Opinion
G053449
03-06-2018
LENORE ALBERT, Plaintiff and Appellant, v. REED SMITH LLP et al., Defendants and Respondents.
Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff and Appellant. Reed Smith LLP, David J. de Jesus and Peter J. Kennedy for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2015-00784213) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff and Appellant. Reed Smith LLP, David J. de Jesus and Peter J. Kennedy for Defendants and Respondents.
Marvin Baldwin lost his home at a foreclosure auction in December 2010. (See Baldwin v. Bank of America (Feb. 7, 2014, B243789) [nonpub. opn] (Baldwin v. Bank of America ).) He sued Bank of America on a variety of causes of action. While his initial complaint was filed in propria persona, he was, at least as late as June 2012 when he filed a second amended complaint, represented by attorney Lenore Albert. (Ibid.) The trial court sustained Bank of America's demurrer to the second amended complaint in 2012. Baldwin, still represented by Albert, appealed. (Id. at pp. 8-10.) Baldwin lost the appeal, mainly because he could not pay his loan. (See id. at p. 18.)
The Baldwin v. Bank of America opinion is part of the record presented to the trial court. Because the version included in our record, for some reason, omits the page numbers of the slip opinion, we cite to the Lexis version of the case simply for reader convenience.
In 2015, Baldwin sued Albert for legal malpractice (Orange County Superior Court case number 30-2015-00784213). Albert responded with a cross-complaint for unpaid fees. She also named Bank of America and its law firm, Reed Smith LLP, as defendants. Her theory of the lawsuit involved a typical aspect of the underlying foreclosure litigation, namely there had been "national media reports" that Bank of America "had placed a moratorium on foreclosure sales during the holiday period in 2010," and people like Baldwin had relied to their detriment on those reports. (See Baldwin v. Bank of America, supra .) The Court of Appeal squarely rejected the theory, stating, "those allegations cannot serve as the basis for a valid cause of action under any theory." (Ibid.)
While disappointed, Albert thought she had "an oral contract" with Baldwin in which, according to Albert's verified cross-complaint, he "agreed to petition the California Supreme Court" on the grounds a class action false advertising claim (called by Albert the "FAL claim") was never mentioned in the appellate opinion. Albert felt the mere denial of her petition by the Supreme Court "breathed life" into that class action false advertising claim.
But things went awry when (quoting from Albert's cross-complaint, p. 6) "[s]ubsequent to the denial of the petition which breathed life back into the FAL claim, Mr. Baldwin joined in with Bank of America in trying to get all of Cross-Complainant's Bank of America cases dismissed." The reason? Albert alleged Reed Smith and Bank of America "induced [Baldwin] to become uncooperative/combative and to disaffirm and deny that the FAL claim had been preserved, which [Albert] is informed and believes and alleges thereon was all for the purposes of depriving [Albert] of her rightful compensation for services rendered to client and in order to negotiate a settlement and satisfaction of such judgment by client without Cross-Complainant's participation or consent." (Verified Cross-Complaint, paragraph 47, page 6.) In short, as she claims in her opening brief, Reed Smith and Bank of America "went behind her back" to contact her client and sabotage what she thought was a lucrative class action suit based on the moratorium. (App. Opn. Br. at p. 6.)
At the end of 2015, Reed Smith and Bank of America brought an anti-SLAPP motion against Albert's cross-complaint. Their motion was supported by the declarations of not only the Reed Smith lawyers who had worked on the Baldwin case (David J. de Jesus and Peter J. Kennedy) but also by Baldwin himself.
The anti-SLAPP statute is section 425.16 of the Code of Civil Procedure. 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.)
Baldwin's declaration was unequivocal: "During the time Ms. Albert and her firm represented me, I did not receive any communication, oral or written, directly from Reed Smith LLP. Rather, all communications regarding the lawsuits came to me through Ms. Albert. The one exception I remember is that on the day of oral argument before the Court of Appeal, I was introduced to a lawyer who represented the Bank of America. This lawyer and I did not discuss the case and Ms. Albert was present for the entire interaction."
Albert's declaration was not unequivocal. There is no mention of any communication between her erstwhile client Baldwin and any attorney with Reed Smith in her declaration in opposition to the anti-SLAPP motion.
The trial court granted the anti-SLAPP motion. On appeal, Albert's argument as to prong one of anti-SLAPP statute is based on the theory that a statement made to a represented party "behind [the] back" of the represented party's lawyer does not qualify as protected under the anti-SLAPP statute. She notes the trial court cited Gena Thera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901 (Gena Thera) in its minute order, but says Gena Thera is distinguishable because the case involved communication to opposing counsel as distinct from the represented client.
