2018-00228378-CU-FR

William J. Carlisle vs. Donna DeCuir

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Sommer, Jason J.

Defendant Donna DeCuir dba Law Office of Donna DeCuir’s (“DeCuir”) special anti-

SLAPP motion to strike the entirety of plaintiff in pro per Carlisle’s complaint is
GRANTED, as follows.

Factual Background

This action arises from the marital dissolution proceedings between plaintiff and his wife. Plaintiff, a licensed attorney, for the most part represented himself while his wife was primarily represented by defendant DeCuir. It appears the dissolution proceedings in El Dorado County were rather contentious in numerous respects.

On 2/2/2017 an interim order was entered which in pertinent part directed that an bank account of plaintiff’s containing just over $42,000 be transferred to DeCuir, who was to hold the funds in trust for plaintiff’s wife “for payment of [wife’s] spousal support, support arrears and attorney’s fees, in that order.” According to DeCuir, her client thereafter authorized in writing the disbursement of nearly $15,000 on 2/14/2017, roughly $18,200 on 3/2/2017, nearly $5,200 on 4/4/2017, and roughly $3,200 on 5/3/2017 all for the payment of attorney fees incurred on behalf of plaintiff’s wife, thereby exhausting the entire balance of the funds in the transferred account.

The El Dorado County Court issued its Statement of Decision on 1/4/2018 and the complaint alleges the Court therein ordered that the funds held in trust be transferred to plaintiff within 30 days. Plaintiff now asserts that none of the trust funds has been transferred and that DeCuir has refused to provide any information regarding the current status of the trust account.

The complaint filed on 3/5/2018 purports to allege against DeCuir only causes of action for breach of fiduciary duty, fraud, unfair trade practices, embezzlement, unjust enrichment, professional malpractice and breach of the implied covenant of good faith and fair dealing.

Moving Papers. Defendant DeCuir now moves to strike the entirety of plaintiff’s complaint on the ground it arises from DeCuir’s conduct in furtherance of the exercise of her constitutional right to petition for relief on behalf of her clients so as to fall within the protections afforded by the provisions of Code of Civil Procedure §425.16(e), thereby requiring plaintiff to establish a “probability of prevailing” on the various causes of action alleged in the complaint in order to prevent the latter from being stricken in its entirety pursuant to §425.16(b). DeCuir further asserts that plaintiff cannot establish a “probability of prevailing” on any of the causes of action alleged because none of the conduct on which the complaint is based is actionable in light of the broad protections afforded by not only the litigation privilege but also the Noerr-Pennington doctrine, the latter of which immunizes conduct encompassed by the First Amendment’s right to petition clause from virtually all forms of civil liability. (See, e.g., Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1064-1065.)

Opposition. In response to DeCuir’s anti-SLAPP motion plaintiff filed what is labeled an “Objection” which consists primarily of a recitation of various events occurring in the underlying dissolution proceedings, adding that virtually every filing by DeCuir in these proceedings included a request for attorney fees but only once did the El Dorado County Court award them (in the amount of $800). Beginning on Page 8 of the “Objection,” plaintiff ultimately turns to the merits of this motion and insists this lawsuit does not arise from DeCuir’s legal representation in the earlier action but rather DeCuir’s “surreptitious use of trust funds for the only purpose of illegally enriching [herself]…without the consent or knowledge of either the Court or the person whose funds she was ordered to hold in trust.” The “Objection” concludes by claiming the El Dorado County Court’s directed that the funds in the subject trust account should be returned to plaintiff.

This court notes that the “Objection” nowhere addresses in any meaningful fashion the authorities offered in the moving papers, the litigation privilege or the Noerr-Pennington doctrine on which this motion is based and other than attaching copies of various orders and filings in the dissolution action, plaintiff submitted no evidence whatsoever in opposition to DeCuir’s anti-SLAPP motion.

Objections to Evidence

DeCuir’s objections to plaintiff’s evidence are sustained.

Analysis

Defendant’s Initial Burden. At the outset, the court notes that the Legislature expressly declared in Code of Civil Procedure §425.16(a) that the anti-SLAPP statute “shall be construed broadly” so as “to encourage continued participation in matters of public significance” and to ensure “this participation should not be chilled through abuse of the judicial process.” With this key provision in mind, the threshold question here is whether the conduct alleged in plaintiff’s complaint arises from conduct falling within the protections of Code of Civil Procedure §425.16(e), which provides in its entirety:

As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (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. (Underline added for emphasis.)

