Vasu Arora v. Board of Supervisors, County of Santa Clara

Case Name:   Vasu Arora v. Board of Supervisors, County of Santa Clara, et al.

Case No.:       1-13-CV-249434

 

After full consideration of the evidence, arguments, authorities, and papers submitted by each party, the court makes the following rulings:

 

Plaintiff Vasu Arora (“Plaintiff”), in pro per, is a 79-year old retired internist who worked as a paralegal for defendant Arnold Laub (“Mr. Laub”) at the Law Offices of Arnold Laub after his retirement from medicine.  (SAC, ¶¶ 14-15, 17-18.)  On July 15, 2009, Plaintiff was fired after a pay dispute.  (SAC, ¶ 29.)  Plaintiff then sued Mr. Laub (and his Law Offices) in San Francisco County Superior Court on June 29, 2010 (Case No. CGC-10-501595).  (SAC, ¶ 30.)  Plaintiff alleged claims for breach of contract, violation of the Fair Labor Standards Act, wrongful termination, unfair business practices, elder abuse, and infliction of emotional distress.  (Id.)  Plaintiff was represented by William Dresser (“Mr. Dresser”) in that lawsuit.  (SAC, ¶ 38.)  Defendant Michael DePaul (“Mr. DePaul”) defended Mr. Laub in that action.  (SAC, ¶¶ 34, 58.)  In connection with the lawsuit, Mr. DePaul served business subpoenas on defendant Santa Clara County Medical Center on December 14, 2011, seeking Plaintiff’s medical and billing records.  (SAC, ¶¶ 37, 59.)  Copies of the subpoenas and the accompanying notices to consumer were served on Mr. Dresser.  (SAC, ¶ 63, Ex. 12.)  Mr. Dresser and Mr. DePaul met and conferred regarding whether the subpoenas.  (SAC, ¶ 38, Ex. 13.)  Mr. Dresser threatened to file a motion to quash, but no motion was ever filed.  (Id.)  In January 2012, the parties settled the lawsuit.  (SAC, ¶ 123, Ex. 9.)

 

On July 12, 2013, Plaintiff filed his original complaint in this action against the Board of Supervisors of the County of Santa Clara, Santa Clara County Valley Medical Center, Mr. De Paul, Mr. Laub, Law Offices of Arnold Laub, and 807 Montgomery Associates, alleging that Mr. DePaul, as attorney for Mr. Laub in the prior lawsuit, issued subpoenas for medical and billing records to defendant Santa Clara County Medical Center, which caused the “unauthorized release of the business records/health information/medical records [. . .] on or about January 14, 2012.”  (SAC, ¶ 8.)  On August 8, 2013, Plaintiff filed the operative second amended complaint (“SAC”), alleging four causes of action[1]: (1) “Business Records are part of Medical Records/Health Information and are Protected by the Same Laws as for Medical Records/Health Information Protection,” which appears to allege a violation of Plaintiff’s right to privacy under Article I of the California Constitution; (2) “California Laws Protecting Business Records/Medical Records/Health Information Privacy and Breach of Confidentiality of California Residents,” which—in addition to again alleging a violation of the right to privacy—appears to allege a violation of confidentiality of medical information act (Civ. Code §56 et seq.); (3) “Intentional Tort of Invasion of Privacy and Breach of Confidentiality of Business Records,” alleging invasion of privacy and violation of the security breach notification law (Civ. Code §1798.29), and the confidentiality medical information act; and (4) “Harassment and Elder Abuse.”  The four causes of action in the SAC are alleged against “Defendants” without differentiation, although stray allegations are occasionally against a specific defendant.

 

Mr. Laub, the Law Offices of Arnold Laub, and 807 Montgomery Street Associates, LLC (collectively “Defendants”) move to strike the SAC in its entirety pursuant to Code of Civil Procedure section 425.16 on the grounds that the claims asserted therein are based on protected activity and Plaintiff cannot demonstrate a probability of prevailing on the merits.  In the alternative, Defendants also demurs to the SAC.

 

Defendants’ Special Motion to Strike

As a preliminary matter, Plaintiff argues that the special motion to strike is procedurally defective on several grounds and, therefore, should be denied.  However, Plaintiff’s arguments lack merit and he cites no legal authority for the Court to overrule a special motion to strike based on the purported procedural deficiencies he identified.

Plaintiff also contends that Defendants’ special motion to strike and demurrer were filed untimely and the hearing was not set within 30 days of the service of the motion. The Court finds that the special motion to strike was filed more than 60 days after service of the SAC on Defendants.  However, the Court exercises its discretion to consider the special motion to strike given the unusual procedural history of this case.  (See Platypus Wear, Inc. v. Goldberg, 166 Cal. App. 4th 772, 787 [indicating that unusual variances in the procedural history of a case may justify the allowance of the late filing of a special motion to strike]; see also South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634, 656; see also Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679.)  The Court finds that allowing the late filing of the special motion to strike in the instant case would advance the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits because Defendants filed the instant motion at the earliest available opportunity after the Court set aside the default, and Defendants have not otherwise answered the SAC.  With respect to the timing of the hearing, Plaintiff’s arguments are unavailing because Plaintiff is relying on outdated case law that was superseded by the 2005 amendments to Code of Civil Procedure section 425.16, subdivision (f).  (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)

The Court notes that Plaintiff’s papers are not code-compliant because they are typed in an impermissibly small font and the line spacing is improper.  (See Cal. Rules of Court, rules 2.104 [“[a]ll papers must be printed or typewritten . . . in type not smaller than 12 points”] & 2.108 [line spacing].)  The Court will still consider Plaintiff’s opposition despite these defects; however, the Court admonishes Plaintiff for failing to comply with the California Rules of Court.

