Opinion
G052748
03-06-2018
LENORE ALBERT, Plaintiff and Appellant, v. MITCHELL B. HANNAH et al., Defendants and Respondents.
Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff and Appellant. Dickson & Dickson, Robert M. Dickson; Law Offices of Mitchell B. Hannah and Hallie D. Hannah for Defendant and Respondent Mitchell B. Hannah. Morris & Stone and Aaron P. Morris for Defendant and Respondent Pam Ragland. Law Office of Devin R. Lucas and Devin R. Lucas for Defendant and Respondent Devin R. Lucas. Law Office of David Seal and David Seal for Defendant and Respondent David Seal. Brutzkus Gubner Rozansky Seror Weber, Jeffrey A. Kobulnick, Susan S. Baker; Gingras Law Office and David S. Gingras for Defendant and Respondent Xcentric Ventures, LLC.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00738725) OPINION Appeal from orders and judgments of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed in part and reversed in part. Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff and Appellant. Dickson & Dickson, Robert M. Dickson; Law Offices of Mitchell B. Hannah and Hallie D. Hannah for Defendant and Respondent Mitchell B. Hannah. Morris & Stone and Aaron P. Morris for Defendant and Respondent Pam Ragland. Law Office of Devin R. Lucas and Devin R. Lucas for Defendant and Respondent Devin R. Lucas. Law Office of David Seal and David Seal for Defendant and Respondent David Seal. Brutzkus Gubner Rozansky Seror Weber, Jeffrey A. Kobulnick, Susan S. Baker; Gingras Law Office and David S. Gingras for Defendant and Respondent Xcentric Ventures, LLC.
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I. OVERVIEW
This is one of three appeals arising out of an omnibus complaint (Orange County Superior Court case number 30-2014-00738725) filed by lawyer Lenore Albert against multiple entities she alleges have defamed her. We will call her omnibus action the "725 action." The defendants in the 725 action fall into three categories:
(1) Internet companies Yelp, Inc. and Xcentric Ventures, LLC.
(2) Attorneys Mitchell B. Hannah, Devin R. Lucas, and David Seal.
(3) Non-attorney individuals who allegedly have made disparaging comments about Albert in various contexts, particularly in social media: Pam Ragland, George Olivo, Maegan Nikolic, Karen Rozier and Sheryll Alexander. Of these individuals, only Ragland has appeared in this or in one of the related appeals (specifically, G052204).
Besides Albert herself, the main thing these defendants have in common is that they brought anti-SLAPP motions, and prevailed in part, or entirely, on those anti-SLAPP motions. However, because different defendants were brought into the 725 action at different time, and accordingly obtained anti-SLAPP orders at different times necessitating notices of appeal at different times, the merits of the various anti-SLAPP motions are scattered over the three appeals: this one (G052748 or the Hannah appeal), the one involving Ragland (G052204 or the Ragland appeal) and a third one focused on the cross-complaint of attorney Seal (G053172 or the Seal appeal).
The anti-SLAPP statute is section 425.16 of the Code of Civil Procedure. SLAPP, as thousands of cases, including this one, now perfunctorily recite, stands for Strategic Lawsuit Against Public Participation. All references to the anti-SLAPP statute are to section 425.16 of the Code of Civil Procedure, and all undesignated statutory references are to the Code of Civil Procedure. Any undesignated reference to a subdivision is to section 425.16 of the Code of Civil Procedure.
When we refer to "prong one" of the anti-SLAPP statute we refer to whether a given claim qualifies for anti-SLAPP treatment in the first place. When we refer to "prong two" of the anti-SLAPP statute, we refer to whether the claim is sufficiently viable to withstand anti-SLAPP treatment. (See Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 820, fn. 10.)
The present appeal concerns the merits of the anti-SLAPP motions of only the three attorney defendants, Hannah, Lucas, and Seal. Xcentric Ventures and Ragland are also parties, but they are concerned with this, the Hannah appeal, only insofar as Albert's opening brief in this appeal challenges attorney fee determinations in their favor, the underlying basis of which is litigated in the other appeals.
The Seal appeal, G053172, has this twist to it: It concerns the denial of Albert's anti-SLAPP motion against Seal's cross-complaint against her. To give away the ending here: That is the one appeal where Albert substantially prevails. Just as we hold the trial court was correct to grant Hannah's, Lucas's, and (most of) Seal's anti-SLAPP motions against Albert, so the trial court should have granted (most of) Albert's anti-SLAPP motion against Seal.
Before dealing with the three attorney defendants specifically, we must establish some principles of law and practice that apply to Albert's arguments regarding all three defendants. If there is a unifying theme to these principles, it is that both adversaries and courts are entitled to some closure concerning the facts and the issues of law in a given proceeding. This can't be provided if cases take on the quality of the mythical Hydra that grows new heads whenever one is chopped off.
(1) Appellants cannot go outside the record in presenting new facts to appellate courts in support of overturning a trial court's order or judgment. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Accordingly, we deny Albert's motion, filed in January 2017, to augment the record here.
(2) In ascertaining the validity of an anti-SLAPP motion, the court looks to the operative pleading at the time of the motion. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) Put another way, no amendments are allowed after an anti-SLAPP motion is filed. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1263-1264; Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 170; Contreras v. Dowling (2016) 4 Cal.App.5th 774, 791; Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.) Accordingly, our analysis ignores causes of action and facts not alleged in Albert's second amended complaint or proffered in the evidence she submitted in opposition to the various anti-SLAPP motions under review in this appeal.
Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam) and Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 (Martin) are not to the contrary. Both arise out of the scenario that if a trial court (oxymoronically) grants an anti-SLAPP motion with leave to amend, it is the functional equivalent of denying the anti-SLAPP motion. The trial court here, though, indulged in no such self-contradictory rulings. The anti-SLAPP motions were simply granted. Both Nguyen-Lam and Martin are quite clear in agreeing with the general rule that amendments are not allowed after anti-SLAPP motions are filed. (See Nguyen-Lam, supra, 171 Cal.App.4th at p. 871 ["a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint]" and Martin, supra, 198 Cal.App.4th at p. 629 ["we stress what other cases exposited herein have strongly noted: section 425.16 provides no mechanism for granting anti-SLAPP motions with leave to amend"].)
(3) Challenges to a trial court judgment or order not raised in the opening brief on appeal may be treated as waived by the appellate court. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) Accordingly, we only address the arguments Albert made in her opening brief, and ignore any new arguments made by, or facts contained in, her reply brief. (See Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2 ["Rather than order this defective brief stricken [citation], we simply shall ignore all such references [citation]"].)
(4) Facts asserted in appellate briefing must be supported by record references. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 (Cassidy).) "[T]he appellate court," as one decision plainly put it, "is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs — e.g. 'C.T. pp. 1-20' . . . ." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) Accordingly, we shall ignore the many generalized allegations (mostly concerning statements individuals have made) which are scattered throughout Albert's briefing and not supported by specific record references to a voluminous record.
In all of this, the guiding principle is that an appellate court begins with the presumption that a trial court judgment or order is correct and it is the appellant's burden to show prejudicial error. (E.g., People v. Garza (2005) 35 Cal.4th 866, 881.)
Applying these principles, we shall affirm almost all of the trial court's ruling on the anti-SLAPP motions filed by the three attorney defendants as well as the attorney fee orders made in favor of the other defendants. We shall reverse in regard to one group of comments allegedly made by defendant Seal alleging unchastity on Albert's part. Those alleged statements are not connected with litigation or a matter of "public interest" involving Albert's ethics or competence as a high-profile anti-foreclosure anti-bank attorney.
II. ARGUMENTS PERTAINING TO ALL THREE ATTORNEYS
We first address two arguments Albert makes in regard to the anti-SLAPP orders which pertain to all three defendant attorneys. Albert doesn't think attorneys should receive the special privileges the anti-SLAPP statute gives them. Those special privileges arise, she notes because statements made in connection with judicial proceedings - which lawyers, after all, make all the time - are given anti-SLAPP protection. Plumbers, she points out, don't receive analogous protection in their work.
But right or wrong, that's the way the Legislature wrote the anti-SLAPP law. It was the Legislature that decided to give protection to statements made "in furtherance of the person's right of petition" (§ 425.16, subd. (b)(1)), as distinct from other activities, and it was the Supreme Court that said statements made in furtherance of a person's right of petition include statements in connection with lawsuits. If Albert thinks that's an unfair extension of privilege to what attorneys do, her complaint is with the law as the Legislature wrote it and the Supreme Court interpreted it, and there is nothing we can do about it.
The other general argument is that Albert should have been given an opportunity to amend her operative pleading. We have alluded to that one above. In the face of anti-SLAPP motions, plaintiffs are not allowed to evade the intent of the statute by amendment. One of the reasons plaintiffs (and cross-complainants for that matter) cannot amend after an anti-SLAPP motion is filed is to prevent a lawsuit from becoming a moving target. (See Jackson v. Mayweather, supra, 10 Cal.App.5th at pp. 1263-1264; Contreras v. Dowling (2016) 4 Cal.App.5th 774, 791; Hansen v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1547; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., supra, 122 Cal.App.4th at p. 1055.) If there is any area of the law where there is an antipathy to hydras, it is the anti-SLAPP statute.
III. THE ANTI-SLAPP MOTIONS OF THE THREE ATTORNEY DEFENDANTS
A. Mitchell Hannah
The background behind Albert's claim against Mitchell Hannah is provided by this court's published opinion in Womack v. Lovell (2015) 237 Cal.App.4th 772 (Womack). In Womack, a homeowner, represented by Hannah, sued a contractor, represented by Albert, based on the theory the contractor had done an "incomplete and sloppy job." (Id. at p. 776.) The contractor cross-complained. The jury returned a verdict in favor of the contractor, but Hannah sprang a last-minute surprise on the trial judge and Albert, arguing that since the contractor had not brought to court a verified certificate showing his contractor's license, he had to lose on his cross-complaint. Hannah, the homeowner's attorney, cited as authority for this proposition Advantec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621 (Adventec). We noted the trial judge was "taken aback," at what appeared to be a new theory advanced by the homeowner's attorney, but felt required to sign a judgment in the homeowner's favor. (Womack, supra, 237 Cal.App.4th at pp. 778-779.) The contractor appealed and we spent considerable space in Womack explaining why Adventec did not apply since the homeowner was judicially estopped to argue the validity of the contractor's license was ever an issue in the case. (Womack, supra, at pp. 780-789.) Hannah lost the case because he was too clever by half in first alleging the contractor was licensed and then stealthily denying it vis-à-vis the cross-complaint. (See id. at pp. 787-788 ["We think this case cries out for application of the sham pleading doctrine - all the more so since this case does not seem to involve an honest, aboveboard amendment of a prior statement in a complaint, but the semi-surreptitious withdrawal of that prior statement via a general denial in a cross-complaint."].) But the key point for the appeal before us now is that Albert's client stayed with her, persevered through the appeal, and won his case, even to the extent of a disposition directing the trial court to enter judgment for him on his cross-complaint. (Id. at p. 789.)
