CIV537691 AMBER LAUREL BAPTISTE VS. MICHAEL LEWIS GOGUEN

AMBER LAUREL BAPTISTE MICHAEL LEWIS GOGUEN
PRO/PER DIANE M. DOOLITTLE

DEFENDANT/CROSS-COMPLAINANT MICHAEL GOGUEN’S MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendant/Cross-Complainant Michael Goguen’s Motion for Summary Judgment, filed 11-21-18, directed to (a) Plaintiff/Cross-Defendant Amber Baptiste’s 11-26-18 First-Amended Complaint alleging breach of contract, and (b) Goguen’s 11-19-18 Third-Amended Cross-Complaint (TACC) alleging, inter alia, fraud and extortion, is DENIED. Code Civ. Proc. § 437c. Goguen’s alternative Motion for Summary Adjudication (see 11-21-18 Notice of Motion, identifying Issues Nos. 1-4), is also DENIED, for the reasons explained below.

As a preliminary matter, Goguen’s Reply brief argues that because Baptiste’s 1-25-19 responsive Separate Statement does not cite to any evidence, as a matter of law, it cannot raise any triable issue of material fact. See Reply at 2. However, Baptiste’s responsive Separate Statement includes “Additional Disputed Material Facts,” which includes citations to evidence. Further, the “Golden Rule of Summary Adjudication” cited by Goguen is permissive, not mandatory. San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315-16. It provides the Court with the discretion to ignore evidence not identified in the Separate Statement. Id. The Court can, however, consider evidence in the record that it knows to exist, even if not cited in the Separate Statement. Id.

As further explained below, while Goguen may ultimately have meritorious claims for both fraudHPV and extortion, the Court declines to adjudicate these causes of action/defenses as a matter of law.

ISSUE No. 1—Goguen’s “Fraud-HPV” claim (see 11-21-18 Notice of Motion)

As to Goguen’s TACC’s Second Cause of Action for “Fraud-HPV” (see Notice of Motion, Issue No. 1), the Motion for Summary Adjudication is DENIED. Fraud requires proof of (a) a misrepresentation (here, Baptiste’s and/or her prior counsel’s 2014 statement(s) to Goguen regarding the human papillomavirus (HPV)); (b) knowledge of falsity; (c) intent to defraud/induce reliance; (d) justifiable reliance; and (e) resulting damage (i.e., proof that the misrepresentation was a “substantial factor” in causing Goguen to pay the money). CACI 1900; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (actual reliance occurs where, absent the misrepresentation, Plaintiff would not, in all reasonable probability, have entered into the contract); CACI 1907 (the misrepresentation need not be the only reason [that Goguen signed the contract/paid the money], but it must have substantially influenced him, such that he probably would not have done so absent the misrepresentation); Okun v. Morton (1988) 203 Cal.App.3d 805, 828 (Plaintiff must show actual reliance on the false statement). An inference of reliance arises where a misrepresentation was “material,” but materiality is generally a question of fact. Engalla, 15 Cal.4th at 977; Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301, 312–313 (“materiality is a jury question”); Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1067 (except in rare cases, reliance is a question of fact); Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008 (“If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.”).

Here, the Court cannot summarily adjudicate Goguen’s fraud-HPV claim, particularly the elements of reliance and causation, which normally present issues of fact. As noted above, while the asserted [HPV] misrepresentation(s) need not be the sole reason Goguen signed the agreement and paid the money, it/they must have been a substantial factor in causing the alleged harm/damage. The record here includes evidence that raises a triable issue as to whether Goguen would have signed the agreement and paid the money absent Baptiste’s HPV-related statements. As Goguen has noted, Baptiste accused him of “rape, pedophilia, transmission of [HPV], and other atrocities.” Reply Br. at 1; TACC, ¶¶18, 22-23, 28-29 (discussing Baptiste’s “heinous allegation” of rape). Goguen stated he was sensitive to public disclosure of claims that could have affected his family and reputation. TACC, ¶35. Arguably, the mere thought/possibility of having an extramarital relationship exposed would have been enough, in itself, to prompt the payment. See UMF 5 (discussing Baptiste’s statement to her former attorney—“Don’t worry to [sic] much about the contents of the complaint. The threat of even a slight scandle [sic] could be enough for his partners to ask him to leave the firm.”). Thus, while Baptiste’s HPV-related statements may indeed have been a “substantial factor” in causing Goguen to sign the 2014 agreement and pay the money, as this Court previously stated, that determination is for the trier of fact. See 9-26-18 Order denying Baptiste’s Motion for Summary Adjudication of Goguen’s fraud claim (“… the evidence creates a triable issue as to whether Baptiste’s alleged fraud … substantially influenced Goguen’s decision to sign the 2014 settlement … the Court cannot resolve these factual issues as a matter of law.”).

