Opinion
A131752
01-12-2012
THOMAS P. KENNEDY, Plaintiff and Respondent, v. PAUL CAMERA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. CIV1004014)
Thomas and Beverly Kennedy divorced after more than 20 years of marriage.During the contentious dissolution action, realty known as "Stonehouse"—owned by Thomas, Beverly and a third party as business partners—fell into financial trouble. According to Thomas, Beverly's lawyer in the dissolution action, Paul Camera, thwarted attempts to sell the property. After the dissolution action concluded, Thomas brought this action against Camera, alleging Camera was not only his ex-wife's lawyer, but also the partnership's lawyer and contending Camera committed malpractice and breached fiduciary duties in derailing the sale.
Because Thomas and Beverly have the same last name, we refer to them by their first names. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Camera filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 416.25), which the trial court granted in part. Camera appeals to the extent the trial court denied his motion. We conclude Thomas's ostensible malpractice and breach of fiduciary duty claims against Camera are based on litigation activity protected under the anti-SLAPP statute, and Thomas has failed to carry his burden of demonstrating any probability of success on these claims. We therefore reverse with directions to grant Camera's special motion to strike in its entirety.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Acquisition of Stonehouse
On September 1, 2001, Thomas, Beverly and Patrick O'Donnell created the Stonehouse Inn partnership to maintain ownership of and improve the so-called Stonehouse property located in Santa Rosa, California. Pursuant to the partnership agreement, Thomas and Beverly each contributed $460,267 to the venture in exchange for 25 percent interests in the distribution of any profits and losses. O'Donnell contributed $920,534 for a 50 percent ownership interest.
The Dissolution Action
In 2006, after more than 20 years of marriage, Beverly filed a petition for divorce from Thomas and retained Camera to represent her in the dissolution action. Thomas retained his own attorney.
To say the dissolution action was acrimonious is an understatement. According to Thomas, Camera, beginning in early 2007, engaged in outrageously inappropriate conduct. Thomas contends Camera accosted him with profane language and gestures; caused commotions in the courtroom; and assaulted him during O'Donnell's deposition by blocking Thomas's exit from the deposition room, threatening to "knock his block off," placing his fist under Thomas's chin, pushing Thomas twice while challenging him to a fistfight, and chasing Thomas out of the deposition room while saying Thomas was a "piece of shit" he was going to "squish."
In 2008, in the midst of the by-now rancorous dissolution action, Thomas wanted to sell Stonehouse. The property had been in and out of foreclosure, and, at one point during the dissolution action, Thomas "was forced to make approximately $150,000" in contributions to take it out of foreclosure. Ascend Health Corporation showed some interest in the property. There was also what Thomas terms a "back up offer" from an unnamed potential purchaser. In addition, Thomas, himself, put together other investors with some interest in purchasing. However, no sale occurred, and Stonehouse again went into foreclosure.
Thomas blames Camera for thwarting the sale of Stonehouse, causing Thomas financial loss and credit troubles. Thomas claims Camera and the partnership's real estate agent, Ernie Basoco, failed in their responsibility to have Stonehouse approved for commercial use (a contingency assertedly required by some of the potential purchasers). Thomas further claims Camera unilaterally and secretly told Basoco to refuse the "back up" offer, without telling Thomas of the offer's existence.
Near the end of the dissolution action, Thomas had become so angered by Camera's conduct he sought sanctions under Family Code section 271. In support of his sanctions request, Thomas cited Camera's vulgar language and gestures, Camera's assault and battery at the O'Donnell deposition, Camera's improper communications with a represented party, and Camera's alleged role in blocking the Stonehouse sale. The family court granted the motion, issued a blistering rebuke of Camera's behavior and awarded $24,849 in sanctions in its final statement of decision in the dissolution action, filed on March 24, 2010.
Thomas and Beverly also disputed who should pay Beverly's attorney fees in the dissolution action pursuant to Family Code sections 2030 and 2032. Beverly asserted Thomas should shoulder "in excess of $275,000 in fees," the entire amount of Camera's legal bills. Thomas disagreed. The family court also addressed this contentious issue in its final statement of decision and ruled Thomas was responsible for $100,000 of the fees. In arriving at this apportionment, the court considered a host of factors, including the "time consumed" and the "skill employed" by Camera. While the court was again critical of Camera's handling of the case as unprofessional and laced with delay and intimidation tactics that unnecessarily drove up litigation costs, it in no way suggested Camera's bills were inaccurate or that Camera had wrongly billed Beverly for work for another client.