Albert's claim against Hannah here derives from a telephone message that was left on the contractor's cell phone from the homeowner's cell phone in the space of time between the judgment and the decision on appeal. We reproduce the message in the margin. The gravamen of the phone message was the proposition the contractor had lost at the trial level because of Albert's incompetence and if the contractor wanted to recover some damages, he would be well-advised to sue Albert for malpractice rather than spend his money on what the message claimed would be a hopeless appeal.
"David, [¶] You do not answer my calls. [¶] Go see another attorney. [¶] Seek another opinion. [¶] Let them know you lost on the Advantec on a nonjudgment[.] [¶] That you won the judgment[.] [¶] That your attorney didn't know what she was doing. [¶] You were not prepared. [¶] You can sue her for malpractice. [¶] For errors and omissions its called[.] [¶] If she even has Malpractice errors or omissions[.] [¶] Insurance [¶] This case is - is - is - not going to win on appeal[.] [¶] Its already been tried to appeal[.] [¶] [I]t has been turned down[.] [¶] It's been tried to go to the State Supreme Court[.] [¶] It didn't' happen[.] [¶] All she is doing is spending your money[.] [¶] She appeals every single decision [¶] She ever loses[.] [¶] She is a freak about that[.] [¶] Uh, if you want money you need to sue her because you lost the case because of her[.] [¶] Because you won it, and then you lost it because she had no idea what she was doing[.] [¶] Go seek a second opinion[.] [¶] Do yourself a big favor[.]"
As it turned out, no matter who gave the advice, it was spectacularly wrong.
Albert believed she knew who the culprit was and sued him in the 725 action, begun in August 2014. Hannah was not originally named in the 725 action, but had been by May 2015, in a second amended complaint. Albert's theory was that Hannah had either used his client's cell phone to call and leave the message himself, or had put his client up to it, thus violating the ethical rule in California against attorneys communicating with a represented party without the representative's consent. (Rules Prof. Conduct, rule 2-100). On this theory Albert sought damages for defamation, interference with economic advantage and intentional infliction of emotional distress.
We will skip over the byzantine complexities of the various stages of this case from the original complaint in August 2014 to the May 2015 second amended complaint, save to note the comments of Justice Ruth Bader Ginsburg, then on the District of Columbia Circuit Court, who once remarked that "Finnegan's Wake would be more easily summarized than the ensuing procedural history" of a case in front of her. (See Johnson v. Washington Metro. Area Transit Auth. (D.C. Cir. 1996) 98 F.3d 1423, 1425.)
The rule provides in pertinent part: "While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer."
Hannah filed an anti-SLAPP motion in June 2015. The trial court ruled that "[d]espite the alleged ethical violation, the conduct of Hannah is privileged," apparently referring to the litigation privilege in section 47, subdivision (b) of the Civil Code.
For purposes of applying the anti-SLAPP statute, we will assume, without deciding, that even though Albert presented no evidence Hannah himself made the phone call, or that he scripted it for his client Womack, Hannah communicated indirectly with a represented party in violation of rule 2-100. The next question, then, is whether the anti-SLAPP statute will support the trial court's order. Albert mainly concentrates her fire on prong one of the anti-SLAPP analysis, arguing that the phone message was insufficiently "in connection with" a lawsuit to be protected by the anti-SLAPP statute.
The issue of "indirect" communication is a complex one, since any attorney who communicates to another attorney is, in a sense, communicating indirectly with the party the other attorney represents. (See Dianne Molvig, Unbundling Legal Services Similar to Ordering a la Carte, Unbundling Allows Clients to Choose from a Menu the Services the Attorneys Provide (1997) 70-SEP Wis. Law. 10, 49 [noting "scripting is a controversial issue" in the context of a "lawyer's responsibility to not communicate indirectly with a represented party"].) That distinction has not been briefed or raised. Hence we express no opinion on the direct-versus-indirect issue here.
The dispositive case for our purposes is Rubin v. Green (1993) 4 Cal.4th 1187 (Rubin). Rubin is instructive for the present case because, like Hannah's phone message, it centered on an indirect attempt to bring pressure on a litigant to change course during ongoing litigation.
In Rubin, a mobilehome park owner sued one of the park's residents because she openly threatened to sue the park owner about certain defects. The owner (actually a co-owner) replied by saying he would not tolerate such conduct. Then he sued the resident and her attorney on theory that the resident was stirring up animosity against the co-owner. (Id. at p. 1191.) The Supreme Court held the letter was squarely within the litigation privilege of Civil Code section 47. In the process, the Rubin opinion reiterated the long established "'some relation' to judicial proceedings" test for gauging whether a communication was privileged under section 47(b): "For well over a century, communications with 'some relation' to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47 (b)." (Rubin, supra, 4 Cal.4th at p. 1193.) The court said the privilege was to be given "an expansive reach." (Id. at p. 1194.) And because of the "communicative" nature of the letter, it was within the scope of the privilege. (Id. at p. 1195.)
