Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-09-CV-148347
ELIA, J.In this action for breach of contract, common counts, fraud, and intentional interference with prospective economic advantage, the superior court granted in part the defendants' motion to strike plaintiff John Conwell's complaint under the anti-SLAPP law, Code of Civil Procedure section 425.16 (hereafter, section 425.16). Both parties appeal. Defendants contend that the entire motion should have been granted, while Conwell argues that he should have been allowed to proceed on all of the causes of action in his complaint. We find merit in defendants' position and therefore must overturn part of the superior court's ruling.
Defendants seek monetary sanctions for multiple deficiencies in the appendix filed by Conwell as well as his unsupported references to that appendix. Their objections are well taken. We decline to award sanctions, but we will disregard Conwell's references to his appendix and rely entirely on defendants' appendix in relating the history of the parties' dispute.
1. The Underlying Lawsuit: Ding v. Luca
In December 2003 Conwell represented Xiaohong Ding in her legal malpractice action against Dennis Luca. Luca was represented by Jesse F. Ruiz and Bonnie M. Ross of the law firm Robinson & Wood, Inc., all defendants in the present action. Ding and Luca eventually reached a settlement, the terms of which were recited on the record at a hearing on November 29, 2006. Among those terms was a $40,000 "contribution" by Conwell into the Robinson & Wood client trust account. A check in that amount would be issued from the trust account to Ding, liens outstanding against Ding would be dismissed, and Ding would release Luca from her claims of liability and dismiss the action. Both Conwell and opposing counsel explained to Ding that Conwell had "agreed to pay" the $40,000, and the court assured her that she would not have to sign any release of Luca until she had her money.
As the court began to ascertain the understanding of all present, Conwell explained to the court that he was contributing the $40,000 "as a release of any claim against me. I do this in good faith." Ding, however, did not agree to that condition; she unequivocally refused to sign anything between Conwell and her. The court emphasized that the settlement pertained only to the case between her and Luca; as there was no pending litigation involving Conwell, the court would not "deal with that."
Conwell sent his "contribution toward settlement" to Ruiz one month later, on December 29, 2006. In the accompanying letter he added, "Since this is my money, I will provide you with instructions for the payment to be made to Dr. Ding by direct deposit to her bank account. This information will be provided orally and is to be kept confidential." Over the next several months Ruiz and Conwell corresponded extensively regarding the proposed language of the settlement agreement.
The successive drafts of the agreement are relevant to the ensuing dispute between Conwell and defendants. A draft in February 2007 included this language: "Ding shall receive a contribution in the amount of $40,000 paid by the Law Offices of John R. Conwell. Said amount shall be deposited into the Robinson & Wood, Inc. Trust Account and shall be released to Ding upon identification of the bank account yet to be set up by Dr. Ding or on her behalf." The draft further acknowledged that the $40,000 to be paid to Ding "was contributed by the Law Offices of John R. Conwell...." A March 2007 draft explicitly acknowledged that "John Conwell has deposited the sum of $40,000 into the Robinson & Wood, Inc. Trust Account. Said amount shall be released directly to Dr. Ding upon identification of the bank account yet to be set up by Dr. Ding or on her behalf. This information will be provided orally by Dr. Ding's attorney and is to be kept confidential." A draft submitted by Conwell in June 2007 included the same language, except for the last sentence, which was changed to the following: "This information will be provided orally by Dr. Ding or her representative and is to be kept confidential." All of the drafts contained the provision for the $40,000 payment of Ding from the Robinson & Wood trust account, but none mentioned a condition that Ding would release Conwell from any liability toward her.
During the lengthy period of correspondence and negotiation over the terms of the settlement, Ruiz expressed some frustration over the amount of time it was taking to reach agreement. Meanwhile, in early July of 2007 Conwell ceased representing Ding. Bonnie Ross thereafter advised Conwell by e-mail that Ding was insisting on settlement language stating that she would owe Conwell no attorney fees. Ross proposed to send Conwell the current version for his signature, but Conwell refused to sign any settlement agreement, as he was no longer her attorney. On July 13, 2007, Ruiz asked Conwell by e-mail what he should do with the $40,000 Conwell had sent to the firm's trust account. Further correspondence from Ross indicates that Conwell did not respond to her inquiry.