Family Code section 2030 provides in pertinent part: "In a proceeding for dissolution of marriage . . . the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding . . . ." (Fam. Code, § 2030, subd. (a)(1).) It also states the court "shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary . . . ." (Id., subd. (c).) Family Code section 2032 provides, in turn: "The court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (Fam. Code, § 2032, subd. (a).)
Earlier in the action, the family court had authorized $175,000 in payments to Camera from a fund it later determined was Thomas's separate property. Therefore, the family court's net fee ruling actually ordered Beverly to reimburse Thomas $75,000.
The Instant Litigation
On August 2, 2010, after the final status and property orders were issued in the dissolution action, Thomas sued Beverly, Camera, Basoco and others for alleged transgressions related to that action and the failed Stonehouse sale. One month later, on September 1, 2010, Thomas filed a first amended complaint (the operative pleading in the case) alleging 17 causes of action. The first three (for assault, battery, and false imprisonment) relate to Camera's behavior during the O'Donnell deposition. The sixteenth (for abuse of process), concerns Camera's alleged use of the dissolution action to prevent refinancing of another property called "Clocktower." The fourth (for negligence), fifth (for breach of fiduciary duty), eleventh (for negligent infliction of emotional distress), twelfth (for intentional infliction of emotional distress), thirteenth (for malpractice), and seventeenth (for intentional interference with prospective economic relations) are all based on Camera's alleged interference with the Stonehouse sale. The remaining seven causes of action do not concern Camera.
While the eleventh and twelfth causes of action also allude to Camera's alleged threats and violence, Thomas, as he did in the trial court, focuses only on the Stonehouse-related aspects of these causes of action and continues to characterize them as "malpractice causes of action" against Camera.
Shortly after Thomas filed suit, Camera underwent hip surgery. Complications forced him into the intensive care unit and prevented him from participating in the lawsuit. He died shortly thereafter.
On November 2, 2010, Camera's lawyer filed a special motion to strike the causes of action in the first amended complaint related to alleged interference with the Clocktower and Stonehouse properties—that is, the causes of action for negligence, breach of fiduciary duty, malpractice, abuse of process, intentional interference with prospective economic relations, and negligent and intentional infliction of emotional distress. Camera asserted these causes of action constituted SLAPP (strategic lawsuit against public participation) actions under section 416.25 because they arose in connection with his representation of Beverly in the dissolution action, activity protected under the statute, and because Thomas could not show a likelihood of succeeding on them.
In support of his special motion to strike, Camera's attorney, Alex Graft, submitted a declaration declaring on information and belief that Camera did not represent Thomas and Thomas had his own lawyer in connection with the Stonehouse sale. Camera did not submit a declaration himself due to his medical condition at the time and ultimate death.
Thomas opposed the motion to strike and submitted his own declaration regarding representation. Thomas conceded Camera was Beverly's lawyer in the dissolution action, and in fact recounted Camera's indecorous behavior on her behalf in that action. Thomas also declared, however, that Camera began acting as the legal representative for the Stonehouse partnership (and thus also began representing Thomas). He asserted Camera gave directives to Basoco (the partnership's real estate agent), interacted with Basoco, negotiated with potential Stonehouse buyers, worked up an accounting for the partnership, and counseled the partnership's managing agent, O'Donnell—all on behalf of the partnership.
As support for these assertions, Thomas attached "Camera's billing records obtained in discovery in the Dissolution Proceedings," and claimed the records showed Camera was, in fact, representing not only Beverly, but also the Stonehouse partnership. However, the billing records expressly differentiated between "Thomas," "O'Donnell," and "Client" (Beverly) and nowhere suggested Camera was charging Beverly for work actually performed for the partnership. And while the billing records revealed Camera, indeed, conversed with Basoco, O'Donnell, and prospective Stonehouse buyers, these tasks were lumped together with numerous other tasks pertaining to the dissolution action. In fact, some of the references Thomas claimed showed Camera was also the lawyer for the Stonehouse partnership identify the work as obtaining information (from Basoco, O'Donnell, and prospective Stonehouse buyers) for use in declarations and to obtain court orders—in the dissolution action. Moreover, another entry stated Camera had advised O'Donnell (the majority owner of the partnership) to get his own attorney "for dealing with Stonehouse."
Thomas also submitted two notes from Basoco in support of his claim that Camera was representing both Beverly and the Stonehouse partnership. One of these notes, scribbled on cropped-sized, letterhead note paper, was to O'Donnell enclosing a contract "at the directive of Paul Camera." Another, again scribbled on notepaper, was to a third party stating "[a]t the request of Paul Camera, enclosed is the full binder related to the Stone House properties sales transaction."