This court, in Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043 (Contemporary Services), applied the "some relation" test specifically to section 425.16 in a case holding that a litigant's email to an adversary's potential customers was within prong one of the anti-SLAPP statute, that is, it was "'in connection with an issue under consideration or review'" by a court. (Id. at p. 1055, quoting subd. (e).) Contemporary Services, involving the potential disruption of the relationship between a staffing company and its customers, seems particularly apt for purposes of Hannah's alleged phone message, involving, as it does, the potential disruption of the relationship between an attorney and her client.
And Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1 (Healy) arrived at the same conclusion. Again, the "some relation" test was used to uphold an anti-SLAPP determination by the trial court. The resident of a development did not want to allow her homeowners' association access through her property to perform weed abatement. The homeowners' association sued her. The attorneys for the association sent letters to the residents blaming her for additional cost of the weed abatement. The resident cross-complained, saying the letter defamed her. Again, both the anti-SLAPP statute and the litigation privilege were construed broadly to require striking the cross-complaint. Noting the letter expressly referred to the litigation over the access issue, the court held it was in connection with a judicial proceeding. (Id. at pp. 5-6.)
The litigation privilege does not extend to an attorney who controls trust funds pursuant to a court judgment intended to be used for the remediation of asbestos contaminated soil, but who then communicates with contractors in such a way as to sabotage the plan. (See Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1155, 1160-1164 (Rickley).) Though Albert relies on Rickley, it is a far cry from this case, which involves communications directly related to the very litigation in which Hannah was involved.
In the present case, Hannah's phone message to Albert's client directly referred to specific ongoing litigation, in essence making the argument that the recipient of the message should not pursue his appeal. Thus the phone message met prong one: it had some relation to judicial proceedings. And given that the litigation privilege encompasses all torts except malicious prosecution, the privilege subsumes Albert's claims for defamation, intentional interference, and intentional infliction. (See Rubin, supra, 4 Cal.4th at pp. 1193-1194 [the only exception to the reach of the litigation privilege is malicious prosecution].) Hence prong two is also satisfied. The trial court correctly granted Hannah's anti-SLAPP motion. B. Devin Lucas
Albert's case against Devin Lucas is a little more complicated. Like Hannah, Devin Lucas is an attorney who was opposing Albert in a civil case, this one entitled Kent v. Fin City Foods (Orange County Superior Court number 30-2014-00713792) (the Kent action), and, like Hannah, Lucas was not originally named in the 725 action. But by the second amended complaint Lucas too was being sued for defamation, intentional interference with contractual relations and intentional infliction of emotional distress.
The second amended complaint made only these two allegations against Lucas:
Paragraph 92: "From March 2014 through the present, Defendants Mitchell B Hannah, David Seal and Devin Lucas told plaintiff's clients that plaintiff was scamming them and her other clients by taking their money and then doing nothing to work on their case."
Paragraph 94: "From time to time on or about March 24, 2014 to the present, Defendants Mitchell B Hannah, David Seal and Devin Lucas told plaintiff's clients and others that Plaintiff was going to be disbarred soon and that her office was going to close so they should seek other counsel."
Lucas's anti-SLAPP motion was filed in July 2015. Albert and her clients Bonnie Kent and Teri Love provided declarations elaborating on the scamming assertion, which centered on a parking lot exchange that occurred on September 18, 2014.
According to Albert's declaration in opposition to Lucas's anti-SLAPP motion, there was a hearing in the Kent case on September 18, 2014, after which Albert deliberately left the courthouse (in the company of her assistant and clients Bonnie Kent and Teri Love) ahead of Lucas to avoid meeting him. But the group stopped to chat near the back parking lot of the courthouse for about five minutes, and Lucas caught up with them. Lucas approached and, according to Albert's declaration, "started yelling at my clients that I was scamming homeowners on reverse mortgages."
After Albert denied the scamming accusation, Lucas turned to walk away, then started yelling that Albert "steal[s] my client's money again." At that point Albert got her cell phone out of her purse and managed to record a part of the conversation. We reproduce what Albert was able to record in the margin.
"LENORE ALBERT: Lucas, where is your evidence of that?
"DEVIN LUCAS: [walking towards Ms. Albert] Evidence of what?
"LENORE ALBERT: Evidence that I am using client's money for foreclosure scams.
"DEVIN LUCAS: [Puts foot up on planter] Uh, about the two or three dozen reviews that I've read about you on social media that
"LENORE ALBERT: --And did you talk to any of those people? Do you know who they are?
"DEVIN LUCAS: Yeah.
"LENORE ALBERT: Oh, you did? Who did you talk to? Come on. No, you made the accusation. You said that I am scamming my clients. I - I deserve a right to know. Lucas, why are you walking away? Why are you afraid to answer the question Lucas? How--what proof do you think you have?"
Bonnie Kent recalled her own version of events that were substantially the same as the recording - essentially Lucas telling Albert's clients they would be better off without her. However, Kent allowed that Lucas had begun the conversation with the words, "Can we talk?" Teri Love provided a shorter version of the September 18, 2014 exchange, but included, apropos paragraph 94 above, the point that Lucas had encouraged Albert's two clients to report Albert to the state bar.