Construing these provisions broadly as mandated by the Legislature, this court is persuaded that the protections of the anti-SLAPP statute are indeed applicable to the present action and this conclusion is reinforced by at least two recent appellate decisions discussed in the moving papers.

First, in Bergstein v. Stroock & Stroock & Lavan, LLP (2015) 236 Cal.App.4th 793, the Bergstein plaintiffs sued the lawyers who represented their adversaries in prior litigation relating to various financial transactions, claiming that the defendant lawyers engaged in illegal conduct when they “solicited and received…confidential, privileged, and/or proprietary information” from plaintiffs’ own former attorney and used this information “in devising the legal strategy to be employed” in the litigation against the Bergstein plaintiffs. The defendant lawyers filed an anti-SLAPP motion to strike the complaint on the ground that the allegations arose from protected First Amendment activity encompassed by the right to petition and the trial court’s order granting the motion was affirmed. The court of appeal explained that under the SLAPP statute, statements made in litigation or in connection with litigation are protected and “Courts have taken a fairly expansive view of what constitutes litigation-related activity for purposes on section 425.16,” clarifying that the allegations must be “based on” the protected petitioning activity and determination of the gravamen of the claims requires examination of the specific acts of wrongdoing rather than just the form of the claims.

While the Bergstein plaintiffs maintained that they were not suing defendants merely for being their adversary’s litigation counsel or for any statement made in the litigation

but rather for “the unprotected conduct of aiding and abetting the breach of [plaintiffs’ former attorney’s] fiduciary duties…, for receiving confidential and privileged information belonging to [plaintiffs], for interfering with [plaintiffs’ former attorney’s] contractual obligation to [plaintiffs] to maintain their confidences, and for interfering with [plaintiffs’] prospective economic advantage,” the court of appeal found “Plaintiffs’ own words reveal[ed] their mistaken view of the applicable legal principles”:

“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.) Thus we examine ‘the specific acts of wrongdoing’ alleged, ‘without particular heed to the form of action within which it has been framed’ (Peregrine Funding, supra, 133 Cal.App.4th at p. 671), and ‘the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]’ (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78).”

(Bergstein, at 811.)

Applying this standard, the court of appeal determined that almost all of the specific allegations of wrongdoing were “litigation activities” and unlike any of the breach of loyalty cases cited in opposition, the activity giving rise to defendants’ asserted liability is their conduct in receiving and using confidential information to prepare for and prosecute litigation against plaintiffs, revealing that defendants’ litigation activities are at the core of plaintiffs’ claims and are protected activity within the meaning of the anti-SLAPP statute. (Bergstein, at 813.)

Similarly, in Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, the plaintiff sued defendant attorneys for conversion, receipt of stolen property and injunctive relief based on defendants’ receipt of an allegedly stolen hard drive containing information pertinent to a pending case in which defendants were the attorneys of record. The defendants successfully moved to dismiss the action based on the anti-SLAPP statute, arguing the litigation privilege applied and the complaint failed to state a cause of action as a matter of law, and the trial court’s ruling was affirmed on appeal.

The court of appeal, at the outset, noted that the action against defendant attorneys was “a particularly egregious SLAPP filed…for the sole ‘crime’ of representing their clients in the underlying action,” a meritless suit primarily to chill the defendants’ exercise of First Amendment rights. (Finton Construction, at 204-205, 208.) Emphasizing that the anti-SLAPP statute broadly protects all conduct in furtherance of the exercise of the rights to petition and free speech, the court explained that the initial question is whether the acts about which plaintiff complains were taken in furtherance of defendant’s right of petition or free speech and that in this instance, the answer is a “very easy one in the instant case” since any act in furtherance of the right to petition “includes communicative conduct such as the filing, funding, and prosecution of a civil action” as well as “qualifying acts committed by attorneys in representing clients in litigation.” (Finton Construction, at 210 (citing Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056) (underline added for emphasis).) “Under the anti-SLAPP statute and related case law, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Id. (citing Cabral v.