Camera filed a written reply and additional declarations. Beverly declared Camera represented her in the dissolution action, she never retained Camera to work for the Stonehouse partnership, Camera never represented the partnership during the dissolution action, the partnership never had any agreement for legal services with Camera, and the partnership never paid Camera for legal services. She also declared Thomas had his own attorneys for the dissolution action and sale of Stonehouse. O'Donnell similarly declared Camera "was never retained by me as legal counsel for my 50% interest in the Stonehouse Inn" and "did not perform legal services on my behalf."
The trial court heard Camera's special motion to strike on March 4, 2011, and asked for supplemental briefing on a case Camera cited for the first time at the hearing, Peregrine Funding, Inc. v. Sheppard Mullin Richter and Hampton, LLP (2005) 133 Cal.App.4th 658 (Peregrine Funding)After receiving briefs from both parties, the trial court issued a mixed ruling on March 26, 2011.
Peregrine Funding is one of several cases concerning the applicability of the anti-SLAPP statute to lawsuits against lawyers for allegedly breaching the duty of loyalty by concurrently or subsequently representing a client's adversary. (Peregrine Funding, supra, 133 Cal.App.4th at pp. 670-671.) We discuss this case and others in the next section of this opinion.
As an initial matter, the court found statements regarding Carmen's representation in Graft's declaration inadmissible because they were not based on personal knowledge.
The trial court granted Camera's special motion to strike as to the abuse of process cause of action which concerned the Clocktower refinance. Since that cause of action was based on measures Camera employed before the family court to delay Clocktower's refinance and have it characterized as community property, the trial court concluded Camera's actions were protected "statements[s] . . . made before a . . . judicial proceeding" and privileged conduct. The trial court denied the motion as to the causes of action relating to the failed sale of Stonehouse. The court concluded "Camera has not shown that the sale of the partnership property was an issue under consideration in the dissolution action" and therefore Camera's alleged efforts to block its sale were not litigation-related activity protected under the anti-SLAPP statute. Accordingly, the court did not address the status of Camera's representation, nor did it consider whether Thomas had demonstrated any probability of prevailing on his "malpractice" and "breach of fiduciary" claims against Camera.
Camera filed a timely notice of appeal challenging that part of the trial court's order denying his special motion to strike.
Thomas did not cross-appeal as to that part of the order granting Camera's motion.
II. DISCUSSION
"The Legislature enacted the anti-SLAPP statute to address the societal ills caused by meritless lawsuits that are filed to chill the exercise of First Amendment rights. [Citation.] The statute accomplishes this end by providing a special procedure for striking meritless, chilling causes of action at the earliest possible stages of litigation." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443.)
The statute provides: "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." (§ 425.16, subd. (b) (1).)
" 'Under the statute, the court makes a two-step determination: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1). . . .)" [Citations.] "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." [Citation.]' " (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609 (Tutor-Saliba))
An appellate court reviews an order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley); Gerbosi v. Gaims, Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at p. 444; Tutor-Saliba, supra, 136 Cal.App.4th at p. 609.) This includes whether the challenged activity is protected under the statute and whether the plaintiff has established a reasonable probability of success on his or her claim. (Tutor-Saliba, supra, 136 Cal.App.4th at pp. 609-610.)
Protected Activity
The anti-SLAPP statute applies only to protected activity—that is, activity "in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." (§ 416.25, subds. (b)(1), (e).) Such activity 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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 416.25, subd. (e).)
"[T]he party moving to strike a cause of action has the initial burden to show that the cause of action 'aris[es] from [an] act ... in furtherance of the [moving party's] right of petition or free speech.' " (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
"In determining whether a defendant sustained its initial burden of proof, the court relies on the pleadings and declarations or affidavits." (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329 (Brill),overruled on other grounds by Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 25; § 425.16, subd. (b)(2); see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) "[T]he court necessarily looks to the allegations in the operative complaint," but this "does not preclude a court from examining affidavits in making the first prong assessment; in fact the Legislature explicitly permits a court in making the first prong assessment to rely on affidavits. (Code Civ. Proc., § 425.16, subd. (b)(2) ['In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'].)" (Brill, supra, 132 Cal.App.4th at pp. 329-330.)
Thus, in some cases—as in this case for reasons we discuss shortly—it is important for the court to look past the allegations in the complaint and consider declarations or other evidence to obtain a complete picture of the plaintiff's claims. (See Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630 [court refused to "wear the blinders that appellants have fashioned for us" by insisting the court look only at the complaint].) "Our Supreme Court has recognized the anti-SLAPP statute should be broadly construed [Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60, fn. 3] and that a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort or contract claim when in fact the claim is predicated on protected speech or petitioning activity." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272 (Hylton).)