 

Code of Civil Procedure section 425.16, subdivision (b)(1) requires the court to engage in a two-step process.  (See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67; see also Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 819-820.)  First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity.  (Id.)  The statutory phrase “cause of action [. . .] arising from” means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.  (See City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.)  Second, if the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (See Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, at p. 67; see also Oasis West Realty, LLC v. Goldman, supra, at pp. 819-820.)  Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.  (Id.)  In determining whether each party has satisfied its burden, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Code Civ. Proc., § 425.16, subd. (b)(2).)

 

As Defendants persuasively assert, Plaintiff’s entire lawsuit is based on the issuance of subpoenas for his medical and billing records in connection with the earlier lawsuit that Plaintiff brought against Mr. Laub (and his Law Offices) in San Francisco County Superior Court (Case No. CGC-10-501595), and the act of issuing the subpoenas qualifies as protected conduct under the anti-SLAPP statute.  (See Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963 [indicating that Code of Civil Procedure section 425.16, subdivision (e)(1) includes pleadings, statements and writings made “in connection with” civil litigation such as settlement negotiations and agreements]; see also Mallard v. Progressive Choice Insurance Company (2010) 188 Cal.App.4th 531, 544 [finding that the act of subpoenaing health records for an individual where that individual has placed them at issue has been held to qualify as “protected activity” under the litigation privilege of Civil Code section 47, subdivision (b)].)  Plaintiff argues that the issuance of the subpoenas does not qualify as protected conduct because the subpoenas were illegal.  However, there is no indication that the issuance of the subpoenas was illegal as they were served with consumer notices on Plaintiff’s former attorney and Plaintiff had the opportunity to file a motion to quash or for protective order if he believed that the subpoenas were overbroad and/or invaded his right to privacy.  (See SAC, Exs. 12-13; see also Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [in this context, the term “illegal” means criminal, rather than merely violative of a statute or common law standard]; see also Code Civ. Proc., § 1983.5, subd. (g), 1987.1.)

In addition, Defendants persuasively argue that Plaintiff cannot demonstrate that he will prevail on the merits of his claims because all of his claims are barred by the litigation privilege.  The act of subpoenaing of records in connection with a lawsuit is a protected activity under the litigation privilege where a party has put those records at issue.  (See Mallard v. Progressive Choice Insurance Company, supra, at p. 544.)  Thus, Plaintiff’s claims in his prior lawsuit put his medical condition at issue such that the litigation privilege operates to bar all of the claims against Defendants.  In the event that any claim can be stated against Defendants, those claims are based upon communicative conduct which took place during the previous litigation.  (See Mallard v. Progressive Choice Insurance Company, supra, at p. 544 [noting that the California Supreme Court held in Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, that “the litigation privilege applies even to a constitutionally based privacy cause of action”]; see also Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361 [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 [when] no function of the court or its officers is involved”].)

 

Accordingly, Defendants’ special motion to strike is GRANTED.

 

After Defendants have served notice of entry of the order, Defendants shall submit a proposed judgment consistent with the order.

 

Defendants’ Demurrer to the SAC

 

In light of the ruling on the special motion to strike, Defendants’ demurrer in the alternative is deemed MOOT.

 

Requests for Attorney Fees

 

Plaintiff’s request for attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c) is DENIED because Plaintiff was not the prevailing party.

 

In their moving papers, Defendants request that they be awarded attorney fees and costs as the prevailing party in the amount of $9,784.50.  In their reply papers, Defendants indicate that additional attorney fees have been incurred, such that the new total amount of fees and costs sought is $10,234.50.  As the prevailing party, Defendants’ are entitled to an award of attorney fees and costs. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [“any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees”]; see also Code Civ. Proc., § 425.16, subd. (c).)

 

Defendants’ counsel Mark Meyer (“attorney Meyer”) submits a declaration in which he declares that he spent 22.35 hours reviewing the SAC, reviewing pleadings filed by the parties, communicating with Plaintiff, communicating with Defendants, conducting research, drafting memoranda and declarations, and making appearances in this matter, and 1 hour reviewing and responding to Plaintiff’s opposition.  Attorney Meyer further declares that Joseph Ehrlich (“attorney Ehrlich”) spent 2 hours communicating with Defendants, reviewing the SAC, and editing briefs filed in this case, including the special motion to strike, and an additional 0.25 hours reviewing Plaintiff’s opposition and the reply papers.  Attorney Meyer declares that his hourly rate is $350 and that attorney Ehrlich’s hourly rate is in excess of $400.  Attorney Meyer also declares that Defendants have incurred $870 for initial filing fees, $120 in motion filing fees, and $172 in court appearance costs.

 

The Court finds that the hourly rates of attorneys Meyer and Ehrlich, the time spent by attorney Ehrlich, and the costs that were incurred are reasonable.  However, the overall time spent by Defendants’ counsel is excessive.  The Court finds that a total of 15 hours by attorney Meyer and 2.25 hours by attorney Ehrlich represent a reasonable amount of time needed for purposes of this action. Accordingly, Defendants’ request for attorney fees is GRANTED in the amount of $6,150.00.  Defendants shall recover their costs, by way of memorandum of costs after judgment.

 

The Court will prepare the order.



[1] The titles of these causes of action are taken verbatim from the SAC.

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