ISSUE No. 2—Goguen’s extortion claim (see 11-21-18 Notice of Motion)

As to the TACC’s First Cause of Action for extortion (see Notice of Motion, Issue No. 2), the Motion for Summary Adjudication is DENIED.

For the same reason(s) discussed above relating to the fraud-HPV claim, the evidence creates a factual dispute regarding causation that precludes summary adjudication of Goguen’s extortion claim. To prevail on this cause of action, Goguen must do more than establish that Baptiste made extortionate statements/threats. As with the fraud claim, the statements/threats must have caused the alleged damage; they must have been a substantial factor in causing/inducing Goguen to sign the agreement and pay the money. Here, viewing the evidence in Baptiste’s favor and drawing all reasonable inferences against Goguen (as the Court, on summary judgment, must do), a factual dispute exists as to whether Goguen would have paid the money absent any extortion.

Further, Baptiste offers evidence that raises a triable issue as to whether she induced Goguen’s consent to the agreement by “a wrongful use of force or fear.” Pen. Code § 518. Drawing inferences from the evidence in Baptiste’s favor, Goguen’s behavior both prior to and at the time of contract arguably appears inconsistent with that of a person acting under duress/fear, which raises a fact question as to whether Goguen consented to the agreement in response to Baptiste’s wrongful use of force or fear. Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (civil extortion “is essentially a cause of action for moneys obtained by duress …”). By way of example, the settlement agreement appears to have been highly negotiated. Goguen, in conjunction with his counsel, personally drafted/edited several provisions of the agreement. See 1-29-19 Amended Paoli Decl., Ex. A (ALB000389, 393, 397, 507, 571-3, 583, 611-12). Goguen stated he personally made changes to the agreement to make it more enforceable by Baptiste (his alleged extorter), and Goguen arranged for a notary to be present at the signing to further legitimize it. Id. at ALB000390, 397, 611, 640, 648-50, 652-3. Goguen also appears to have been the primary party advocating in favor of the agreement, and appears to have been on oddly cordial terms with Baptiste (again, the alleged extorter) before, during, and after signing. At the time of the alleged extortion, Goguen repeatedly professed his love for Baptiste, and expressed a feeling of gratitude for being on her “team.” Id. at ALB000384-6, 389, 401, 406-7, 409, 414, 430, 507, 509, 586-7. Given this evidence, arguably, the facts here differ substantially from the facts in Flatley v. Mauro (2006) 39 Cal.4th 299, cited by Goguen, where the extorting party demanded an immediate signature on the agreement and the immediate payment of money or else terrible allegations would be made public, and where the extorting party outright refused to discuss/negotiate any terms of the agreement.

Further, while not raised in the opposing papers, the extent to which the Civ. Code § 47(b) litigation privilege applies to Baptiste’s alleged extortionate statements (if at all) may hinge on the underlying factual question of whether Baptiste’s statements/threats had “some relation to a proceeding that [was] contemplated in good faith and under serious consideration.” Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1378; Flatley v. Mauro, supra, 39 Cal.4th at 322, 325 (even extortionate, pre-litigation statements may potentially be subject to the § 47(b) privilege). Although the Court declined to apply the litigation privilege in the context of Baptiste’s anti-SLAPP motion (see 4-10-17 Order), that finding was based on the evidence presented at that time. Whether the lawsuit (or any portion of it) that Baptiste threatened to file in 2014 was contemplated “in good faith and under serious consideration,” and whether her 2014 statements, in whole or in part, had “some relation” to the threatened litigation, present factual issues. Eisenberg, supra, 74 Cal.App.4th at 1379–1380; Strawn v. Morris Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087. Even if the § 47(b) privilege cannot apply to Baptiste’s HPV-related statements because, as Goguen argues, she knew them to be false, it could still potentially apply to her other statements/threats.