Camera contends the disposal of Stonehouse was an issue in the dissolution action in which he represented Beverly, and only Beverly, and therefore the causes of action pertaining to this property are protected under the anti-SLAPP statute because they are based on statements "made in connection with an issue under consideration or review by a . . . judicial body." (§ 416.25, subd. (e)(2).) Camera points out Thomas, himself, has alleged "in the Dissolution Proceedings, [he] was forced to make approximately $150,000 [in payments] to take the Stone House Property out of foreclosure the first time it went into foreclosure." (Italics added.) Camera also points out the family court ultimately ordered Beverly to reimburse Thomas for half of the payments he made to keep Stonehouse afloat, after determining the money had come from a fund that was Thomas's separate property. Camera additionally points to his billing records, which Thomas placed before the trial court and acknowledged had been "obtained in discovery in the Dissolution Proceedings." (Italics added.) Camera observes the references to Stonehouse in these records are part of block entries that also enumerate other tasks clearly pertaining to the dissolution action. In fact, some of the references to Stonehouse expressly mention litigation tactics. For example, the May 27, 2008, entry states Camera would "otherwise make [an] ex parte application" regarding "sale of Stonehouse by borrowers to third parties," and the July 8, 2008, entry states Camera "gave NOTICE that Thursday [he] will make ex parte motion to compel sale of Stonehouse based on lack of income."
Thomas, on the other hand, contends the trial court correctly determined sale of the Stonehouse property was not an "issue under consideration" in the dissolution action. (See § 416.25, subd. (e)(2).) He points out the family court never characterized it as separate or community property and never ordered a sale of the property. Nor could it, order a sale, claims Thomas, since O'Donnell owned 50 percent of the property and was not a party to the dissolution action. Thomas further contends the anti-SLAPP statute does not, in any event, permit striking malpractice claims against one's own lawyer. Thomas asserts he has alleged "malpractice causes of action" against Camera, whom he claims was the partnership's lawyer—and thus was his own lawyer—as well as Beverly's lawyer.
Issue Under Consideration by a Judicial Body
We first consider the trial court's reasoning for denying Camera's special motion to strike—that the sale of Stonehouse was not "an issue under consideration" in the dissolution action and therefore Camera's actions in connection with the property were not litigation-related activity protected under the anti-SLAPP statute. We conclude the trial court took too narrow a view of what constitutes protected activity under section 416.25, subdivision (e)(2).
Following the Legislature's mandate that the anti-SLAPP statute "shall be construed broadly" (§ 425.16, subd. (a)), "[c]ourts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' " (Neville, supra, 160 Cal.App.4th at p. 1268.) The statute is "construed broadly, to protect the right of the litigants to 'the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.' [Citations.]" (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) Accordingly, the courts " 'have looked to the litigation privilege as an aid in' " construing the bounds of the anti-SLAPP statute, even though the protections afforded by the privilege and the anti-SLAPP statute are not identical. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479 (Feldman) ["the California Supreme Court has repeatedly recognized the relationship between the two"], quoting Flatley, supra, 39 Cal.4th at pp. 322-323.)
Courts occasionally blur the line between conduct falling under subdivision (e)(1)—"any written or oral statement or writing made before . . . a judicial proceeding"—and subdivision (e)(2)—"any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body"—and label any such protected activity as "litigation-related" activity, sometimes without discussing the distinction between the subdivisions. (See, e.g., Flatley, supra, 39 Cal.4th at pp. 321, 324 [using this term of art]; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37 (Rhode)[discussed below, making no reference to either subdivision]; Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480 (Cabral)["Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all 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 as petitioning activity by the anti-SLAPP statute."].) In this case, Camera has only sought protection under subdivision (e)(2), effectively conceding the conduct about which Thomas complains did not occur in front of the family law court. (Compare, e.g., Paul v. Friedman (2002) 95 Cal.App.4th 853, 865 (Paul)[subdivision (e)(1) not applicable to statements not "made in" or "before" a proceeding] and Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1288 (Neville) [subdivision (e)(2) applicable to litigation-related statements made outside of court].)
