Opinion
C076822 C077083
06-06-2018
MICHAEL DALE CLARK, Plaintiff and Appellant, v. MARK H. HARRIS, Defendant and Respondent. MICHAEL CLARK, Plaintiff and Appellant, v. NEVADA DEPT. OF CORRECTIONS et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34201300153151CUCOGDS)
In December 2013, appellant, Michael Clark (Clark) filed a 66 page civil action in Sacramento County Superior Court against the California Department of Corrections and Rehabilitation (CDCR), the Nevada Department of Corrections (NDOC), and numerous individuals employed either by CDCR or NDOC.
At its essence, Clark's complaint alleges that he is an inmate in the custody of CDCR but that he was transferred to and housed by the NDOC in violation of the Interstate Corrections Compact (ICC) entered into between the State of California and the State of Nevada.
Mark H. Harris (Harris), a CDCR contract attorney representing the individual CDCR defendants, was also named as a defendant in Clark's action, but only in the third cause of action alleging that he had committed fraud.
During the course of the proceedings, the trial court granted Harris' motion, known colloquially as a "SLAPP" motion, to dismiss the third cause of action pursuant to Code of Civil Procedure section 425.16. "SLAPP" stands for strategic lawsuits against public participation. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)
Also during the course of the proceedings, the trial court granted a motion to quash the summons and complaint brought by individual defendants Isidro Baca, Debra Noel, Jennifer Nash, Dillyn Keith, Gregory Smith, Quentin Byrne, James G. Cox, Jaime Rainone, Linda Adams, Amy Calderwood, David Fierro, Sheryl Foster, Dwight Neven, and Brian Shields, who were alleged to be employees of the Nevada Department of Corrections (NDOC employees).
Clark appeals separately from both orders (see Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13), and 904.1, subd. (a)(3)) arguing the trial court erred in ruling (1) the cause of action for fraud brought against Harris was a SLAPP action barred by the litigation privilege and (2) the NDOC employees were not subject to the jurisdiction of California's courts. At Clark's request, we have consolidated the appeals.
We affirm both orders.
FACTS AND PROCEEDINGS
In his complaint Clark alleges that he is a former member of the Aryan Brotherhood who cooperated with CDCR and the "court" concerning illegal activities of the Aryan Brotherhood and other gangs. His cooperation was disclosed to unauthorized individuals.
Thereafter, in 1999, Clark was confined in New Mexico pursuant to the ICC. In 2000, he was returned to the physical custody of CDCR and imprisoned at Mule Creek State Prison. In 2001, Clark filed a civil action against CDCR and New Mexico officials alleging they were violating his "rights and safety" which action was later settled.
Alleging that defendants breached the settlement agreement, Clark filed a second civil action against CDCR and New Mexico which also settled.
In 2006 and pursuant to the second settlement and pursuant to an Interstate Compact Placement Agreement between Nevada and California, Clark was incarcerated in Nevada. Clark personally agreed to his incarceration in Nevada.
After his later return to California, Clark filed the instant complaint alleging that the Interstate Compact Placement Agreement was procured by fraud and that it breached the terms of the second settlement agreement resulting in damage to Clark.
DISCUSSION
I
Harris' SLAPP Motion
As earlier noted, the only cause of action in Clark's complaint brought against Harris was the third cause of action for fraud. Therein, Clark alleged that Harris "made representations of material fact in court that transferring out of state would not interfere with continued litigation of plaintiff's active civil cases." Clark alleged these representations were false and that Harris knew that transferring to a state other than California would indeed interfere with his continued litigation because the receiving state was "responsible for providing an inmate constitutional access to the courts in the same manner it provides such access to inmates of the receiving state." Clark alleged Harris intended that Clark rely on those statements which he did when he agreed to be incarcerated in Nevada.
Harris filed a special motion to strike the third cause of action against him on the basis that the cause of action arose from protected conduct. The actual memorandum filed in support of the motion to strike is not contained within the record presented on appeal. But in his opposition to the motion to strike, Clark admitted that Harris' representations "occurred in court." Clark argued that, even so, his claim against Harris was not barred because Harris' statement was not authorized by law and thus not protected by the litigation privilege.
In granting Harris' motion, the trial court found the allegations against Harris were based solely on a statement or representation allegedly made by "Harris in a judicial proceeding in Sacramento County Superior Court on or about June 28, 2006." Therefore, the trial court found the first prong of the anti-SLAPP statute was met because "[a]ll communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected by the anti-SLAPP statute." Further, the court found Clark could not meet his phase two burden of establishing a probability of prevailing on the merits because conduct underlying the fraud cause of action was protected by the litigation privilege codified in Civil Procedure Code section 47, subdivision (b). Finally, the court found the privilege applied "irrespective of any malice or intent to cause injury."