ISSUE No. 3 (see 11-21-18 Notice of Motion)

For the same reason(s) discussed above under Issue No. 2 (TACC’s First Cause of Action for extortion), the Motion for Summary Adjudication as to Goguen’s Second affirmative defense of extortion (Notice of Motion, Issue No. 3) is DENIED.

ISSUE No. 4 (see 11-21-18 Notice of Motion)

For the same reason(s) discussed above under Issue No. 1 (TACC’s First Cause of Action for fraudHPV), the Motion for Summary Adjudication as to Goguen’s Eighth affirmative defense of fraud (Notice of Motion, Issue No. 4) is DENIED.

Rulings on Objections

Goguen’s Objection to the Paoli declaration is SUSTAINED-IN-PART and OVERRULED-INPART. Attorney Paoli submitted two declarations, one filed 1-25-19, and an Amended Declaration filed 1-29-19. Goguen’s objection does not expressly refer to the Amended Declaration, and it is unclear whether Goguen has objected to the attached documents (text messages). The objection to Mr. Paoli’s characterization(s) of the attached documents is SUSTAINED. Evid. Code §§ 702(a), 800. Any objection to the attached documents, however, is OVERRULED. Goguen already offered these same documents into evidence. See 11-21-18 Decl. of Bruce Van Dalsem, Ex. 1. Further, the text messages are Bates-stamped and were apparently produced in discovery. Goguen has not disputed their authenticity.

Goguen’s Objections (Nos. 1-4) to the 1-25-19 Baptiste declaration are SUSTAINED. Code Civ. Proc. § 2015.5.

Goguen’s Objections to the 1-30-19 Baptiste declaration are ruled upon as follows (the objection to the declaration in its entirety is OVERRULED):

Obj. No. 1. OVERRULED. Obj. No. 2. SUSTAINED. Evid. Code §§ 702(a), 720, 800-801. Obj. No. 3. SUSTAINED. Evid. Code §§ 702(a), 800. Obj. No. 4. SUSTAINED. Evid. Code § 403. Obj. No. 5. SUSTAINED. Evid. Code §§ 702(a), 800-801. Obj. No. 6. OVERRULED. Obj. No. 7. SUSTAINED. Evid. Code §§ 720, 800-801. Obj. No. 8. SUSTAINED. Evid. Code §§ 720, 800-801. Obj. No. 9. OVERRULED. Obj. No. 10. OVERRULED. Obj. No. 11. OVERRULED. Obj. No. 12. SUSTAINED. Evid. Code § 403. Obj. No. 13. OVERRULED. Obj. No. 14. OVERRULED. Obj. No. 15. OVERRULED. Obj. No. 16. OVERRULED.

Obj. No. 17. OVERRULED. Obj. No. 18. SUSTAINED as to the first portion of the sentence (Evid. Code § 403), but OVERRULED as to Goguen’s alleged statement. Obj. No. 19. SUSTAINED. Evid. Code § 403. Obj. No. 20. SUSTAINED. Evid. Code § 403. Obj. No. 21. SUSTAINED. Evid. Code § 403. Obj. No. 22. SUSTAINED. Evid. Code § 702. Obj. No. 23. OVERRULED. Obj. No. 24. OVERRULED. Obj. No. 25. SUSTAINED. Evid. Code §§ 720, 800-801. Obj. No. 26. OVERRULED. Obj. No. 27. SUSTAINED. Evid. Code § 403. Obj. No. 28. SUSTAINED. Evid. Code § 403.

Goguen’s Objections to the Gersh, M.D. declaration (Nos. 1-6) are OVERRULED.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.