While subdivision (e)(2) of the anti-SLAPP statute does not protect each and every statement made by a litigant or lawyer after litigation has commenced (see, e.g., Paul, supra, 95 Cal.App.4th at p. 866 ["harassing investigation" into "personal matters bearing no relationship to the claims asserted in the arbitration" not protected because such matters were not under consideration by the tribunal]), it nonetheless protects a wide range of conduct. Such conduct includes out-of-court litigation-related tactics—whether or not they pertain to a singular issue addressed directly by a court and, indeed, even when they involve conduct preceding litigation or conduct involving nonparties. Examples include: alerting a company's court-appointed liquidator about a plan of related entities to auction off some of the company's assets, thereby appearing to thwart the sale of assets potentially at issue in the liquidation proceeding (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167 (Fremont Reorganizing));an attorney referral service administrator's "attorney selection and litigation funding decisions" (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 267-268); pre-lawsuit threats in anticipation of litigation (Feldman, supra, 160 Cal.App.4th at p. 1481); warning non-parties of intent to file future lawsuit (Neville, supra, 160 Cal.App.4th at pp. 1267-1270); sending a "litigation update" email to customers accusing competitor of litigation misconduct (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055); and solicitation of litigation funding (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 821-822, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5 [when "statements were made in the context of exhorting shorthand reporters to contribute to the cost of pursuing that litigation . . . there is a strong showing those statements are rationally connected to the litigation itself"].)
As the court observed in Cabral, supra, 177 Cal.App.4th at pages 480, 482 the anti-SLAPP statute protects "all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding," including communications preparatory to a judicial proceeding when "intimately intertwined with" it. Accordingly, in Cabral, the court readily concluded the defendant lawyer's revision of a will some months before the testator died was protected conduct because the revised will would eventually and inevitably be filed with a probate court for implementation. (Id. at pp. 482-483.)
Rohde, supra, 154 Cal.App.4th 28, also involved a nascent probate dispute and underlying conduct akin to the conduct by Camera at issue here. In Rohde, a brother and sister quarreled and threatened litigation over the distribution of assets in their father's estate. In an attempt to settle the dispute, the siblings agreed to sell one of properties and split the proceeds. (Id. at. pp. 32-33.) "During the attempted sale and distribution of that property, [the sister] allegedly instructed [the listing agent] to exclude [the brother's attorney] from the distribution of documents relevant to the sale." (Id. at p. 36.) In response, the brother's attorney left a voice message for the listing agent accusing him of colluding with the sister to defraud the brother of his interest in the property. (Ibid.)The sister then sued her brother for interfering with negotiations to sell the property and sued her brother's attorney for slander. (Id. at pp. 33-34.)
The lawyer prevailed on a special motion to strike. His voice messages "were statements made in connection with an asset that was the subject of the dispute in which both plaintiff and defendant threatened litigation. In short, the specter of litigation loomed over all communications between the parties at that time. Thus, the messages concerning the subject of the dispute and threatening appropriate action in that context had to be in anticipation of litigation 'contemplated in good faith and under serious consideration.' [Citation.] Accordingly, defendant's communications in issue satisfied his burden under the first step in applying the anti-SLAPP statute by establishing that his conduct was protected activity under that statute." (Rohde, supra, 154 Cal.App.4th at p. 36.)
Cabral and Rohde not only illustrate the breadth of litigation-related activity protected under the anti-SLAPP statute, they also are of note because they involved "litigation" of unusual breadth, namely probate actions which can encompass a vast array of issues which may or may not be directly presented to or addressed by a probate court. Yet, as Cabral and Rohde make clear, a lawyer's work on such probate-related issues is protected, litigation-related activity (and even if it is done before a court action is ever filed).
The underlying "litigation" in the instant case—a dissolution action—is equally, if not, more expansive in nature. Dissolution actions are wide-ranging affairs that touch on all facets of the spouses' property interests. For example, under Family Code section 2040, "upon service of the petition for dissolution both parties became subject to a temporary restraining order against their transferring or disposing of any property, 'whether community, quasi-community, or separate,' without an order of the court or written consent of the other party, 'except in the usual course of business or for the necessities of life . . .' (§ 2040, subd. (a)(2).)" (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1102.) Further, a family court, under Family Code section 2045, can issue restraining orders against non-parties involving such property without joining the non-parties in the dissolution action. (Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1393; Schnabel v. Superior Court (1993) 21 Cal.App.4th 548, 552 [interpreting former version of statute].)
Thus, the Stonehouse property, even if owned in part by a non-party, was subject to control by the family law court. (See Fam. Code, § 2045.) And even if the real estate, itself, was not subject to characterization as Thomas's or Beverly's community or separate property, their 25 percent ownership interests were subject to characterization, as well as the oversight and control of the family court. (See In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 523 [reviewing characterization of a spouse's partnership profits]; cf. In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1293 [determining division of assets based on whether or not partnership existed between husband and wife].)