With Ding now representing herself, Ross began discussions with her directly. Defendants followed the instructions given by Ding and wired the $40,000 to a bank account she had specified. On July 18, 2007, Ding informed Ross that she had received the "transfer money." The final settlement, which was signed between August 16 and 23 by Ding, Luca, and Ruiz as Luca's counsel, contained the following language: "John Conwell has deposited the sum of $40,000 into the Robinson & Wood, Inc. Trust Account. Said amount shall be released directly to Dr. Ding upon identification of the bank account yet to be set up by Dr. Ding or on her behalf. This information will be provided by Dr. Ding and is to be kept confidential." The parties thus reached their final settlement without any further participation by Conwell. Several liens against Ding were deemed satisfied, and Ding released Luca from all pending and future claims associated with his representation of her.
On August 10, 2007, shortly before the execution of the final agreement, Conwell filed a petition to intervene in the matter to recover his $40,000. Conwell blamed Luca and his attorneys for delaying the settlement, which he said had resulted in Ding's insistence that he substitute out as her counsel. In short, he stated, "[s]ettlement has failed and it is time to return $40,000 to John R. Conwell.... Let the parties have their day in trial." Conwell also sought attorney fees for his efforts to settle the case.
In a declaration accompanying his petition to intervene, Conwell stated that when he made the $40,000 "voluntary contribution" he was "under no obligation but sought peace of mind." The contribution "was to enable [Ding] to provide for herself and her son until she gained employment." Conwell explained that since making the contribution, he had continued paying her living expenses and loaning her money. He added, "Although she is now employed, I do not expect to recover any money from her." Nevertheless, he stated that because settlement had failed, he was withdrawing his "voluntary contribution" and was seeking the return of the $40,000. Conwell did not mention any condition of his contribution relating to Ding's release of liability.
Accompanying the petition and supporting materials was a notice that Conwell "revokes and withdraws his voluntary contribution of $40,000. Settlement has failed. Plaintiff seeks trial of issues that are the subject of the underlying lawsuit. [¶] John R. Conwell demands release and return of $40,000 to him from the client trust account of Robinson & Woods [sic]."
On August 21, 2007, the parties appeared at a hearing that had been scheduled for enforcement of the 2006 settlement. Ross informed the court that an agreement had been signed, and the Ding v. Luca case had already been dismissed. The court took the motion to enforce the settlement off calendar. Ross further advised the court that Conwell's petition to intervene was outstanding. Conwell was not present, however, and the court took the matter off calendar. The court stated that if Conwell wished to file something, "he'll have [to] do that later on, but right now it's over." Ding sued Conwell for malpractice on July 14, 2008.
Ross represented that Conwell had not given sufficient notice of the hearing on his petition, and there was no order shortening time. The day before the hearing he had informed defendants that he would be out of the country and wished to postpone the proceedings.
On July 27, 2009, Conwell initiated the present action against Ruiz, Ross, and their firm, Robinson & Wood, Inc. In the form complaint he alleged breach of contract, common counts, breach of fiduciary duty, and intentional and negligent interference with prospective economic advantage. Conwell sought damages of $40,000 plus interest and punitive damages.
Conwell did not elaborate on the negligent aspect of his claim for interference with prospective economic advantage, and thus appears to have abandoned this allegation.
Conwell provided details of the alleged breach of contract: He had contributed the $40,000 "based on Ding's threat to sue him"; the contribution "was supposed to be the basis for Ding's release of him from future claims of professional negligence"; and defendants paid Ding the $40,000 "in violation of the agreement with Ding and with Conwell." Further, defendants "had reason to believe that Conwell might get sued by Ding and neglected to tell him of the proposed payment."
In the second cause of action for common counts, Conwell again alleged that he was "supposed to be released from liability by Ding in exchange for his contribution." Defendants nonetheless "intentionally or negligently released the $40,000 to Ding without first getting a signed release from Ding or notifying Conwell."