"A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Code of Civ. Proc., § 425.16, subd. (b)(1).) Thus, the court engages in a two-step process, first determining whether the moving party has shown the plaintiff's action arises from protected conduct, and if it does, then determining whether plaintiff has made a prima facie showing of success on the merits. (See Navellier, supra, 29 Cal.4th at pp. 88-89.)
"In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which liability or defense is based." (Code of Civ. Proc., § 425.16, subd. (b)(2).) Rather than weighing the evidence and/or its credibility, we determine whether Harris' evidence has defeated Clark's evidence as a matter of law. (See Baughn v. Department of Forestry & Fire Protection (2016) 246 Cal.App.4th 328, 333-334, citing Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn.3.)
While we review the trial court's grant of the anti-SLAPP motion de novo (see Baughn, supra, 246 Cal.App.4th at p. 333), this does not relieve Clark of his duty to present thoughtful and reasoned argument in support of his claim that the anti-SLAPP motion should not have been granted. (See Soukup, supra, 39 Cal.4th at p. 294, fn. 20; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52; Cal. Rules of Court, rule 8.204(a)(1)(B)-(C).) Therefore, we limit our analysis to the argument actually presented and supported by Clark, which is that the trial court erred in its phase two determination that the litigation privilege bars his action against Harris for fraud. (Ibid.)
Once Harris established his statement had been made in a judicial proceeding, the burden shifted to Clark to show his complaint was "supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) In determining whether Clark has met this burden, the court will "not weigh the credibility or comparative probative strength of competing evidence" and will sustain the granting of the anti-SLAPP only if Harris' evidence defeats Clark's claim as a matter of law. (Ibid.; italics omitted.)
The litigation privilege found in Civil Code section 47, subdivision (b) protects communications made in judicial proceedings. (Civ. Code, § 47, subd. (b).) It has been applied expansively by California courts to all torts other than malicious prosecution and promotes several policies recognizing the problems posed by derivative tort actions, including the encouragement of zealous advocacy by attorneys protecting their client's interests. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 23 (Home Ins.).) The litigation "privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Id. at pp. 23-24, citing Silberg v. Anderson (1990) 50 Cal.3d. 205, 212.)
The litigation privilege operates to bar Clark's action as regards Harris because it is based solely on representations made by Harris during settlement negotiations in ongoing litigation. The privilege applies to statements made by counsel during settlement negotiations for the purpose of inducing settlement of an ongoing action. (Home Ins., supra, 96 Cal.App.4th at p. 24, citing Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 843; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1422; Joseph A. Saunders, P.C. v. Weissburg & Aronson (1999) 74 Cal.App.4th 869, 875.) Harris' statement to Clark made during settlement negotiations concerning Clark's ability to continue the pending California litigation is protected by the litigation privilege, as it was made in a judicial proceeding, by an attorney for one of the parties during settlement negotiations.
In Home Ins., supra, 96 Cal.App.4th 17, an attorney for the defendant in an automobile accident case misrepresented to the plaintiffs the limits of defendant's insurance coverage during settlement negotiations, the attorney representing that the policy limits available to the defendant was only $15,000 when in fact there was coverage up to $500,000. While not condoning the attorney's behavior, this court held nonetheless that, given the policies the litigation privilege is intended to further, the alleged misrepresentation made to induce settlement during the course of the lawsuit fell within the provisions of Civil Code section 47, subdivision (b).
So too here. The misrepresentations Clark alleges, made by attorney Harris during the course of settlement discussion occurring in Clark's earlier lawsuit, were necessarily subject to the litigation privilege. Clark cannot prevail on his claim of fraud.
Cabral v. Martins (2009) 177 Cal.App.4th 471 does not support Clark's assertion that there is no litigation privilege for a fraud cause of action based on contract. The cited discussion from Cabral concerns phase 1 of the anti-SLAPP inquiry, not the applicability of the litigation privilege. (Ibid.)