There is also no dispute that Camera, at the very least, represented Beverly in the dissolution action, including dealing with her ownership interest in Stonehouse. Indeed, as we have discussed, Camera's billing records include specific litigation tasks pertaining to Stonehouse.
Accordingly, given the breadth of "litigation-related" activity for purposes of section 425.16, subdivision (e)(2), the mandate that the anti-SLAPP statute be broadly construed, and the expansive nature of dissolution actions, we conclude the trial court erred in ruling the handling and disposition of the Stonehouse property, and specifically Thomas's and Beverly's ownership interests therein, did not involve issues "under consideration" in the dissolution action and therefore Camera's statements pertaining thereto were not protected activity under the statute. (See Rohde, supra, 154 Cal.App.4th at p. 36; cf. Fremont Reorganizing, supra, 198 Cal.App.4th at p. 1167 [thwarting sale of asset potentially subject to proceeding was protected activity].)
Claims Against One's "Own" Lawyer
We therefore turn to Thomas's assertion that the anti-SLAPP statute does not apply, in any event, to legal malpractice and breach of fiduciary duty claims against one's own attorney. As this assertion implicitly acknowledges, cases involving the application of the anti-SLAPP statute to lawsuits against lawyers typically fall into one of two categories.
When a client or former client sues his or her own attorney, based on actions or inactions on behalf of that client, many courts have concluded the attorney cannot invoke the anti-SLAPP statute. (See, e.g., Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 576-580 [collecting and discussing cases holding suits based on the alleged incompetence of one's own attorney not a SLAPP, and distinguishing suits against another's attorney]; PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1221, 1227 [holding suit against own attorney not a SLAPP, and drawing distinction between such suits and suits against another's attorney]; Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539-1540 [garden variety malpractice suits do not chill expression but promote zealous and competent representation; such suits are "vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect"]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629-630, 632 [same, noting distinction between malicious prosecution and malpractice suits].) Similarly, when a client or former client sues his or her own attorney or former attorney for failing to maintain the duty of loyalty, courts have concluded the attorney cannot invoke the anti-SLAPP statute. (See, e.g., Coretronic Corp. v. Cozen O'Connor (2011) 192 Cal.App.4th 1381, 1392-1393 [client's lawsuit challenging law firm's simultaneous representation of adversary in another proceeding not based on protected litigation-activity on behalf of the adversary, but rather, on a breach of the duty of loyalty owed to the client]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179 [former client's lawsuit challenging attorney's subsequent adverse representation not based on litigation-activity on behalf of adversary, but on agreeing to the adverse representation in the first place].)
This is not the analysis utilized by all courts. In Peregrine Funding, supra, 133 Cal.App.4th 658, for example, a different division of this court concluded some of the defendant lawyer's alleged actions on behalf of corporate officials who breached fiduciary duties owed to the plaintiff corporation and the corporation's investors were based on litigation-related conduct protected under the anti-SLAPP statute. (Id. at pp. 671-673 [failing to disclose conflict, not obtaining consent from all clients in a joint representation, and failing to return client documents were not litigation-related activity, but opposing SEC's efforts to appoint a receiver, stopping a deposition, selectively responding to discovery, and threatening and orchestrating bankruptcies of plaintiffs were "classic petitioning activity" on behalf of corporate officials].) The court further determined some of the plaintiffs met their burden of establishing a probability of prevailing on their breach of fiduciary duty claims. Accordingly, as to those plaintiffs, the lawyer's anti-SLAPP motion was properly denied. (Id. at p. 688.) Similarly, in Fremont Reorganizing, supra, 198 Cal.App.4th 1153, the court concluded allegations that the defendant lawyer breached fiduciary duties owed to a former client when he appeared before the Insurance Commissioner in an involuntary liquidation proceeding and informed the Commissioner of the former client's intent to auction off artwork purportedly belonging to the entity in liquidation, were based on litigation-related conduct protected under the anti-SLAPP statute. (Id. at pp. 1166-1167) The court also determined, however, that the plaintiff met its burden of establishing a probability of prevailing on its breach of fiduciary duty claim and therefore the anti-SLAPP motion was properly denied as to that cause of action. (Id. at p. 1176, 1178.) As we will explain, given the state of the record in this case we need not, and do not, resolve the analytical tension between these "breach of duty" cases and those cited above, or decide which analytical approach is most consistent with the anti-SLAPP statute.