The third cause of action, renamed "Fraud, " described Ruiz's agreement to hold Conwell's contribution subject to Ding's release of Luca. Conwell added, "It was understood and implied that Conwell would be notified of any proposed transfer of money to Ding, " and that the money would be returned to Conwell if Ding did not sign a timely release of Luca. Defendants, however, concealed their intention to give Ding the contribution "regardless of the conditions precedent that were agreed to by Ding and [Conwell]." Alternatively, defendants negligently made their "representations" without regard for Conwell's "rights, " and "they took his $40,000 to benefit Luca and use it as a tool to get Ding to eventually sign a release and dismissal of Luca to Conwell's detriment and damages." Defendants were liable for punitive damages because they knew that Conwell wished to avoid being sued by Ding for professional negligence, and they were aware of Conwell's attempt to intervene to recover his contribution; but they "failed and refused" to notify Conwell that Ding had demanded the money, and they gave it to Ding.
Conwell repeated these allegations in the fourth cause of action for intentional interference with prospective economic advantage. In essence he claimed that defendants "knew or had reason to know that the $40,000 contribution by Conwell was for his benefit and to prevent a future lawsuit against Conwell by Ding, and therefore was a probability of future economic benefit from such a business relationship." Defendants also knew that he was seeking recovery of his contribution, but they released the money to Ding without notifying Conwell, resulting in the loss of his money and Ding's lawsuit against him.
On October 22, 2009, defendants moved to strike Conwell's complaint under section 425.16. They argued that each of his claims arose from their protected activity — namely, their efforts to settle the Ding v. Luca lawsuit — and that there was no probability that Conwell would be able to prevail on the merits.
In a declaration accompanying the motion Ruiz stated that Conwell had never told him that Ding had threatened to sue him, or that Ding had agreed to settle all claims against Conwell in exchange for the $40,000. Ruiz added that he had never agreed "to be Mr. Conwell's surety for the $40,000. Mr. Conwell never asked me to hold the $40,000 contingent on a release from Ding, nor did he ever express [sic] that the funds were payable contingent on any other event." Ross likewise declared that Conwell had never asked her to "hold the $40,000 contingent on a release from Ding, nor did he ever express [sic] that the funds were contingent on any other event."
The superior court granted defendants' motion in part. It ruled that defendants had not met their burden to show that the second and fourth causes of action for common counts and intentional interference with prospective economic advantage arose from protected activity, because their release of the money was conduct, not a statement, and it did not "arise out of the transaction that Mr. Conwell is suing over." As to breach of contract (first cause of action) and fraud (third cause of action), however, defendants had met their threshold burden, and Conwell had failed to demonstrate a probability of prevailing on those claims. From that November 22, 2009 order, each party has appealed.
Discussion
1. The Anti-SLAPP Statute
A SLAPP, or Strategic Lawsuit Against Public Participation, is an unsubstantiated lawsuit arising from the defendant's constitutionally protected speech or petitioning activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60.) Section 425. 16 was enacted in 1992 to address the "disturbing increase" in the frequency of these meritless harassing lawsuits. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1126.) It was the Legislature's finding "that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." (§ 425.16, subd. (a).) The statute was thus designed to deter meritless actions that "deplete 'the defendant's energy' and drain 'his or her resources' [citation], ... ' "... by ending them early and without great cost to the SLAPP target" ' [citation]." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Chabak v. Monroy (2007) 154 Cal.App.4th 1502.)
Section 425.16 expressly provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) In evaluating a motion under the statute the trial court engages in "a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue, ' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67 (Equilon); Vargas v. City of Salinas (2005) 46 Cal.4th 1, 16.) "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." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
On appeal we review the entire record de novo to decide whether the defendant has shown that section 425.16 applies and, if so, whether the plaintiff has shown a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999; Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1063.) "Accordingly, we independently determine whether the challenged cause of action arose from the defendant's exercise of the constitutional right of petition or free speech—and if so, whether the plaintiff has demonstrated a probability of prevailing on the merits of the claim." (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.) We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) "However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff... and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3, quoting HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; see Chabak v. Monroy, supra, 154 Cal.App.4th 1502.)