We disagree with Clark that the fraud allegedly perpetrated by Harris is "extrinsic" and thus subject to different treatment. Extrinsic fraud occurs when "the defrauded party was deprived of the opportunity to present his or her claim or defense to the court." (Home Ins., supra, 96 Cal.App.4th at p. 26.) The deprivation must not be a result of the aggrieved party's own conduct, thus if a party fails to reasonably investigate the factual basis of the alleged misrepresentation, it cannot later complain to have been extrinsically defrauded. (Id. at pp. 26-27 [failure to use discovery tools to uncover the true policy limit was intrinsic fraud].) Similarly, fraud is not extrinsic merely because a plaintiff alleges the other party to the settlement agreement never intended to fulfill the promises contained therein. (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 844.) Examples of extrinsic fraud include "concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed)." (Ibid.) Here, nothing prevented Clark from participating in his own litigation or investigating into Harris' representations before he settled his lawsuit. Representations concerning the effect or consequences of that agreement to settle did not amount to extrinsic fraud.
Clark's action against Harris is barred by the provisions of Code of Civil Procedure section 425.16 and the trial court did not err in so holding.
II
The Motion to Quash
Early in the litigation, the Nevada Department of Corrections and the Nevada Department of Corrections employee defendants moved to quash the service of summons and the complaint "on the ground that the Court lacks jurisdiction over [them] because [they] lack sufficient minimum contacts with California so as to subject them to personal jurisdiction."
After receiving points and authorities and arguments on the motion, the trial court denied the motion as to the NDOC ruling that the ICC agreement between California and Nevada conferred general jurisdiction with regard to the NDOC in California's courts and conferred specific jurisdiction in the California courts because the NDOC purposely availed itself of the benefits of California law, Clark's claims against the NDOC arise from "Nevada contacts with California," and because personal jurisdiction over the NDOC would be reasonable and would comport with "fair play and substantial justice."
Even so, the court granted the motion to quash as to the individual Nevada employee defendants. Noting that the individual defendants had been served with the summons and complaint by certified mail and not personally and noting that all were either current or former employees of the NDOC, and that each had asserted (1) that they had no connection with California, (2) that they do not reside in California, (3) that they were employed at all times relevant to the litigation by the NDOC and (4) that they had no direct contact with California, the court ruled that the record failed to demonstrate substantial contacts between the individual defendants and the state of California sufficient to confer personal jurisdiction over these defendants in the California courts.
We need not detail Clark's allegations against the NDOC employees but need only note that those allegations centered exclusively around his claim that, solely as employees of the NDOC, they fraudulently induced his agreement to the ICPA, and "breached the contract numerous times, failed to comply with various orders [made by the Sacramento Superior Court] retaliated and endangered [Clark's] safety as a result of litigation [sic], resulting in injury, damage, loss of primary benefits of the settlement, return to CDCR to more dangerous, onerous, and higher security confinement conditions than [Clark] originally left and bargained transfer from [sic], and other violations of his rights."
Clark argues the trial court's order granting the motion to quash service of the summons and complaint for lack of personal jurisdiction was erroneous because: "(1) [the NDOC employees] are subject to California jurisdiction under the ICPA and ICC; (2) [the NDOC employees] are subject to California jurisdiction under the ICC contract to which appellant was a direct and/or third party beneficiary; (3) [the NDOC employees] are subject to California jurisdiction under the ICC statutes of both states; (4) the order deprives [Clark], a California resident, a chosen [sic] and any other forum and renders inmates confined under the ICC stateless; and (5) the [NDOC employees] failed to show exercising jurisdiction would be unreasonable in the face of undisputed judicially noticeable evidence."
Preliminarily, Clark has asked us to take judicial notice of certain materials he asserts were noticed below, but were inadvertently left out of the clerk's transcript on appeal. He requests judicial notice of (1) the Contract Between the State of California and the State of Nevada for the Implementation of the Interstate Corrections Compact; (2) the California Department of Corrections and Rehabilitation form 294 (Interstate Compact Placement Agreement executed July 6, 2006); (3) the California Department of Corrections and Rehabilitation form 294 (Interstate Compact Placement Agreement executed December 11, 2007); and (4) certain sections of the Nevada Revised Statutes.
Having reviewed Clark's request and the record, we note the first two exhibits are contained within the record on appeal. We grant Clark's request to take judicial notice of Exhibits 3 and 4 but note that they are irrelevant to our decision on the motion to quash.
"A California court may exercise personal jurisdiction to the extent allowed under the United States Constitution and the California Constitution. (Code Civ. Proc., § 410.10; Vons Companies, Inc. v. Seabest Foods, Inc. [(1996) 14 Cal.4th 434, 444 (Vons Companies)].) Under the Fourteenth Amendment due process clause, a state court may exercise personal jurisdiction over a nonresident defendant who has not been served with process inside the state only if the defendant has sufficient 'minimum contacts' with the state so that the exercise of jurisdiction is reasonable and comports with ' "fair play and substantial justice." ' (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316-317 ; Vons Companies, at p. 444.)
