was before the trial court and, if so, whether judicial
notice was taken by that court. (Cal. Rules of Court, rule 8.252(a)(2)(B).) The
document is not in the appellate record; thus, we presume it was not presented to the
trial court and deny WPW's request for judicial notice. (Vons Companies, supra,
14 Cal.4th at p. 444, fn. 3.)
We also deny WPW's request for judicial notice of the unpublished opinion in
the Progressive Case. That opinion pertains to Arellano's bad faith action against
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Progressive. The court affirmed the trial court's decision denying Arellano's motion
for summary adjudication and reversed the trial court's decision finding Progressive
did not breach a duty to accept a settlement demand from Tran's attorney. The opinion
in the Progressive Case is not relevant to our determination of the issues on appeal.
II. Burden of Proof and Standard of Review
A cause of action arising from a constitutionally protected right of free speech
may be stricken unless the plaintiff establishes the probability he or she will prevail on
the claim. (§ 425.16, subd. (b)(1).) The court must first determine whether the
defendant bringing the special motion to strike made a prima facie showing that the
activity underlying the cause of action is constitutionally protected. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant
establishes this, the burden shifts to the plaintiff to show the likelihood of prevailing
on the cause of action. (Ibid.) In order to establish a probability of prevailing, a
plaintiff must substantiate each element of the alleged cause of action through
competent, admissible evidence. (DuPont Merck Pharmaceutical Co. v. Superior
Court (2000) 78 Cal.App.4th 562, 568.) " 'An assessment of the probability of
prevailing on the claim looks to trial, and the evidence that will be presented at that
time.' " (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.
(2003) 106 Cal.App.4th 1219, 1236, italics omitted.) "Thus, declarations that lack
foundation or personal knowledge, or that are argumentative, speculative,
impermissible opinion, hearsay, or conclusory are to be disregarded." (Gilbert v.
Sykes (2007) 147 Cal.App.4th 13, 26.)
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In ruling on an anti-SLAPP motion, the court does not weigh the evidence or
make credibility determinations; rather, once the plaintiff makes a prima facie showing
of facts which would support a judgment in his or her favor, the court considers the
defendant's opposing evidence, but only to determine if it defeats the plaintiff's
showing as a matter of law by establishing an absolute defense to the claim or the
absence of an element of the cause of action. (Kashian v. Harriman (2002) 98
Cal.App.4th 892, 906.) "If the plaintiff 'can show a probability of prevailing on any
part of its claim, the cause of action is not meritless' and will not be stricken." (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) The plaintiff need only
show a case of " 'minimal merit,' " a burden which is " 'not high.' " (Grewal v. Jammu
(2011) 191 Cal.App.4th 977, 989 (Grewal).) We conduct a de novo review of the trial
court's ruling on a special motion to strike. (Lam v. Ngo (2001) 91 Cal.App.4th 832,
845.)
III. A&D Met its Burden
WPW argues the trial court erred in finding A&D showed a probability of
prevailing on the merits of their claims. Assuming without deciding that WPW met its
burden to show A&D's claims are subject to the anti-SLAPP law, we conclude A&D
produced sufficient evidence that, if credited, shows a reasonable probability of
prevailing and WPW has not defeated that showing as a matter of law.
Preliminarily, we note that both sides submitted declarations to support their
positions that were replete with speculation, hearsay and other infirmities. We
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disregard the inadmissible statements in those declarations in our consideration of the
issues on appeal.
A&D's complaint sets out claims for replevin, trespass, trespass to chattels,
conversion and injunctive relief. WPW does not challenge the adequacy of the
evidentiary showing on any of the affirmative elements of A&D's claims. Instead,
WPW asserts A&D could not demonstrate probable success on the merits because
WPW's activities were absolutely privileged under Civil Code section 47 as they were
either done in connection with an official proceeding or involved the FBI.
Here, the parties have differing views regarding the gravamen of A&D's claims.
A&D characterize their claims as involving WPW's illegal acts of receiving stolen
documents. WPW, on the other hand, characterize their conduct as communications
with the FBI and State Bar and in anticipation of moving to disqualify A&D and set
aside Arellano's assignment. On close analysis of the complaint, it appears A&D went
to great lengths to frame their claims as property torts. In its general allegations, A&D
sets forth WPW's alleged wrongful conduct, including communications with Clark,
receipt of A&D's privileged and confidential documents, use of A&D's documents in
the Tran litigation, and reports to the FBI and State Bar. However, the principal
activities underlying A&D's causes of action include WPW's retention of A&D's
privileged and confidential documents, disclosure of the documents to third parties,
and conspiring with Clark to enter A&D's property and take privileged and
confidential documents.
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"[O]nce a plaintiff shows a probability of prevailing on any part of its claim, the
plaintiff has established that its cause of action has some merit and the entire cause of
action stands. Thus, a court need not engage in the time-consuming task of
determining whether the plaintiff can substantiate all theories presented within a single
cause of action and need not parse the cause of action so as to leave only those
portions it has determined have merit." (Mann v. Quality Old Time Service, Inc.
(2004) 120 Cal.App.4th 90, 106.) If credited, A&D's evidence supports at least part of
their claims. Specifically, A&D's evidence reveals that Perrin met with Clark and
potentially obtained documents from her prior to any direction from the FBI to do so.
