Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Terry A. Green, Judge. Los Angeles County Super. Ct. No. BC401000
Jaffe + Martin, Howard M. Jaffe and Arthur L. Martin for Plaintiff and Appellant.
Law Offices of Henry N. Jannol, Henry N. Jannol and Tracey P. Hom for Defendants and Respondents.
ASHMANN-GERST, J.
Larry Gurney, Jr. (Gurney) appeals from an order granting the anti-SLAPP motion filed by respondents Spartan Funding Group (Spartan) and David Bergstein (Bergstein) pursuant to Code of Civil Procedure section 425.16. On appeal, Gurney claims that his equitable action to vacate a 2003 judgment against him does not fall within the ambit of the anti-SLAPP law. Alternatively, Gurney claims that he demonstrated a probability of prevailing on the merits.
SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 813, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We find no error and affirm.
FACTS
The initial dispute
Gurney, Larry Lane Gurney, Sr., (Larry, Sr.) and Darrell Gurney (Darrell) (collectively the Gurneys) purchased stock in Metropolis Publications, Inc. (Metropolis) in 1996 or 1997. The stock did not perform as expected. Gurney and Bergstein, an officer of Spartan, discussed the possibility of Bergstein repurchasing the stock. In 1999, Gurney signed three settlement agreements, one for him and one each for Larry, Sr., and Darrell. The settlement agreements provided that Spartan and Bergstein would buy back the stock at two dollars a share. In exchange, the Gurneys released all of their claims against Spartan, Bergstein and Metropolis (Metropolis parties). Bergstein provided cashier’s checks to the Gurneys. Respectively, Gurney, Larry, Sr., and Darrell received $100,000, $102,000 and $14,000. The Gurneys endorsed and cashed the checks. Subsequently, Gurney surrendered his stock to Bergstein. Larry, Sr., and Darrell did not.
Larry, Sr., and Darrell are Gurney’s father and brother respectively.
Some of these facts are taken from the opinion in Spartan Funding Group v. Gurney (Mar. 17, 2008, B201820 [nonpub. opn.]). The facts are provided for context only and do not dictate the outcome of this appeal.
The Gurneys’ federal action
Represented by Thomas P. Bleau (Bleau) of Bleau, Fox & Associates (Bleau Fox), the Gurneys sued the Metropolis parties in federal court and requested relief for securities fraud (federal action). The federal action was dismissed. The dismissal was affirmed on appeal.
The Metropolis parties represent that the federal action was dismissed. This cannot be verified because they did not provide a record citation. Gurney did not object to this representation. We accept it as true.
The Gurneys’ state action
Again represented by Bleau, the Gurneys sued the Metropolis parties in state court for fraud (state action). The trial court sustained a demurrer without leave to amend and entered a dismissal. The Gurneys appealed and lost because they were unable to demonstrate fraud and their claims were otherwise undermined by their settlement agreements.
The Metropolis parties’ Ventura action and 2003 judgment
The Metropolis parties sued the Gurneys for breaching the settlement agreements by filing the federal action and state action and thereby forcing the Metropolis parties to incur substantial legal fees (Ventura action). They prayed for compensatory damages of at least $200,000.
Attorney Nikki Fong (Fong), an associate with Bleau Fox, acknowledged receipt of the Ventura action on behalf of Gurney. Bleau and Fong filed a joint answer on behalf of Gurney and Darrell. Subsequently, on behalf of Gurney, Bleau and Fong submitted further responses to the Metropolis parties’ requests for admissions. Attached to the further responses was a verification that was ostensibly signed by Gurney.
On September 10, 2002, Tracey P. Hom (Hom) of the Law Offices of Henry N. Jannol wrote to Bleau and stated: “After the hearing on Friday, you informed me that you believed [Gurney] would be amenable to coming to California for his deposition.” She asked Bleau what cities the Gurneys resided in and requested dates for depositions in California.
Hom represented the Metropolis parties.