From Bonnie Kent's declaration:
"On September 18, 2014,after a court hearing my attorney, Ms. Lenore Albert, my daughter, Teri Love, Ms. Albert's assistant Bianca (do not know last name) and I were standing outside the court house by the stairway to the parking lot having a private conversation.
"Mr. Devin Lucas started to walk by and stopped.
"He looked at Ms. Albert and said, 'Can we talk'.
"Ms. Albert replied 'no.'
"Mr. Devin [sic] looked at me and said to me, 'Do you know you have a bad attorney. She does reverse mortgage scams.'"
"Ms. Albert said, that is not true and give me the proof. Mr. Lucas said, 'Yes you do and everybody knows it.'
"Ms. Albert said where is your proof and Mr. Lucas answered in a threatening manner and then Mr. Lucas walked away, then he came back toward us.
". . . .
"As he walked away, in a loud voice, he continued to utter derogatory statements about Ms. Albert to us."
Lucas based his anti-SLAPP motion on the proposition that he was simply opining on Albert's fitness as a lawyer, and in any event his comments were in connection with the Kent action. The trial court agreed, zeroing in on a letter sent via email attachment by Lucas to Albert, included with Albert's anti-SLAPP opposition papers, after the courthouse parking lot exchange. The letter included one more important detail: Lucas had initiated the exchange in order to "discuss the case" with Albert.
Here are the relevant parts of the letter:
"Foremost, I offered on numerous occasions to meet with you today and actually discuss the facts of the case, including potential resolution. I was optimistic you would hop on this opportunity to meet with your opposing counsel and discuss the matter for which you are obviously still unfamiliar with. When we arrived at the hearing, after learning of the Court's ruling; you threw a stack of papers at me, and claimed, "you've been served," and then abruptly walked out. The Court Clerk noted, "wow, she was mad at you."
"Upon exiting the building, I saw you and approached you and asked if we could meet to discuss the case. You said, "No!" You then shouted, in public, "You will be a defendant in this case!" and, "your second career sucks!" I began to walk away from you; at which point you then grabbed/held your phone in a menacing manner, began to chase me, waiving your phone at me, and continuing a verbal tirade. For another minute or more, until I actually reached my car, you were yelling across the parking lot, "Lucas," "Lucas come back here," and other inaudible explicatives [sic]."
Because of the "discuss the case" opening, the trial court reasoned Lucas' comments were "logically connected to the [Kent] litigation, since the entire exchange would not have occurred but for the litigation." The trial court further reasoned that Lucas had made his statements in "a place open to the public" - a courthouse parking lot - and in connection with an "issue of public interest," namely, Albert's "competence to practice law, and her ethics." It made no difference (a point, we note, in common with Albert's claims against Hannah) that Lucas had violated rule 2-100 by communicating with a represented party.
The court thus held that Lucas had satisfied both prongs of the anti-SLAPP statute, particularly given that Albert herself had alleged "that she is used to getting publicity for her work on consumer cases." But the court went on to opine, as a backstop, that to the degree there might be a tortious interference with contractual relations claim remaining, Albert had failed to show damages connected to the September 18, 2014 incident.
We cannot disagree with the trial court about this. The context of the September 18, 2014 incident showed, reading the uncontroverted facts in Albert's favor, as we must, that Lucas wanted to talk to Albert about settling the Kent case, and hunted her down to do it. The initiation of the conversation in the parking lot was Lucas' attempt to talk to Albert - as distinct from her clients - a fact corroborated by Bonnie Kent's declaration. Then, when Albert rebuffed him, Lucas "lost it," and began yelling to Albert's clients to convey his low opinion of their lawyer's ethics and competence.
On these facts, Lucas' outburst passed the "some relation" to litigation test set out in Rubin and applied by the appellate court to anti-SLAPP proceedings in Contemporary Services and Healy. Thus they came within prong one of the anti-SLAPP protection under subdivision (e)(2) of the anti-SLAPP statute, "(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." (Italics added.)
Prong two is satisfied insofar as Albert's claims against Lucas for defamation are concerned, because Lucas' remarks could not be proven false or were too vague, to be actionable. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 ["the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact"] & 390 [certain words are "too vague to be actionable"].) Calling Albert a bad attorney is just opinion, and the "reverse mortgage scams" snippet too vague.
However, we also recognize, as did the trial court, that a direct attempt to dissuade a client from continuing to employ a lawyer may still be the basis of a tortious interference-with-contract claim. (See Rosenfeld, Meyer & Susman v. Cohen (1983) 146 Cal.App.3d 200, 222 ["In modern times, interference most typically takes the form of persuading a party to end his contract or other economic relationship with the plaintiff, especially in the case of attorney-client relationships."].)
That said, the trial court was correct to note that Albert failed to show any damages from Lucas' remarks to the degree they were directed at Albert's clients in the Kent action. Both Kent and Love referred to Albert in their declarations as their current attorney in the Kent litigation, meaning Albert had not lost their business. We further note that none of the damages mentioned in Albert's declaration refer to any losses from income on the Kent case.