Martins (2009) 177 Cal.App.4th 471, 479-480) (underline added for emphasis).) Accordingly, the court had no difficulty finding that the acts alleged all arose from defendants’ representation of their clients in the underlying case especially since the only reason the hard drive was turned over to the defendants is because they were counsel in that matter and the only reason defendants are being sued is because they refused to unconditionally return the hard drive.

In light of the foregoing authorities and defendant DeCuir’s unquestionable right to be paid for providing legal services to her client, this court concludes that DeCuir is effectively being sued for having represented plaintiff’s wife in the dissolution proceedings and more specifically, for being paid for such representation from the funds in the subject trust account, something which the 2/2/2017 order explicitly permitted. This conclusion is reinforced by the Legislature’s express mandate that the anti-SLAPP statute be construed broadly to protect First Amendment rights and to ensure the exercise of these constitutional rights not be chilled through frivolous litigation.

Additionally, as noted above, plaintiff’s “Objection” to the present motion offers no discernible justification for reaching a different conclusion and fails to meaningfully address any of the numerous appellate decisions advanced in the moving papers.

Still, to the extent plaintiff’s complaint attributes to defendant DeCuir a variety of illegal conduct in connection with the subject trust account, this alone does not render the anti-SLAPP statute inapplicable. In Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, the court of appeal explained that mere allegations that defendants acted “illegally” do not automatically render the anti-SLAPP statute inapplicable:

For instance, the First Amendment does not protect defamation, yet defamation suits are a prime target of anti-SLAPP motions. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.) “The Legislature did not intend that…to invoke the special motion to strike the defendant must first establish her [or his] actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the inquiry as to whether the plaintiff has established a probability of success would be superfluous.” (Ibid.) “When a cause of action arises from constitutionally protected speech, section 425.16 applies and the question of whether the speech is [not protected] must be examined when plaintiff demonstrates a probability of success on the merits.” ( Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 420.)

If the defendant concedes or the evidence conclusively establishes the conduct complained of was illegal, as a matter of law the defendant cannot make a prima facie showing the action arises from protected activity within the meaning of section 425.16. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 459.) Defendants, however, have not conceded they committed any illegal acts, and we conclude that with a minor exception the evidence does not show illegality as a matter of law.

(Huntingdon Life Sciences, Inc., at 1246 (italics in original; underline added for emphasis).)

In the present case, defendant has certainly not “conceded” she engaged in any conduct that was “illegal” and none of the evidence now before this court so much as suggests that any defendant’s conduct was “illegal” as a matter of law. In fact, the evidence now in the record uniformly indicates that defendant DeCuir was judicially authorized to withdraw from the trust account funds necessary to cover the attorney fees incurred in connection with the representation of plaintiff’s wife in the dissolution action.

In the end, the court holds that defendant DeCuir has met her initial burden of showing the complaint in this action indeed arises from conduct falling within the broad protections afforded by the anti-SLAPP statute and has thereby shifted to plaintiff the burden to establish a “probability of prevailing” on at least one of the causes of action alleged in order to avoid the entire complaint from being stricken.

Plaintiff’s Burden of Showing “Probability of Prevailing.” Under current law, plaintiff must to defeat the present special motion to strike establish a “probability of prevailing” on at least one of the alleged causes of action and to do this, plaintiff must show not only that the causes of action are adequately pled (“legally sufficient”) but also produce admissible evidence sufficient to establish each of the prima facie elements of the claim. (See, e.g., Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385; Burrill v. Nair (2013) 217 Cal.App.4th 357, 379-380; Navarro v. IHOP Properties (2005) 134 Cal.App.4th 834, 843-844.) The court finds that plaintiff has here failed to demonstrate either component of his burden.