Bleau wrote back, stating, “This letter is sent to advise you that I have communicated with Mssrs. [Larry, Sr.,] and [Gurney] regarding their depositions, which you are intent on taking. [¶] They have both advised me that they do not wish to travel to Los Angeles for their depositions due to the costs associated with same.” He indicated that, in any event, the depositions could not go forward until he and Fong were done with a trial set to start on October 21, 2002. Bleau wrote again and said “we will confer with our clients with regard to the convenient dates for their depositions at the end of the month (in Texas and Tennessee).”
Finally, Hom wrote to Bleau Fox to confirm that “the deposition of [Gurney] will be going forward on October 30, 2002[,] in Knoxville, Tennessee.”
Gurney failed to appear for his deposition.
Hom wrote to Fong and stated that on the day of the deposition attorney Karen Sapp (Sapp) called Larry, Sr., and asked him to have Gurney call Sapp. According to Hom, Gurney “called and informed Ms. Sapp that he notified [Fong] by e mail over three weeks ago that he would not be appearing.”
Subsequently, the Metropolis parties filed a motion in limine to strike Gurney’s answer “as to liability.”
The motion was granted.
Trial was held on December 13, 2002. Bergstein testified that he incurred $965,000 in attorney fees to defend the federal action and state action. The trial court issued a notice of intended decision, stating: Gurney signed the settlement agreements on behalf of Larry, Sr., and Darrell as well as himself. Because the evidence showed that Gurney was not authorized to sign on behalf of Larry, Sr., and Darrell, the settlement agreements did not bind them. Gurney, however, was bound. Gurney failed to appear for his properly noticed deposition, which resulted in his answer being stricken. As a result, the Metropolis parties were entitled to a default judgment against Gurney in the amount of $925,000.00.
On February 10, 2003, judgment (2003 judgment) was entered against Gurney in the amount of $925,000 plus costs and interest. The 2003 judgment stated that Gurney, Larry, Sr., and Darrell all appeared at trial through their counsel of record, Fong and Martin Fox (Fox) of Bleau Fox.
The Tennessee proceeding
In 2007, the Metropolis parties initiated a proceeding to enforce the 2003 judgment in Tennessee.
The motion to set aside the 2003 judgment
Gurney specially appeared in California and moved to vacate the 2003 judgment. He argued that the 2003 judgment was entered absent service of process; the 2003 judgment was void because it was procured by extrinsic fraud and mistake; Bleau, Fox and Fong were not authorized to appear for Gurney; because they also appeared on behalf of Larry, Sr., and Darrell, Bleau, Fox and Fong had a conflict of interest Gurney was never informed of; the 2003 judgment was void on its face; the 2003 judgment was void because it was based on an ex parte order to strike Gurney’s answer; and the 2003 judgment violated section 580 by awarding more than was requested in the complaint in the Ventura action.
In his supporting declaration, Gurney declared: He did not receive notice of the Ventura action and did not ask Bleau Fox to represent him. Further, he was unaware that Bleau Fox was appearing for him.
Prior to the hearing, Hom deposed Fox on behalf of Metropolis parties. Howard M. Jaffe (Jaffe) attended the deposition and represented Gurney.
Fox testified that he “glanced” at Gurney’s declaration saying Bleau Fox was not authorized to represent him. However, Fox did not confirm or deny anything Gurney stated. Instead, Fox invoked the attorney-client privilege and refused to produce any correspondence sent to or from Gurney regarding the Ventura action. According to Fox, Jaffe asked for all contents of Bleau Fox’s files relating to Gurney and sent a subpoena. In response, Fox sent a letter objecting to the subpoena and, to Fox’s understanding, the subpoena was eventually withdrawn. When asked if Bleau Fox was retained to represent Gurney, Fox said he understood that it was. He also stated his understanding that his firm represented Gurney at trial. Fox refused to state whether he ever spoke to Gurney about his Tennessee deposition, and Fox also refused to answer whether his firm sent the 2003 judgment to Gurney.
Jaffe was asked if he was going to waive the attorney-client privilege for Gurney so that Fox could answer questions. In response, Jaffe said that he could not provide a blanket waiver.