Accordingly, we affirm the anti-SLAPP order as far as Lucas is concerned. Just as in Hannah's case, Albert was not able to show actual breach or disruption of the contractual relationship she had with her clients, as is required by Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126, for a successful internal interference claim. C. David Seal
Like Hannah and Lucas, David Seal was not mentioned in the original complaint. But when Seal finally was named in the 725 action second amended complaint, it was not as a result of being an adversary counsel on a case against Albert. Rather, Seal was one of Albert's erstwhile allies who turned against her and was sued for his subsequent comments about her.
Because Albert's claims against Seal do not arise out of any specific litigation, they require different analysis than her claims against Hannah or Lucas. And because the factual basis is more complex, they are difficult. To illustrate this latter point, we reproduce in the margin one paragraph of Albert's complaint.
"By parsing out what each individual did and looking at that through a microscope does not put the case into its true context. For example, the court found it petty to point out that David Seal 'liked' Sheri Moody's comment that Ms. Albert was 'Lucifer' and referred to the Rozier and George Olivo TRO hearings. However, putting it into context that Sheri Moody was a former client of Ms. Albert and that three to fifteen attorneys were running around along with the sovereign citizens of the Cal 18 and CLOA telling people that Ms. Albert was scamming her foreclosure clients while threatening other clients like the Koshak family that if they did not drop Ms. Albert as their attorney that they would do everything in their power to make sure the Koshak family loses, his 'like' was a big deal. It fit into their entire scheme. It was posted before Ms. Albert sued Mr. Seal. They were not in litigation yet. Seal helped Moody with her litigation after Moody fell out of her attorney-client relationship with Ms. Albert. His butthurt memes and emails between him and Sheri Moody were before Ms. Albert sued Seal. Sending her the poem about a bird getting stabbed by a tree limb and then bleeds to death saying she is the bird, then serving her with a TRO falsely stating she has a boyfriend named Patrick Reeners and then uses a photo of a girl with a gun he posted years ago on Facebook to assert that she was inciting others to murder him was not only ridiculous but against victimizing the victim. He sends weird poems about birds dying while Karen Rozier sends emails that she told men with guns what her vehicle looks like and then shoot on sight as Soledad Corona, and Karen Rozier call Ms. Albert a whore and then Karen Rozier sends several emails for Ms. Albert to just kill herself - is a bit much to understand how the court can give any support to any of these defendants and what they have to say. Can no one see that they are manipulative and every time they attack Ms. Albert, they cry that they are being victimized?" (App. opn. br. at pp. 44-46.)
Doing yeoman's work on Albert's complaint and opposition to Seal's anti-SLAPP motion, the trial court was able to break down Albert's allegations into four categories. Albert does not contest the accuracy of the court's distillation, and the trial court did not dismiss all of Albert's claims against Seal in his anti-SLAPP motion - as he had the claims regarding Hannah and Lucas - only her claims against him for defamation and for making false statements to the state bar. The court left portions of Albert's cause of action against Seal for intentional infliction of emotional distress intact. (For the benefit of the trial court we detail below what particular claims of Albert's against Seal survive and what do not.)
The four categories the trial court used able to impose some order on the barrage of Albert's allegations against Seal were these: (1) a call to the Westminster Police Department in regard to a "Wave of Action" rally; (2) "unspecified" statements to Albert's clients she was taking their money and "not working on their cases": (3) "unspecified" statements that Albert's office would be closing soon and she would be disbarred; and (4) a statement that Albert was "sleeping with Patrick Reeners, her dog, her employees, or her family."
We agree with the trial court that (1) was protected as a report to the police, with the litigation privilege of Civil Code section 47 establishing both prongs one and two. (See Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1507 [alleged victim of child abuse's purportedly false report of child abuse to police held "absolutely privileged," requiring anti-SLAPP motion to be granted]; Fremont Comp. Ins. Co. v. Superior Court (1996) 44 Cal.App.4th 867, 869 ["section 47 of the Civil Code, already gives everybody - including insurers - the right to report crimes to the police, the local prosecutor or the appropriate regulatory agency, even if the report is made in bad faith"].)
The trial court further concluded statements (2) and (3) were substantively protected as exercises of Seal's right of free speech to comment on an issue of public interest, namely Albert's competence to practice law. Again, we agree. There were ample grounds before the trial court to conclude that Albert has made herself an issue of public interest.
First, there were Albert's own allegations in her second amended complaint to the effect that part of her damages in the 725 action involved her not getting publicity she was used to getting: (1) Albert complained one of her individual antagonists, Maegan Nikolic, criticized "journalists into blacklisting Ms. Albert's cases for any type of publicity," implying she ordinarily merits publicity from her cases; (2) Albert complained that as a "result" of Nikolic's conduct "news reporters have stopped calling the Law Office for comment and have stopped giving any publicity to her cases," again implying that publicity is normal for her; (3) Albert complained she had won two cases in the Ninth Circuit which were "hot news" items that should have "garnered" attention in the "mainstream press" but didn't because of Nikolic's conduct; and (4) Albert included the statement of a "media consultant" who helps get the stories of "OC-based foreclosure victims" into "mainstream media outlets and also in social media" who states she was "working with Lenore Albert as media support."