2. Defendants' Appeal
a. The "Arising From" Requirement
Defendants challenge the trial court's denial of their anti-SLAPP motion as to the second and fourth causes of action for common counts and intentional interference with prospective economic advantage. At the hearing the trial court correctly noted that settlement activity is protected by the anti-SLAPP statute. It expressed the opinion, however, that these two claims did not arise "from what the defendant[s] said or wrote but from the defendant[s'] conduct of releasing the $40,000." We take a broader view of the defendants' conduct, however. "Under the plain language of section 425.16, subdivisions (e)(1) and (e)(2), as well as the case law interpreting those provisions, 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." (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) And the Supreme Court has held that the negotiation and execution of a release of claims "falls squarely within the plain language of the anti-SLAPP statute." (Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) In Conwell's second and fourth causes of action he alleged that defendants were liable because they released his $40,000 "without first getting a signed release from Ding or notifying Conwell." Following Navellier, we regard the release of the funds as the intended culmination of their petitioning activity in the settlement of the litigation between Ding and their client, Luca. Accordingly, we conclude that the second and fourth causes of action pleaded in Conwell's complaint come within the purview of section 425.16, subdivision (e)(2.)
In the context of the second cause of action—i.e., he "was supposed to be released from liability by Ding in exchange for his contribution"-- the quoted allegation appears to mean that defendants failed to obtain Ding's release of Conwell. In the fourth cause of action, on the other hand, he alleges that Ross released the money to Ding "without first Ding [sic] to sigh [sic] a release of Dennis Luca...."
Conwell's responsive arguments are often confused and disjointed and are replete with unsupported and irrelevant assertions of both fact and law. In essence he appears to be arguing that the first prong of the test under section 425.16 cannot be established because (1) the parties and issues are not the same in this action as in Ding v. Luca; (2) legal malpractice actions are not connected with a public issue or issue of public interest; (3) his lawsuit "does not chill any defendant's right to answer the complaint or exercise their other rights of free speech or petition of grievance"; and (4) for a defendant's act to be in furtherance of the right of petition or free speech he or she must be "presently engaged in furtherance of those rights or reasonably in anticipation of exercising the right of petition or free speech."
None of these assertions is supported by any applicable authority, nor does he purport to cite any. The first appears to be an extrapolation from res judicata principles. The second -- even if it were legally accurate -- is of no consequence, since this is not a legal malpractice case. The third assertion is likewise misguided, because there is no requirement that the lawsuit actually have a chilling effect for the statute to apply. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1016.) Finally, there is no support whatsoever for Conwell's assumption that the defendant must be presently engaged in petition or speech rights when the plaintiff files the lawsuit.
Conwell cites California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032 without explanation of its applicability to the present case. There is none. There the appellant attorney, after representing the injured parties in a personal injury action, disbursed the proceeds without notifying the holders of liens on the action or withholding funds to satisfy those liens. In the lienholders' subsequent lawsuit against the appellant, his anti-SLAPP motion was properly denied because the complaint was "based on the underlying controversy between private parties about the validity and satisfaction of the liens. These issues were never under consideration in any court or official proceedings until CBSMG filed the current action." (Id. at p. 1037.) Here, by contrast, defendants' release of the $40,000 was directly related to and consistent with the settlement in Ding v. Luca, a pending action.
Our independent review thus convinces us that defendants met their threshold burden to demonstrate that Conwell's allegations of common counts and intentional interference with prospective economic advantage arose from defendants' protected petitioning activity. We therefore proceed to the second step of the SLAPP analysis as to these claims.
b. Probability of Prevailing on Second and Fourth Causes of Action
"In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must ' "state[ ] and substantiate[ ] a legally sufficient claim." ' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' " (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19-20, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) "Accordingly, when a defendant makes the threshold showing that a cause of action that has been filed against him or her arises out of the defendant's speech-related conduct, the provision affords the defendant the opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is unable to demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim." (Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
In his second cause of action Conwell checked the box on the complaint form for "money had and received by defendant for the use and benefit of plaintiff." He elaborated by alleging that he was "supposed to be released from liability by Ding in exchange for his contribution of $40,000 to be held in the Client Trust Account of Luca's attorneys at Robinson & Wood, who intentionally or negligently released the $40,000 to Ding without first getting a signed release from Ding or notifying Conwell."
"A common count is not a specific cause of action...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394; accord, Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1559-1560.) "A cause of action for money had and received is stated if it is alleged the defendant 'is indebted to the plaintiff in a certain sum "for money had and received by the defendant for the use of the plaintiff." ' " (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, quoting Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623.)