Fong was also deposed. She was asked who authorized her to sign the acknowledgement and receipt of the complaint in the Ventura action on behalf of Gurney. Her attorney objected based on the attorney-client privilege. According to Fong, she could not imagine signing the acknowledgement and receipt without authorization. Based on privilege, she declined to state whether she obtained Gurney’s signature on a verification for his responses to the Metropolis parties’ further requests for admissions. When asked if she had reason to believe that Gurney’s Tennessee deposition would not take place, she answered in the negative. If she had known it was not going to take place, her practice would have been to notify opposing counsel. Fong admitted she prepared objections to a notice sent to Gurney to appear for trial.
Hom quoted the declaration of Sapp, stating: “‘I asked Ms. Fong if the deposition had been canceled. She indicated [that] it had not. I asked her if she ever indicated to anyone at Mr. Jannol’s office that the date was inconvenient to the witness. She had not. She indicated there was a problem with client control.’” Hom then stated: “Did you make this statement to Ms. Sapp?” Fong replied: “I don’t have a recollection of saying that to her.”
Fong admitted that she appeared at hearings and trial and told the trial court in the Ventura action that she represented all of the Gurneys. Fong was next asked whether she affixed Gurney’s signature to his response to the Metropolis parties’ further requests for admissions. She said that she had not. She also denied any knowledge that his signature was forged.
Next, Jaffe examined Fong but not Fox. Fong testified that she spoke to Gurney in early 2002. Based on privilege, she declined to state whether her office ever advised the Gurneys of possible conflicts, or whether her office ever obtained a conflicts waiver.
Bleau was not deposed.
The motion to set aside the 2003 judgment was denied.
Gurney’s appeal and concurrent litigations
Gurney appealed the denial of his motion to set aside the 2003 judgment and argued that the 2003 judgment was void because it was procured by extrinsic fraud or mistake; absent notice of trial in accordance with section 594, the 2003 judgment was void on its face; the default judgment improperly awarded damages in excess of the amount sought in the complaint; the order striking Gurney’s answer was void; there was no evidentiary support for the trial court’s ruling; the trial court was unwarranted in finding that Gurney lacked credibility; and the trial court erred by equating Gurney’s alleged knowledge of the action with jurisdiction over his person in accordance with due process.
While his appeal was pending, Gurney filed a complaint in equity to set aside the 2003 judgment (first equitable action) on the grounds that it was obtained by extrinsic fraud or mistake and was rendered in the absence of personal jurisdiction. A couple of weeks later, Gurney sued Bleau Fox and alleged that it committed legal malpractice by, among other things, failing to tell him about the Ventura action and failing to obtain his permission to appear on his behalf. The malpractice action was dismissed with prejudice.
According to Spartan and Bergstein, the case was settled.
The appeal was decided on March 17, 2008. The Court of Appeal reversed and remanded to the trial court with directions to vacate the judgment to the extent that it exceeded the amount of damages specified in the complaint, but it declined to find the 2003 judgment void.
According to the opinion, Bleau exchanged letters with opposing counsel about the depositions of Gurney and Larry, Sr. Bleau “wrote that he had ‘communicated with [Larry, Sr.,] and [Gurney] regarding their depositions,’ and they had ‘both advised [him] that they do not wish to travel to Los Angeles for their depositions....’” (Spartan Funding Group v. Gurney, supra, B201820.) Fox sent opposing counsel a letter stating that he would confer with his clients with regard to deposition dates in Texas and Tennessee. After the Metropolis parties moved to compel the depositions, Fox agreed to the deposition of Gurney in Tennessee and the deposition of Larry, Sr., in Texas. Opposing counsel informed Fox that Sapp would be traveling to the depositions. Sapp arrived at the court reporter’s office in Knoxville, Tennessee to depose Gurney. Neither Gurney nor his counsel was present. Sapp called Larry, Sr., and asked him to tell Gurney to call the court reporter’s office. Gurney called and spoke with Sapp. “He said that ‘his children had a day off... school and that he had things to do with them and that he was not appearing and never intended to appear at the deposition.’” He added that he had told Fong “‘a number of weeks ago’” that he would not be appearing. Sapp later called Fong. She said that there was a problem with client control and Fox had intended to appear by phone. The Metropolis parties eventually filed an ex parte application for an order shortening time for a motion to compel Gurney’s deposition and continue the trial. The trial court denied the motion “and told [the Metropolis parties] to bring a motion in limine seeking appropriate sanctions.” The Metropolis parties filed a motion in limine to strike Gurney’s answer as to liability only due to his misuse of the discovery process and requested that the trial proceed as to damages. The motion was granted and the trial court entered judgment against Gurney. Subsequently, Gurney filed a motion to set aside the 2003 judgment and lost because, in part, the trial court found that Gurney was not a credible witness.