On the other hand, a suit against an adversary's attorney, based on litigation conduct taken on the adversary's behalf, generally implicates protected conduct and is subject to a special motion to strike. (E.g., Cabral, supra, 177 Cal.App.4th at pp. 479-480, 482-483 [ex-wife's claims against ex-husband's attorney based on attorney's revision of will, submission of will to probate proceedings, and defense of other family members in court suits against ex-wife were all protected conduct and subject to anti-SLAPP motion]; Genethera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 [litigants' claim based on adversary's lawyer's sending settlement proposal to litigant was "in connection with" that litigation and was protected conduct]; Neville, supra, 160 Cal.App.4th at p. 1264-1265, 1267-1268 [claim of former employee and future litigation adversary based on employer's lawyer writing a letter telling a third party not to do business with the former employee arose from protected conduct "in connection with" the future litigation because the letter "bore some relation" to it, in accordance with the view that "court have adopted 'a fairly expansive view of what constitutes litigation-related activities' "].)
Given the dichotomy in the cases as to the applicability of the anti-SLAPP statute to lawsuits against lawyers, it is clear why Thomas alleged Camera represented the Stonehouse partnership and thus was Thomas's own lawyer. He thereby pleaded around the substantial body of cases holding litigation-based claims against an adversary's lawyer are subject to a special motion to strike.
In none of the cases just discussed (nor in any other case we have discovered) concerning the applicability of the anti-SLAPP statute to a lawsuit against a lawyer, was the defendant lawyer's representational status in question. Accordingly, these courts did not have to analyze the record as to who was being represented by whom, and when such representation occurred. In this case, however, Thomas claims Camera represented the Stonehouse partnership, while Camera claims he represented only Beverly. Therefore, we have the unusual case where we must consider the state of the record as to the defendant lawyer's representational status in order to complete our analysis of whether the plaintiff's claims against the lawyer are outside the purview of the anti-SLAPP statute or whether they are within the ambit of the statute and subject to a special motion to strike.
We note that if we took the analytical approach employed in Peregrine Funding and Fremont Reorganizing, we would disregard the dichotomy the cases have drawn between lawsuits against one's own and an adversary's lawyer, conclude Thomas's malpractice and breach of fiduciary claims against Camera are based on litigation-related activity (for the reasons we have discussed in analyzing the trial court's ruling), and proceed to the second prong of the analysis and determine whether Thomas has shown some probability of prevailing on his claims against Camera.
As we have recited, in ruling on an anti-SLAPP motion, courts are to consider "the pleadings and declarations or affidavits." (Brill, supra, 132 Cal.App.4th at p. 329, overruled on other grounds by Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 25; § 425.16, subd. (b)(2); see also Hylton, supra, 177 Cal.App.4th at pp. 1271-1172.) After reviewing the entire record, we conclude Thomas's bald assertion that Camera was the partnership's lawyer—and thus was his own lawyer—is not only untenable, but contrary to the position Thomas took and successfully advocated before the family law court in the dissolution action.
We are aware the merits of a cause of action are generally irrelevant to the first step of the anti-SLAPP analysis—determining whether the challenged cause of action is based on protected conduct. (See Freeman v. Schack (2007) 154 Cal.App.4th 719, 733; Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [affirmative defenses, such as the litigation privilege, are not relevant to the first prong inquiry].) This does not mean, however, that we cannot address Camera's representational status at this juncture in order to determine which body of attorney anti-SLAPP cases applies, irrespective of the fact Camera's representational statute is also one of several elements of Thomas's legal malpractice claims. (See, e.g., Rohde, supra, 154 Cal.App.4th at pp. 35, 38 [because court looked to the scope of the litigation privilege to determine that the defendant lawyer's conduct was protected activity under the anti-SLAPP statute, its determination under the first step of the analysis also answered the second step of the analysis].)
As we have discussed, Thomas's supporting evidence consisted of Camera's billing records, which Thomas obtained in discovery in the dissolution action, and the two handwritten notes by Basoco. Camera's billing records do not remotely suggest Camera ever represented both Beverly and the Stonehouse partnership, let alone at a time when the dissolution action had become extraordinarily rancorous. The two notes by Basoco, likewise, do not remotely suggest Camera was ever engaged to represent Stonehouse. Thomas presented no evidence of an agreement by a majority of the Stonehouse partners to retain Camera (or even that Thomas had purportedly engaged Camera on behalf of the partnership), no engagement letter, no engagement terms or fee schedule, and no bills, correspondence, or any other indicia of an attorney-client relationship with Camera.
Camera, in turn, submitted declarations by Beverly and O'Donnell, collectively representing 75 percent of the ownership of Stonehouse. Beverly affirmatively declared Camera represented her in connection with the divorce action and did not separately represent Stonehouse. O'Donnell also declared Camera did not represent him in connection with the partnership. In short, other than Thomas's self-serving, uncorroborated assertion that Camera represented the Stonehouse partnership, there is not a shred of evidence Camera was engaged by and represented anyone other than Beverly.