First, plaintiff has failed to demonstrate that any of the causes of action alleged in the complaint are “legally sufficient.” The cause of action for breach of fiduciary duty is patently deficient since defendant DeCuir clearly owed no fiduciary duty to plaintiff, her opponent in the dissolution action; rather, her only fiduciary duty was owed to her own client. Likewise, the professional negligence claim fails as a matter of law since DeCuir owed no duty of care to plaintiff but only to her own client. The fraud cause of action does not come close to meeting the heightened pleading standard for fraud (i.e., factual particularity) and regardless, does not identify a single representation of fact by DeCuir nor any out-of-pocket damages suffered by plaintiff as a proximate result of his reasonable, justifiable reliance on DeCuir’s representation. The claim for unfair trade practices does not withstand scrutiny since this claim appears to be premised on the provisions of Business & Professions Code §17200 et seq. and since under California law, all statutory claims such as those under §17200 must be pleaded with particularity

, showing every fact essential to the existence of liability under the relevant statute. (See, Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 790 (citing Lopez v. Southern Cal. Rapid Trans. Dist. (1985) 40 Cal.3d 780, 795) (emphasis added).) The unfair trade practices claim contains no facts at all and does not allege any actual injury as result of any specific unlawful, unfair or fraudulent conduct. California law does not recognize any cause of action for embezzlement or for “unjust enrichment.” (See, e.g., Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [“[T]here is no cause of action in California for unjust enrichment. … Unjust enrichment is ‘a general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself. (Dinosaur Development, Inc. v. White (1989) 216 Cal. App.3d 1310, 1315.) It is synonymous with restitution. (Id., at p. 1314.)”].) Finally, the breach of implied covenant claim fails in the absence of some valid, enforceable contract which is not alleged in the complaint. Accordingly, the court finds that the complaint as alleged is insufficient to state a single valid cause of action against DeCuir and this alone is fatal to the complaint.

Second, even assuming there were at least one cause of action which is adequately pled, plaintiff has (other than attaching various orders from the El Dorado County Court) offered no evidence to prove any of his various claims against DeCuir. Thus, plaintiff has failed to produce evidence sufficient to establish a single prima facie cause of action against defendant DeCuir and has necessarily failed to satisfy his burden of demonstrating a “probability of prevailing” on any of the alleged causes of action, which must therefore be stricken pursuant to Code of Civil Procedure §425.16. (See, e.g., Baral, at 384-385.)

Third, this court concludes that plaintiff has no “probability of prevailing” on any of the causes of action alleged in light of the litigation privilege. As explained in Finton Construction, the litigation privilege was originally enacted to preclude defamation claims but it is “now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.]” ( Finton Construction, at 211-212.) Further, “The breadth of the litigation privilege cannot be understated” as it “immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution” and “Any doubt about whether the privilege applies is resolved in favor of applying it.” (Id., at 212 (citing Olsen v. Harbison (2010) 191 Cal.App.4th 325, 333; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913).) Indeed, a broad range of conduct has been determined by courts to be within the scope of the privilege, including activity preparatory to litigation. (Id. (citing Gootee v. Lightner (1990) 224 Cal.App.3d 587, 589 [administering of psychological testing and destroying raw data within scope of privilege]; Scalzo v. Baker (2010) 185 Cal.App.4th 91, 102 [materials obtained illegally by litigants and turned over to attorneys deemed subject to privilege].) Plaintiff’s “Objection” made no attempt to address the litigation privilege and the broad protections it provides.

Finally, plaintiff’s claims against DeCuir are also barred by the Noerr-Pennington doctrine which immunizes conduct encompassed by the First Amendment’s right to petition clause from virtually all forms of civil liability. Again, plaintiff failed to address defendant’s reliance on this theory and because this court finds nothing improper about DeCuir’s withdrawing funds from the trust account to cover the attorney fees she incurred on behalf of her client (something expressly permitted by the 2/2/2017 order), this court concludes that plaintiff has no a “probability of prevailing” on any of the causes of action currently alleged against DeCuir. Consequently, the entirety of the complaint must be stricken pursuant to the explicit language of Code of Civil Procedure §425.16.

Conclusion

For the reasons explained above, defendant DeCuir’s anti-SLAPP motion is granted as to plaintiff’s complaint. As a general rule, leave to amend is not given when a motion to strike pursuant to Code of Civil Procedure §425.16 is granted because that would be inconsistent with the remedy otherwise provided by the anti-SLAPP statute. (See, e.g., Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.)

Having prevailed on this special motion to strike, defendant is entitled to an award of attorney fees and costs pursuant to Code of Civil Procedure §425.16(c)(1) and may seek same by noticed motion.