In the Court of Appeal’s view, the statements Gurney made to Sapp contradicted his declaration that he lacked any knowledge of the Ventura action. As well, Bleau Fox’s repeated appearances on Gurney’s behalf, Bleau’s letter stating he had communicated with Gurney, and Fox’s letter stating he would communicate with his clients about their depositions suggested that Bleau Fox did in fact represent Gurney. Further, the Court of Appeal rejected the argument that the 2003 judgment was void because Bleau Fox could not represent Gurney, Larry, Sr., and Darrell without a conflict of interest. There was evidence of a conflict, but there was no evidence Bleau Fox failed to obtain an appropriate waiver. Finally, the contention that the 2003 judgment was void on its face was also rejected.
The first equitable action was dismissed without prejudice.
We have not been provided with a record citation confirming that the first equitable action was dismissed. Spartan and Bergstein, however, represent that it was. The Web site for the Superior Court of Los Angeles (http://www.lasuperiorcourt.org) represents that Gurney dismissed the first equitable action without prejudice while an anti-SLAPP motion was pending.
The second equitable action
Gurney filed a second complaint in equity to set aside the 2003 judgment on the ground that it was obtained by extrinsic fraud or mistake and he was not subject to personal jurisdiction.
Spartan and Bergstein filed an anti-SLAPP motion and argued that Gurney could not demonstrate a probability of prevailing on the merits. According to the moving papers, section 425.16 was applicable because Spartan and Bergstein had been sued as a direct result of their filing of the Ventura action. Spartan and Bergstein maintained that Gurney could not prevail on the merits because the trial court and Court of Appeal in the Ventura action already determined that Bleau Fox was authorized to represent him.
At the hearing, Gurney argued that he was permitted to pursue an independent equitable action even though he lost his motion to vacate the 2003 judgment. The trial court stated: “[Y]ou’ve raised these concerns over and over again. And now[] we’re doing it in Los Angeles... word for word[.] [E]verything that you’re seeking here is something the Appellate Court already decided against you. [¶] Now, is this a SLAPP action? Or is this law of the case? Or is this collateral estoppel? Take your pick.” The trial court opined that the appellate decision was law of the case. When Gurney disagreed, the trial court stated: “Well, all right. I... certainly applaud novel theories. I don’t see it. I don’t see it on so many different grounds that... you’re filing a case in Los Angeles to collaterally attack a judgment in Ventura where the Appellate Court has already decided every issue against you. That’s an uphill battle. Okay. [¶] I’m going to grant the SLAPP motion.”
This timely appeal followed.
STANDARD OF REVIEW
An order granting an anti-SLAPP motion is subject to independent review on appeal. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929 (Kajima).)
DISCUSSION
I. Anti-SLAPP law.
The anti-SLAPP statute provides that “[a] cause of action against a person arising from any act... in furtherance of [a] person’s right of petition or free speech... shall be subject to a special motion to strike.” (§ 425.16, subd. (b)(1).) An act in furtherance of a person’s right of petition or free speech includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (§ 425.16, subd. (e).) For the anti-SLAPP statute to apply, the offending cause of action must arise from a protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) It is not enough that a cause action be “‘triggered’” by protected activity. Instead, the “critical consideration” is whether the claim is based on “free speech or petitioning activity.” (Ibid.)
When ruling on an anti-SLAPP motion, a court must engage 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. [Citation.] 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.)
II. Gurney’s action arises from acts in furtherance of Spartan’s and Bergstein’s constitutional right to petition.
In Gurney’s hypothesis of the law, his equitable action did not arise from Spartan and Bergstein’s petition activities. Gurney attempts to split a hair that cannot be split by arguing that his equitable action arose from the 2003 default judgment and therefore the anti-SLAPP statute does not apply.