That might be true about Gena Thera, but the communicated settlement offer in the case was still "an offer to settle the ongoing lawsuit, a matter connected with issues under consideration or review by a judicial body." (Gena Thera, supra, 171 Cal.App.4th at p. 908.) We likewise note that the anti-SLAPP statute (subd. (e)) does not differentiate between statements to a represented party and to that party's lawyer. The statute refers to "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.)
And the test for qualification as related to litigation under subdivision (e) is the very broad "some relation" test. (See Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043; Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1.) Thus the alleged communication by Reed Smith to settle Baldwin's claims "behind Albert's back" nevertheless qualifies for anti-SLAPP statute protection.
As to prong two, Albert's argument is a variation on the theme of Womack v. Lovell (2015) 237 Cal.App.4th 772 (Womack). She argues Baldwin made a judicial admission in his original verified malpractice complaint against Albert to the effect that Bank of America had offered to settle his case, but Albert had not transmitted it to him. (The exact language from paragraph 14 of that complaint: "Marvin Baldwin is informed and believes that Bank of America made an offer to settle his case which was not transmitted to him by Defendants [Albert and her law office].") We cannot see how that bolster's Albert's position.
Womack involved inconsistent positions, entirely within the control of one party to the litigation, asserted by a homeowner in the course of a lawsuit against his contractor. At first, the homeowner said the contractor was licensed (at the time it was to his advantage to do so), but he later generally denied the contractor's cross-complaint, including a licensing allegation. At the last minute - when it was too late for the contractor to obtain a certified copy of his license - the homeowner changed his position and said the issue of the contractor's license was now contested. (See Womack, supra, 237 Cal.App.4th at pp. 778, 788.) This court was not amused by that flagrantly opportunist trial tactic, and held the homeowner was judicially estopped by his earlier express pleading that the contractor was licensed from saying the issue was not "contested."
But this case is not Womack. There is nothing inconsistent with the scenario that (1) while Albert was still representing Baldwin, Reed Smith conveyed a settlement offer to Albert which Albert did not pass on to her client, and the scenario that (2) at all times during the litigation Reed Smith only communicated with Albert. In fact, they are quite consistent. All negotiation traffic was between Albert and Reed Smith. We do not know how Baldwin might have learned of the purported settlement offer to Albert; it might easily have come from other parties. Albert's declaration in opposition to the anti-SLAPP motion notes that at least one other of Albert's former clients, one Soledad Corona, allegedly "turned on" Albert during the relevant time period.
Albert's reply brief relies on material in a motion to augment or take judicial notice of a variety of allegations involving other individuals besides Baldwin and his dispute with Bank of America. Trying to summarize the allegations is difficult, but it appears that Albert seeks to establish some larger conspiracy to deprive her of legal business than just the allegation that Reed Smith contacted her client Baldwin. Not surprisingly, Bank of America filed opposition to Albert's motion to augment and take judicial notice and has moved to strike Albert's reply brief. Albert, at page 8 of her reply brief, appears to concede that without the materials she sought her appeal cannot be "save[d]." ("Appellant is attempting to save the appeal by giving the appellate court the key documents to more fully understand the importance of the documents submitted in opposition to the Motion to Strike that were in the trial court record.")
We deny the motion to augment the record or otherwise take judicial notice of Albert's documents in other cases, because it is not fair to the trial court or one's opponent to spring new facts in the reply brief on appeal. (See In re Zeth S. (2003) 31 Cal.4th 396, 405 [importance of confining appellate review to record before trial court]; Pacific Gas & E. Co. v. Peterson (1969) 270 Cal.App.2d 434, 439 [party may not assert a new theory on appeal by "pointing to bits and pieces of evidence which were offered on other issues"].)
As for Bank of America's motion to strike the reply brief, there is a simpler way: "ECI moves to strike material from plaintiffs' opening brief. This motion is denied. When an appellate brief contains references to matters not supported by the record on appeal, we can simply ignore these references rather than strike them." (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 764-765; Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 372, fn. 1 [appellate court disregards improper inclusion in reply brief of matter outside record].) We therefore deny Bank of America's motion and ignore the extraneous material in Albert's reply brief.
Reed Smith's anti-SLAPP motion thus readily satisfied both prongs of the anti-SLAPP statute. We therefore affirm the anti-SLAPP dismissal of Albert's cross-complaint against Reed Smith and Bank of America. Respondents shall recover their costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.