"A nonresident defendant whose activities within the state are substantial, continuous, and systematic is subject to 'general jurisdiction' in the state, meaning jurisdiction on any cause of action. (Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445-446 ; see Vons Companies, [supra,] 14 Cal.4th at pp. 445-446.) Absent such pervasive activities, a defendant is subject to 'specific jurisdiction' only if (1) the defendant purposefully availed itself of the benefits of conducting activities in the forum state by purposefully directing its activities toward the state, thereby obtaining the benefits and protections of the state's laws (Burger King Corp. v. Rudzewicz, [(1985) 471 U.S. 462 (Burger King)]; Vons Companies, at pp. 449-451); (2) the dispute arises out of or has a substantial connection with the defendant's contacts with the state (Vons Companies, at pp. 452-453; see Burger King, at p. 472); and (3) the exercise of jurisdiction would be fair and reasonable. (Burger King, at pp. 476-478; Vons Companies, at pp. 447-448.) These guidelines are not susceptible of mechanical application, and the jurisdictional rules are not clear-cut. Rather, a court must weigh the facts in each case to determine whether the defendant's contacts with the forum state are sufficient. (Burger King, at pp. 478-479, 486, fn. 29; Kulko v. California Superior Court (1978) 436 U.S. 84, 89, 92 ; Vons Companies, at p. 450.)
"A plaintiff opposing a motion to quash service of summons bears the initial burden to demonstrate facts that support the exercise of jurisdiction. If the plaintiff satisfies that burden, it then shifts to the defendant to 'present a compelling case' that the exercise of jurisdiction would be unreasonable. (Burger King[], supra, 471 U.S. at p. 477; Vons Companies,[], supra, 14 Cal.4th at pp. 449, 476.)
"We review the trial court's factual findings in connection with its ruling on the motion under the substantial evidence standard. (Vons Companies, [], supra, 14 Cal.4th at p. 449.) If there is no conflicting evidence, whether the court can exercise personal jurisdiction is a legal question that we review de novo. (Ibid.) We review the trial court's ruling, not its reasoning. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.)" (Bridgestone Corp. v. Superior Court (2002) 99 Cal.App.4th 767, 773, 774.)
The facts relating to the jurisdictional issue here are undisputed. All of the NDOC employees sued here were working only for the Nevada Department of Corrections in Nevada at the time of their alleged civil "misdeeds" and there are no facts alleged or set forth in the motion to quash or Clark's opposition to that motion to show that any of them were at any time in California. They were served with the summons and complaint by certified mail in Nevada. We review the trial court's decision de novo.
We can easily dispense of Clark's attempt to vest jurisdiction over the employees in California's courts based upon their being employed by the Nevada Department of Corrections.
" . . . [J]urisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him; . . . . Each defendant's contacts with the forum State must be assessed individually. [Citation omitted.]" (Keeton v. Hustler Magazine, Inc. (1983) 465 U.S. 770, 781, fn. 13 .)
"Naturally, the parties' relationships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction." (Rush v. Savchuk (1980) 444 U.S. 320, 332 .)
Here there are no facts presented by Clark that the NDOC employees undertook at any relevant time activities within California which were substantial, continuous, and systematic thus rendering the employees subject to the general jurisdiction of this state's courts.
As for specific jurisdiction, Clark's showing is equally bleak. He presents no facts showing that the NDOC employees or any of them personally availed themselves of the benefits of conducting business in California by purposely directing their activities toward California thereby obtaining the benefits and protections of California's laws. We note that, to the extent Clark argues that California gained jurisdiction over the employees because one or more of them sent some unspecified correspondence to CDCR, we reject his argument if for no other reason that, if indeed that occurred, such mailings were not intended to gain the benefits and protections of California law.
Clark presents no facts showing that, as to the employees, the dispute arises out of or has a substantial connection with the employees' contacts with California.
Finally, Clark presents no facts showing that the exercise of jurisdiction by California as to the employees would be fair and reasonable.
Clark has failed to show a factual basis for California's assertion of jurisdiction, general or specific, over the NDOC employees. The trial court did not err.
DISPOSITION
The trial court's orders are affirmed. Each party will bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
HULL, J. We concur: RAYE, P. J. BUTZ, J.