There is no reasonable possibility that Conwell will be able to establish his claim for common counts. He presented no admissible evidence below, and offers none on appeal, to suggest that defendants were holding the $40,000 for Conwell's benefit. Instead, it is clear from the history of the proceedings that defendants were holding the money in the trust account until it could be released to Ding, as provided in the settlement agreement. When they received the anticipated instructions in accordance with the settlement terms—that is, when Ding identified the bank account to receive it—they disbursed the funds to Ding. Nothing in any of the drafts of the agreement or the oral statements at the November 2006 hearing supports Conwell's claim that his contribution was subject to a condition that inured to his benefit.
The fourth cause of action for intentional interference with prospective economic advantage likewise cannot succeed. "In order to prove a claim for intentional interference with prospective economic advantage, a plaintiff has the burden of proving five elements: (1) an economic relationship between plaintiff and a third party, with the probability of future economic benefit to the plaintiff; (2) defendant's knowledge of the relationship; (3) an intentional act by the defendant, designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant's wrongful act, including an intentional act by the defendant that is designed to disrupt the relationship between the plaintiff and a third party. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154....) The plaintiff must also prove that the interference was wrongful, independent of its interfering character. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393....) '[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.' (Korea Supply Co., supra, 29 Cal.4th at p. 1159....)" (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 944.)
Conwell fails in his respondent's brief, or even belatedly in his reply brief, even to discuss the sustainability of his claim. In his complaint he alleged that defendants "knew that Ding [had] threatened to sue Conwell for negligence... and that in an attempt [to] prevent being sued by Ding, Conwell agreed to contribute $40,000 of his own money toward the settlement...." Defendants therefore "knew or had reason to know that the $40,000 contribution by Conwell was for his benefit and to prevent a future lawsuit against Conwell by Ding, and therefore was a probability of future economic benefit from such a business relationship." There was no evidence presented, however, that the contribution would have afforded Conwell any economic advantage had defendants notified him that they were complying with the settlement condition by disbursing the money he had contributed. He was no longer representing Ding and had failed to intervene to retrieve his contribution. Defendants simply acted in accordance with the terms of the agreement between Ding and Luca to facilitate completion of the litigation. Conwell suggests no connection between his own personal objective of averting a malpractice lawsuit against him by Ding and the conduct of defendants as opposing counsel in Ding v. Luca. Ding had already made it clear that she would not release him from liability; whether or not he continued to hope she would relent, no obligation to facilitate such a release was created on any of the participants in Ding v. Luca.
We thus conclude that because defendants established that their release of the funds arose from protected petitioning activity, and because Conwell failed to make a sufficient prima facie showing that he could prevail on the second and fourth causes of action, these claims should have been struck under section 425.16.
3. Conwell's Appeal
As noted earlier, the trial court granted the motion to strike the first and third causes of action for breach of contract and fraud. Defendants had shown that these claims arose from protected activity under section 425.16, subdivision (e)(2), and Conwell had failed to demonstrate that they were legally sufficient and "supported by a sufficient prima facie showing of facts to sustain a favorable judgment." In his appellate briefs, Conwell combines his arguments challenging the trial court's ruling against him with his response to defendants' appeal. He concentrates on the first prong of the statutory test without distinguishing any specific causes of action, and he makes no effort to show how the trial court erred in finding that he could not prevail on his contract and fraud claims.
A thorough review of Conwell's complaint reveals that each cause of action is based on the same acts by defendants: essentially, defendants' transfer of the settlement money to Ding without notifying Conwell. As noted earlier, the basis of the first cause of action for breach of contract was that Conwell's contribution "was supposed to be the basis for Ding's release of him from future claims of professional negligence." The nature of the mutual exchange of promises (not to mention the element of consideration) is unclear: according to Conwell, he agreed to contribute the $40,000 and Ruiz agreed "to hold the $40,000 in the [client trust account] of Robinson & Wood until Ding signed the Release and Dismissal." There is no connection between that so-called contract and the asserted breach, which occurred when "Ding was paid without notice to Conwell or signing a release" of him. Ruiz did exactly what he had agreed to do: hold the funds pending the final settlement between Ding and Luca.