Beyond that, in his own anti-SLAPP motion, Seal referenced Yelp's previous anti-SLAPP motion, which included Albert's website. Much of that website is devoted to showcasing Albert's public profile and publicity garnered from her cases. We may take judicial notice of our prior opinion regarding Yelp's anti-SLAPP motion if only for its convenient encapsulation of Seal's allusion to Yelp's previous motion: "Yelp's evidence on the anti-SLAPP motion is even stronger [than Albert's own complaint] in that regard [in showing Albert as a crusader for small homeowners], showing that Albert has been the object of (mostly favorable) publicity in the press in regard to her efforts to stop allegedly wrongful foreclosures. And her own website is replete with the theme of her being a champion of the little guy against big banks, including a bundle of political cartoons, quotes from civil rights advocates, and political exhortations. The tenor of many of the third-party posts giving her bad reviews was that she was not living up to her image as such a champion." (Albert v. Yelp, Inc. (July 15, 2016, G051607) [nonpub. opn.] at p. 3.)
See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171 ["Pursuant to Evidence Code sections 459, subdivision (a) and 452, subdivision (d), on our own motion, we take judicial notice of the Court of Appeal, Second Appellate District, Division Four's unpublished opinion in that case, which is entitled Fink v. Hollywood Marble, Inc. (Nov. 16, 2006, B190153)"]; Sviridov v. City of San Diego (July 28, 2017, D069785) ___ Cal.App.5th ___, ___, fn. 2 ["On our own motion, we take judicial notice of our prior unpublished appellate opinions."].)
And finally, one of Albert's own allegations (in paragraphs 86 through 91 of her second amended complaint) against Seal was that he phoned Westminster police in regard to some sort of "'Occupy'" or "Wave of Action" rally in which Albert was involved as an activist, even if Seal's own alleged comment that Albert was "bussing in thousands of persons" was false. So Albert has acknowledged that she was connected to the organization of a very public "Occupy" event.
The upshot of all this evidence bearing on Albert's public persona is that Albert had presented herself publicly - and perhaps correctly; we take no position on that - as the legal champion of underdogs. Statements (2) and (3) both went directly to that persona, conveying the message that Albert wasn't quite the champion she had made herself out to be. That is, those statements were public comment on a public figure.
To the degree that Albert posits any legal argument about Seal's anti-SLAPP motion, it appears to be the assertion that Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) requires reversal. We must disagree. In Flatley, the River Dance impresario was being sued for rape, and the plaintiff's attorney tried to extort a settlement out of him: "At the core of Mauro's letter are threats to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he 'settled' by paying a sum of money to Robertson of which Mauro would receive 40 percent." (Id. at p. 329.) Because of the criminal nature of extortion, the court held the threatening letters to be outside the anti-SLAPP statute. (See id. at p. 333 ["Accordingly, because the activity forming the basis of Mauro's motion to strike Flatley's action was extortion as a matter of law and, therefore, not constitutionally protected activity for purposes of section 425.16, we further conclude that the trial court did not err when it denied Mauro's motion to strike."].) In the present case, for all his alleged bad-mouthing of Albert, Seal has done nothing that violates a criminal law, and Albert makes no attempt to show he has.
So we believe the trial court got it right as far as these first three categories are concerned. But the allegations in (4) - Seal's claims that Albert was having sex with various people and her dog - are different, and they result in the one part of this appeal which we are compelled to reverse. Those allegations are contained at paragraph 96 of the second amended complaint: "Defendant David Seal told others at various times from July 2014 to the present that plaintiff was committing legal malpractice, and that plaintiff was sleeping with Patrick Reeners, her employees, her family members and Pam Ragland, Karen Rozier and David Seal even told others Plaintiff was sleeping with her dog."
Aside from the malpractice reference in paragraph 96 (going to the issue of Albert's competence as a crusading anti-foreclosure attorney), the problem is the rest of the alleged statements do not pass prong one of the anti-SLAPP statute. They are not in connection with litigation, or an exercise of free speech on a matter of public interest, i.e., Albert's competence or ethics as an attorney. They are merely old-fashioned imputations of promiscuousness. Though Seal points out that Albert's declaration does not contain evidence he actually made those imputations, that only goes to prong two. If Albert really has no evidence Seal made the statements she claims he made, it is a matter for summary judgment, not anti-SLAPP. (See Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 32 ["The point is, if the moving defendant cannot meet the threshold showing, then the fact that he or she might be able to otherwise prevail on the merits under the "probability" step is irrelevant."].)
The trial court referenced exhibit W to Albert's declaration in opposition to Seal's anti-SLAPP motion in support of its conclusion that Seal's comments about Albert's alleged promiscuity were made in connection with litigation, specifically Seal's application for a restraining order. To be sure, the application operates on the assumption that Reeners is Albert's "boyfriend" who is "infatuated with [her]." But on examination we find no nexus between Seal's alleged statement that Albert is sleeping with Reeners and the TRO application. They are independent of each other. Albert's allegation is that Seal "told" various people (orally) that Albert was sleeping with Reeners, not that he made the assertion in connection with his own application for a restraining order.