Gurney starts off on the wrong foot by casting aspersions upon the trial court. The trial court’s terse ruling has somehow led Gurney to conclude that the trial court “neither came to grips directly nor definitively with... whether the complaint fits the statutory threshold requirement for a ‘SLAPP’ suit.” Without citation to authority, Gurney contends that the trial court’s failure to “consider meaningfully and decide that first, critical issue renders its decision on the anti-SLAPP motion invalid and reversible.” Suffice it to say, Gurney’s aspersions do not aid his cause. He ignores that we presume the correctness of any order that is being attacked and he is obligated to affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
We turn to the merits.
The case on point is Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647 (Church of Scientology) (disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68 fn. 5). In Church of Scientology, the appellant filed an action to set aside a judgment obtained in a prior action. When the appellant’s equitable action to set aside the judgment was dismissed pursuant to section 425.16, the appellant appealed and argued that the statute was not triggered because a judgment rather than a person was being attacked. (Church of Scientology, supra, at p. 648.) According to the appellant, its complaint did not “‘arise’ from any act in furtherance of [the respondent’s] right of petition or free speech because the [appellant] [did] not challenge [the respondent’s] right to file a lawsuit nor [was] its lawsuit ‘brought primarily to chill the valid exercise’ of that right.” (Ibid.) Upon analyzing the language in section 425.16, Church of Scientology concluded that the language “literally applies to any direct attack on the judgment in the prior action, which resulted from [the respondent’s] petition activity.” (Church of Scientology, at p. 648.)
Regarding Church of Scientology, Gurney is conspicuously silent. We are not bound by Church of Scientology, but neither should we decline to follow it without good reason. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.) Because Gurney has failed to offer us good reason—or any reason at all—to disagree with Church of Scientology, we decline to do so. This makes any further discussion on the topic moot.
Nothing in the two cases principally relied upon by Gurney in arguing for reversal —Episcopal Church Cases (2009) 45 Cal.4th 467 (Episcopal Church) and ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 (ComputerXpress)—dictates a different conclusion.
In Episcopal Church, a local church disaffiliated from a larger church and they both claimed ownership of the local church property. After the larger church sued on property related claims, an anti-SLAPP motion was granted. The Court of Appeal reversed and was upheld by our Supreme Court. Although the complaint alleged facts concerning the reasons the local church disaffiliated, the gravamen of the action was the dispute over the property. (Episcopal Church, supra, 45 Cal.4th at p. 477.) The court explained: “‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ [Citation.]” (Ibid.)
ComputerXpress runs in a similar vein. It noted that the phrase “‘arising from’” in section 426.16 “has been interpreted to mean that ‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must have been an act in furtherance of the right of petition or free speech.” (ComputerXpress, supra, 93 Cal.App.4th at p. 1001.)
The problem for Gurney is that his equitable action arises directly from the lawsuit filed by Spartan and Bergstein in Ventura County. The right to file an action would be meaningless without the right to seek a judgment. And it would be pointless to protect the filing of a lawsuit from a SLAPP suit but not the judgment that is the object of the protected activity. We easily reject Gurney’s attempt to peel lawsuits away from judgments for purposes of section 425.16.
III. Gurney has not demonstrated a probability of prevailing.
According to Gurney, the 2003 judgment against him was void and he is entitled to litigate his equitable action. We disagree. The denial of his motion to set aside the 2003 judgment has preclusive effect.
Before the merits, we address the law.
In general, the denial of a motion to vacate a judgment does not bar a subsequent equitable action based on the same grounds. (Estudillo v. Security Loan Etc. & Trust Co. (1906) 149 Cal. 556, 564; Groves v. Peterson (2002) 100 Cal.App.4th 659 (Groves).) However, collateral estoppel is triggered when the plaintiff had a full opportunity to present the relevant issues in connection with the motion. (Barker v. Hull (1987) 191 Cal.App.3d 221, 226 (Barker).)