No evidence exists—or, for that matter, is alleged—that any of the defendants promised to withhold the funds from Ding until Conwell received notice or obtained a release of liability from Ding. On the contrary, at the settlement hearing in November 2006 it became abundantly clear that Ding would not release Conwell from liability. The court assured Ding that any relationship between her and Conwell was of no concern to the court; its only interest was the terms of the release of Luca. None of the defendants could ever have promised Conwell that they would not give his money to Ding unless she released him of liability—nor did they.
Notice, too, was not a term of the settlement agreement. The drafts Conwell himself approved stated that the funds would be released "directly to Dr. Ding upon identification of the bank account yet to be set up by Dr. Ding or on her behalf." Early drafts added that the bank information would be provided "orally by Dr. Ding's attorney, " but Conwell himself submitted a later draft specifying that "Dr. Ding or her representative" would be providing that information. The final agreement, which was reached after Conwell was no longer Ding's attorney, deleted "or her representative" and stated that Ding herself would specify the bank account for receipt of the funds. In short, nothing in any of the draft agreements, settlement discussions, or correspondence suggests that defendants entered into a contract with Conwell and then failed to perform.
The fraud cause of action is also fundamentally defective. Conwell checked the boxes for both misrepresentation and concealment. He alleged that Ruiz had "agreed to hold Conwell's contribution... subject to Ding signing a Release and Dismissal of the complaint for professional negligence, etc., filed against Dennis Luca. It was understood and implied that Conwell would be notified of any proposed transfer of money to Ding." Defendants, however, "intended to transfer the $40,000 contribution by Conwell to Ding regardless of the conditions precedent that were agreed to by Ding and her, then-attorney Conwell. In the event that a timely release of Luca was not signed by Ding, the money could and would be returned to Conwell." Under "concealment, " Conwell alleged that after he served his petition to intervene, defendants "concealed the intention to transfer [the money] to Ding and did so."
There is no support for these assertions in the discussions at the November 29, 2006 hearing, nor in any settlement discussions or draft agreements thereafter. Any promise to return the money to Conwell if Ding did not release him from liability—or any other "conditions precedent, " for that matter— was at best only wishful thinking on Conwell's part. Although he stated that he had not been informed of changes in the drafts pertaining to the transfer of the funds, he had already made it clear to defendants by then that he was no longer Ding's attorney and wanted nothing to do with the settlement agreement. His additional assertion that after he served his petition to intervene defendants gave the money to Ding without telling him is plainly contradicted by the record: The money was transferred to Ding on July 18, 2007, and Conwell did not file his petition until August 10, 2007.
In his declaration in opposition to the anti-SLAPP motion Conwell stated that Ding had threatened to sue him for malpractice, and that he had agreed "to pay her $40,000 in exchange for a release from liability." Conwell told Ruiz about these threats, and Ruiz was sympathetic. Ruiz then offered the use of the client trust account to deposit the $40,000. When he submitted the cashier's check he stated that " 'this is my money' and that only I could provide the bank account number of Ms. Ding before it could be deposited into her account." Outside the courtroom at the status review hearing on July 12, 2007, when Conwell was substituting out as Ding's attorney, Conwell told Ross to "hold onto [his] money." He then left and did not know what happened in court after that. Irrefutably, Conwell's directive to hold onto his money did not create a contract between him and defendants.
Conwell is understandably upset that Ding accepted his generous contribution and then sued him anyway. As Conwell pointed out in his opposition papers below, "$40,000 is not chicken feed!" His grievance, however, should have been directed at Ding, not defendants. The superior court correctly ruled that Conwell had failed to show a probability of prevailing on his first and third causes of action. As Conwell has been unable to demonstrate a prima facie case as to any of his four causes of action, we must conclude that his complaint should have been struck as a SLAPP under section 425.16.
In light of this conclusion, it is unnecessary to address defendants' assertion of the litigation privilege under Civil Code section 47, subdivision (b).
Disposition
The order partially denying defendants' motion under section 425.16 to strike plaintiff Conwell's complaint is reversed. The superior court is directed to enter a new order striking all four causes of action and to dismiss the complaint. Costs for both appeals are awarded to defendants.
WE CONCUR: RUSHING, P. J., PREMO, J.
Conwell also seeks sanctions on appeal. Even if he had asserted viable grounds for such an award, however, he would not receive them, because he failed to file a separate motion, as required by California Rules of Court, rule 8.276.