For the sake of the trial court on remand, we now address what survived Seal's anti-SLAPP motion. To read Albert's opening brief, one would think nothing did. Albert seems to think the trial court struck Albert's intentional infliction of emotional distress claim against Seal in its entirety. It did not. A careful reading of the trial court's order shows only that it struck some of the bases supporting that claim, namely any complaints to the state bar, any allegedly false evidence given to a court, and any misrepresentation "in hearings" about a police search of Albert's office. Here is our perception of what survives after Seal's anti-SLAPP motion, the numbers corresponding to paragraph 148 of Albert's complaint:
Wrote the court: "However, the remaining allegations in paragraph 148 are not protected. They do not relate to issues of public interest, and are not statements made in connection with issues under review or in front of official proceedings. The protected activity appears to be only one component of the alleged harassment campaign."
Seal allegedly: (1) sent out "poems of birds dying in trees" and said Albert was "the dying bird"; (2) sent "chat messages of photos of people hanging themselves after having codefendant Karen Rozier telling plaintiff to die or that she should be hung"; (3) told "colleagues that [Albert] was stalking them and that she should be terminated from" a certain listserve; (6) "stalked [Albert] and her employees"; (7) videotaped her; (8) had Albert's "car towed during a hearing and then had her videotaped so that it could be uploaded and distributed to others;" (11) told "others that George Olivo did not attempt to assault [Albert] with a Statue at her office and that her car window was not blown out when both of those things really happened"; (12) intruded "into Plaintiff's email and spoofing her email address and then" sent "out awful emails from her email address to others; and (13) "advised her clients and others to extort plaintiff into free legal services or threaten to join the Defendants in harassing her."
We stress here that this list is merely for the benefit of the trial court and the convenience of the parties. We further stress that Seal has taken no cross-appeal from the denial of his anti-SLAPP motion in regard to the list above, so we express no comments on their substantive merits as underpinning an intentional infliction of emotional distress claim.
IV. THE ATTORNEY FEE PART OF THIS APPEAL
The balance of Albert's appeal are challenges to the attorney fees of two other defendants in the 725 action, Xcentric Ventures (Xcentric) and Pam Ragland. Both Xcentric and Ragland had their own anti-SLAPP motions granted; those motions are discussed in the G052204 Ragland appeal. For purposes of this appeal, it is enough to state that we completely affirm the anti-SLAPP orders obtained by Xcentric and Ragland in the G052204 appeal. We now deal with Albert's challenge to the fee awards proper. A. Xcentric
Albert makes two arguments concerning Xcentric's attorney fee award. The first is based on the substantive reason Xcentric won its anti-SLAPP motion: Xcentric won because section 230 of the federal Telecommunications Act of 1996 immunizes internet service providers. Albert's theory is that because the Telecommunications Act does not provide for fees, Congress somehow "took jurisdiction away from the state court" on the attorney fee issue.
The argument is creative. But so are most non-sequiturs. The actual text of section 230(c)(1) - the immunizing provision - does not say, as Albert says it does, that "no action may be maintained against an ISP." The actual language takes a functional approach: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (Italics added.) It is not a blanket immunization provision. It merely says that a court (or presumably other adjudicative body) should not treat a service provider as the "publisher or speaker" of content when it comes from "another" content provider. This language applies to all courts, and thus naturally encompasses traditional state defamation law, or indeed any system of law that potentially makes a publisher or speaker liable for some statement. So there is nothing in it that points toward depriving state courts of their jurisdiction to award attorney fees as a matter of state law when a litigant unsuccessfully alleges a state cause of action such as defamation.
The second argument is that the fee award itself was unreasonable. But that argument has been waived. Albert's brief does not even give us a record reference for the amount of the award, much less the supporting paperwork. (Cassidy, supra, 220 Cal.App.4th p. 628 [appellate court may disregard assertions and arguments that lack record references].) B. Ragland
Albert's complaint about the attorney fee award to Ragland is that it is unreasonable. Unlike Xcentric, Albert does include record references. But when one looks up those references, one finds they are nothing more than the civil register (docket sheet) at the end of the record. The references do nothing to show that the fee award to Ragland was unreasonable so again her argument has been waived. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["'It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.'"]; accord, Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 ["The court is not required to make an independent search of the record and may disregard any claims when no reference is furnished"].) Indeed, if anything, the size of the dockets lends support to the fee award. It shows the record has grown to Brobdingnagian proportions and it would take an attorney significant time to master it.
V. RECAP
We affirm, in their entirety, the anti-SLAPP orders obtained by Mitchell Hannah and Devin Lucas. We affirm the anti-SLAPP order obtained by David Seal insofar as it pertains to all claims for defamation except any statements allegedly made by Seal to the effect that Albert has a sexual relationship with Patrick Reeners, her dog, or other family members. We affirm the anti-SLAPP order obtained by Seal insofar as it pertains to any false statement he allegedly made about Albert to the state bar. We affirm the anti-SLAPP order obtained by Seal insofar as it determines Albert has no claim against Seal for intentional infliction of emotional distress based on statements to the state bar, allegedly false evidence in court, or any misrepresentation in a hearing.
Hannah, Lucas, and Ragland are the prevailing parties insofar as this appeal relates to them, and shall recover their costs on appeal. In the interests of justice, though, no costs on appeal are awarded Xcentric, which, as we explain the companion Ragland appeal, is the lucky beneficiary of Albert's own failure to include an extortion cause of action in her complaint.
Also in the interests of justice, no costs on appeal shall be awarded as regards Seal now, but the trial court will have jurisdiction to award costs to either Seal or Albert, depending on the ultimate outcome of Albert's intentional infliction of emotional distress claim against Seal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.