Opinion
B159256.
7-22-2003
DEPARTMENT OF HEALTH SERVICES, Plaintiff and Respondent, v. NATHANIEL J. FRIEDMAN et al., Defendants and Appellants.
Nathaniel J. Friedman, in propria persona, and Barton A. Friedman for Defendants and Appellants. Bill Lockyer, Attorney General of the State of California, James Humes, Senior Assistant Attorney General, John H. Sanders, Lead Supervising Deputy Attorney General, Richard T. Waldow, Supervising Deputy Attorney General, and Gregory M. Cribbs, Deputy Attorney General, for Plaintiff and Respondent.
In February of 2000, the Department of Health Services sued appellants Nathaniel J. Friedman and the Law Offices of Nathaniel J. Friedman, bringing causes of action for violation of Welfare and Institutions Code sections 14124.70 et seq., unjust enrichment, fraud, and breach of fiduciary duty. The complaint alleged that Friedman had represented a child named Keyna Day in a medical malpractice action; that the Department sent appellants a notice of lien in the amount of $ 16,258, the sum which the Department, through the Medi-Cal program, paid for Days medical care; that the Day action partially settled, and that appellants failed to give the Department notice of the settlement and refused to pay the lien.
Welfare and Institutions Code section 14124.71 provides, in pertinent part, that "(a) When benefits are provided . . . to a beneficiary under this chapter because of an injury for which another person is liable, . . . the director shall have a right to recover from such person or carrier the reasonable value of benefits so provided." Welfare and Institutions Code section 14124.79 provides that "In the event that the beneficiary, his guardian, conservator, personal representative, estate or survivors or any of them brings an action against the third person who may be liable for the injury, notice of institution of legal proceedings, notice of settlement and all other notices required by this code shall be given to the director . . . . All such notices shall be given by the attorney retained to assert the beneficiarys claim, or by the injured party beneficiary, his guardian, conservator, personal representative, estate or survivors, if no attorney is retained."
Appellants request that we take additional evidence, in the form of various documents relating to Days case, is denied. The documents are not relevant to any issue raised by this appeal.
Appellants demurred on the ground that Day had not suffered an injury as that term is used in Welfare and Institutions Code section 14124.71 and, as to the fraud and breach of fiduciary duty causes of action, other grounds. The trial court sustained the demurrer. In Bonta v. Friedman (2001) 91 Cal.App.4th 819, we reversed, holding that Day had indeed suffered an injury as that term is used in the statute and that leave to amend should have been granted as to the other causes of action.
After the remittitur issued, the trial court entered an order granting the Department leave to amend. The Department filed a first amended complaint which brought the same causes of action and included the same factual allegations. Appellants filed several motions, including a motion to strike the complaint under Code of Civil Procedure section 425.16 PAGE CONTAINED FOOTNOTES , the "anti-SLAPP" statute. This appeal is from the denial of that motion. Our review is de novo. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, overruled on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.) We affirm.
Code of Civil Procedure section 425.16, subdivision (b)(1) provides that "A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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."
That statute also provides that "As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; . . ." (Code Civ. Proc., § 425.16, subd. (e).)
On an anti-SLAPP motion to strike, "The moving defendants 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." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The trial courts first task is to determine whether the defendant has made that threshold showing. In so doing, that court must consider the pleadings, and supporting and opposing affidavits stating the facts on which the liability or defense is based. (Ibid .) Appellants did not make the threshold showing here.
Appellants argue that Friedmans declaration, attached to the motion to strike, demonstrated that the Department "has been conducting a jihad against Appellants, because Appellants refused to knuckle under" to the Department. They cite several cases in which appellant and the Department were opponents. The declaration itself sets out Friedmans professional background, provides a version of the legislative history of Welfare and Institutions Code section 14124.70 et seq. and the Departments enforcement efforts, his understanding of his duty to his clients (which in his view precludes cooperation with the Department) and asserts that Welfare and Institutions Code sections 14124.70 et seq. are unconstitutional and that "common sense and the law never stopped the Department of Health Services and it began asserting a lien in bad baby cases notwithstanding the absence of an injury, as that term is understood in common parlance."
Nothing in the argument, or the declaration, demonstrates that the Departments complaint is in any way connected with appellants right to petition or to free speech.
Appellant also argues that the fact that the trial court originally ruled in his favor "conclusively establishes . . . that Appellants position was reasonable, was held in good faith and was not totally lacking merit." He does not tell us how his reasonableness is connected to any relevant legal issue, or explain why it would render the trial court ruling erroneous, and thus cannot prevail on this argument.
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: TURNER, P.J., GRIGNON, J.