Case law is not entirely in synch regarding what constitutes a “full opportunity.” According to Barker, “the appropriate principle is that, while the party urging the estoppel must prove that the issue was actually litigated and that evidence was not restricted, he need not establish that any particular type of evidence, such as oral testimony, was presented. [Citations.]” (Barker, supra, 191 Cal.App.3d at p. 226.) Rohrbasser v. Lederer (1986) 179 Cal.App.3d 290, 298–299 (Rohrbasser) took a narrower approach, stating that “the test is whether the person attacking the judgment made a detailed presentation of the issues of fraud or mistake on his motion to vacate, or was given a full opportunity at the time of the hearing to develop the issues by oral testimony.” Finally, Groves relied on Darlington v. Basalt Rock Co. (1961) 188 Cal.App.2d 706, 710 for the proposition that the denial of a motion to vacate does not have preclusive effect unless oral testimony was considered. (Groves, supra, 100 Cal.App.4th at p. 669.)
In our view, Barker and Rohrbasser are better guideposts than Groves. Barker and Rohrbasser permit a court to evaluate the substance of the evidence presented. They tacitly recognize that no two cases are alike and the application of collateral estoppel involves some gray area. In addition, they leave room for a court to weigh the public policies at play; preservation of the integrity of the judicial system, promotion of judicial economy, and protection of parties from vexatious litigation. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343.) In contrast, Groves envisions a bright line rule that runs the risk of forcing a party to incur the expense of defending an equitable action even though, despite the absence of oral testimony, the plaintiff’s prior motion to vacate was as fully developed as he or she desired.
Notably, the record in the case at bar appears to be more complete than the one in Barker. There, the court took judicial notice of the file in the prior action and found an order continuing the motion to vacate to permit the defendant to take the plaintiff’s deposition. This led Barker to conclude that the evidence was not restricted in the prior case and there were sufficient undisputed facts to support the conclusion that the issue had been fully presented. (Barker, supra, 191 Cal.App.3d at p. 227.) Here, similarly, depositions were permitted, a fact which indicates that the evidence was not restricted. This record takes it another step. It contains the transcripts of the Fox and Fong depositions. Thus, we have been able to verify that several key witnesses were cross-examined. The undisputed facts therefore establish that Gurney had a full opportunity to develop the issues of fraud and mistake and, as a parallel concern, whether there was personal jurisdiction.
Rohrbasser is also applicable. Gurney made a detailed presentation of the issues by submitting a declaration in connection with his motion to vacate. The evidence was supplemented by exhibits and deposition testimony. In our view, this was sufficient to trigger collateral estoppel for the following reasons. Gurney would not have gained anything by presenting oral testimony. The only people who know whether Bleau Fox was authorized to appear on his behalf are him, Bleau, Fox and Fong. Of those people, Gurney was in the worst position to prove his claims of extrinsic fraud or mistake. Because Bleau Fox appeared on Gurney’s behalf and wrote letters indicating that they were in contact with him, and because Gurney’s signature was affixed to a discovery response verification, Gurney’s claim that he did not know about the Ventura action was inherently suspect. Whether he asserted his claim in a declaration or on the witness stand was of no moment. For Gurney to prevail, he needed Fox and Fong to state that they were not authorized to represent him and that, as he declared, they never told him about the Ventura action. But Gurney refused to waive the attorney-client privilege. This means two things to us. The inference is that privileged communications exist and Gurney did in fact retain Bleau Fox. More so, it would not have mattered if Fox and Fong took the witness stand. They would have asserted the attorney-client privilege the same as they did in their depositions. Thus, it is apparent that Gurney developed the issue as fully as he desired to.
This brings us to our last point. Applying collateral estoppel to the facts of this case works to preserve the integrity of the judicial system. The depositions of Fox and Fong were nothing but a legal farce. They allegedly hold information that would have proven Gurney’s claims. Yet, incredibly, he refused to waive the attorney-client privilege. At one point Fong was examined by Jaffe. This was obviously for show because Gurney was the holder of the attorney-client privilege (Evid. Code, § 953) and refused to waive it. The absurd result was that Gurney prevented Fong from answering Jaffe’s questions. The judicial system cannot maintain its integrity if chicanery such is this is permitted to vex opposing parties.
DISPOSITION
The judgment is affirmed. Spartan and Bergstein are entitled to recover their costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.