Clark claimed she had approximately 10 communications with Perrin between
approximately July 6 to July 20 and, at some point, Perrin asked her for documents.
Clark also admitted to removing files from A&D's office, providing Arellano's
assignment to Perrin, and copying files from A&D's computers without their
permission. A few days after Perrin's second meeting with Clark, Progressive put a
notation in its claim file listing documents provided by Clark. Later, WPW included
unsigned A&D pleadings as exhibits to a writ petition, and Progressive made
discovery demands targeting A&D's missing documents. These facts suggest WPW
went beyond communicating with the FBI and following its directions because it
retained copies of A&D's documents and disclosed them to Progressive. As such,
A&D's claims have at least the requisite " 'minimal merit' " to survive an anti-SLAPP
motion. (Grewal, supra, 191 Cal.App.4th at p. 989.)
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Thus, we next consider whether A&D's claims are barred by the litigation
privilege. "The privilege in [Civil Code] section 47 is 'relevant to the second step in
the anti-SLAPP analysis in that it may present a substantive defense plaintiff must
overcome to demonstrate a probability of prevailing.' " (Rohde v. Wolf (2007) 154
Cal.App.4th 28, 38.) Civil Code section 47 provides the following: "A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial
proceeding, (3) in any other official proceeding authorized by law, or (4) in the
initiation or course of any other proceeding authorized by law and reviewable pursuant
to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil
Procedure . . . ."
A number of cases have considered whether the litigation privilege extends to
noncommunicative conduct. In Kimmel v. Goland (1990) 51 Cal.3d 202, 205
(Kimmel), our high court determined whether the privilege applied to unlawful
recording of telephone conversations made in anticipation of litigation. Relying on an
earlier case in which the court found an attorney could not avoid liability for unlawful
eavesdropping on a phone conversation, but was immune from suit for his subsequent
testimony regarding the conversation (Ribas v. Clark (1985) 38 Cal.3d 355, 364–365
(Ribas)), the Kimmel court concluded the litigation privilege did not apply because
plaintiffs alleged they suffered injury from the recording of confidential conversations,
"not from any 'publication' or 'broadcast' of the information contained in [those]
conversation." (Id. at p. 209.) In reaching this conclusion, the court distinguished
between communicative and noncommunicative acts and reasoned that "an extension
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of [Civil Code] section 47(2) to unlawful conduct undertaken to obtain evidence in
anticipation of litigation, would lead to unacceptable consequences. Suppose, a
prospective defendant kept important documents at home. If a prospective plaintiff, in
anticipation of litigation, burglarized defendant's premises in order to obtain evidence,
plaintiffs here would apparently apply the privilege to protect the criminal conduct.
Such an extension of [Civil Code] section 47(2) is untenable." (Id. at p. 212.)
In contrast, in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1049 (Rusheen), our
high court found that conduct undertaken to collect a judgment, such as obtaining a
writ of execution and levying on a judgment debtor's property, were protected by the
litigation privilege. The Rusheen court explained that '' '[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.
[Citations.] [¶]' . . . Thus, 'communications with "some relation" to judicial
proceedings' are 'absolutely immune from tort liability' by the litigation privilege
[citation]. It is not limited to statements made during a trial or other proceedings, but
may extend to steps taken prior thereto, or afterwards. [Citation.] [¶] Because the
litigation privilege protects only publications and communications, a 'threshold issue
in determining the applicability' of the privilege is whether the defendant's conduct
was communicative or noncommunicative. [Citation.] The distinction between
communicative and noncommunicative conduct hinges on the gravamen of the action.
[Citations.] That is, the key in determining whether the privilege applies is whether
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the injury allegedly resulted from an act that was communicative in its essential
nature." (Id. at pp. 1057–1058.) This emphasis on the gravamen of the action has
been followed in subsequent cases. (See, e.g., Jacob B. v. County of Shasta (2007)
40 Cal.4th 948, 957 (Jacob B.) [finding letter written by supervisor of victim witness
program in connection with a family law proceeding regarding visitation rights was a
communicative act protected by the litigation privilege]; Action Apartment Assn., Inc.
v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249 [litigation privilege applies to
filing of a legal action]; Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 616–
617 [litigation privilege barred employee's retaliation claim because the gravamen of
her action was based on an investigation and report that were communicative acts].)
In our view, the conduct at issue in this case is more similar to the type of
nonprivileged conduct at issue in Ribas and Kimmel than the type of acts which fell
under the litigation privilege in Rusheen and Jacob B. Here, the alleged wrongful
activity underlying A&D's claims—trespass and retention and disclosure of A&D's
documents—is noncommunicative in nature. A&D seek an injunction and damages
resulting from WPW's acts of conspiring with Clark to trespass on A&D's property,
keeping A&D's documents, making copies of those documents, and providing them to
third parties such as Progressive. Although A&D reference WPW's communications
with Clark and the FBI, those allegations are not vital to A&D's causes of action.
If A&D had sued WPW for injuries resulting from WPW's communications
with the FBI and State Bar or for conduct undertaken at the FBI's direction, its
litigation privilege defense may have been more viable. However, as we noted, A&D
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carefully crafted its complaint to assert property claims that fall outside the scope of
litigation related activity. Given that the gravamen of this case was
noncommunicative conduct, the litigation privilege does not apply.
DISPOSITION
The order denying WPW's anti-SLAPP motion to strike is affirmed. A&D shall
recover costs on appeal.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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