Given this state of the record, we conclude Thomas's conclusory and unsupported declaration is insufficient to bolster his attempt to plead around the line of anti-SLAPP cases applicable to lawsuits against an adversary's lawyer. (See Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 625 [uncorroborated, self serving declaration, especially consisting of hearsay and speculation, is not sufficient to meet a plaintiff's burden on an anti-SLAPP motion to show probable success]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 ["plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact on summary judgment; nor do uncorroborated and self-serving declarations"]; Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 728-729 [unilateral declaration not effective to show relationship and have counsel disqualified on basis of that relationship].)
In addition, the record shows that, in the dissolution action, Thomas took a contrary position as to Camera's representation. In fact, Thomas not only took the position Camera was Beverly's lawyer, he sought sanctions from the family law court for abusive litigation tactics Camera took on Beverly's behalf. The basis for Thomas's sanctions motion is telling. Thomas identified not only Camera's vulgar language and gestures, and the assault and battery at O'Donnell's deposition as reasons to impose sanctions, but he also based his sanctions request on Camera's improper communications with Thomas as a represented party and Camera's role in blocking the Stonehouse sale. Thus, in front of the family court, Thomas took the position he was not represented by Camera but was represented by another lawyer (and thus Camera engaged in improper communications with a represented party) and Camera's efforts to block the Stonehouse sale were taken in connection with his representation of Beverly in the dissolution action (and thus provided a basis for the family law court to award sanctions against Beverly and Camera in the dissolution action). Moreover, Thomas was successful on his motion and recovered $24,849 in sanctions.
In light of the position Thomas affirmatively and successfully advanced before the family law court in the dissolution action, his contrary assertion in this action that Camera represented the partnership and was thus his own lawyer—unsupported by any other evidence—cannot hold sway for purposes of determining whether the first prong of the anti-SLAPP statute has been met. Indeed, the doctrine of judicial estoppel precludes the kind of about-face Thomas has made, first pointing a finger at Camera as Beverly's out-of-control lawyer and obtaining sanctions for his transgressions in the family law court, but now seeking additional retribution for the same conduct in this action by purportedly embracing Camera as his own, malfeasing lawyer. (See People v. Castillo (2010) 49 Cal.4th 145, 155 [" ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary." ' [Citation.] The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' "].)
We may invoke judicial estoppel even though the doctrine was not raised in the trial court. (See The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 843-844 ["the Court of Appeal on its own relied on judicial estoppel in concluding the demurrer was properly sustained without leave to amend"]; People v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189 [invoking judicial estoppel for first time on appeal].)
We therefore conclude Camera has met his burden as the moving party and established his challenged conduct in connection with the Stonehouse property was litigation-related activity protected under the anti-SLAPP statute.
Given our conclusion that Camera's challenged conduct is litigation-related activity protected under the anti-SLAPP statute, we are not faced with "mixed" causes of action based on both protected and unprotected activity. (See, e.g., Peregrine Funding, supra, 133 Cal.App.4th at p. 672 [discussing mixed causes of action].) We therefore do not address questions such mixed causes of action spawn, such as whether the protected conduct is only "incidental" to the unprotected conduct and therefore disqualifies the cause of action from anti-SLAPP protection. (Ibid.)
Probability of Prevailing on the Merits
In light of the unique record in this case, our conclusion that Camera has met his burden of establishing that his challenged conduct comes within the scope of the anti-SLAPP statute under the line of cases applicable to lawsuits against an adversary's attorney, answers the second inquiry under the anti-SLAPP statute, as well—whether Thomas has demonstrated a "probability of prevailing" on his "malpractice" and "breach of fiduciary duty" claims against Camera.
When a trial court erroneously denies an anti-SLAPP motion after analyzing only the first step, an appellate court has the option of remanding the matter so the trial court can address the second step and assess the plaintiff's "probability of prevailing" in the first instance. (See, e.g., Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 267.) However, given the overlap of the questions here, and that the parties briefed the merits inquiry in the trial court and have done so on appeal, we address the second step for the sake of judicial economy. (See, e.g., Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 312.)
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To prevail on these claims, Thomas must show the existence of an attorney-client relationship between Camera and the partnership. (Skarbrevik v. Cohen (1991) 231 Cal.App.3d 692, 700; cf. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-821 [must show existence of duty for breach of fiduciary duty and professional negligence causes of action].) As discussed at length above, however, Thomas's only evidence of such a relationship is his self-serving, uncorroborated declaration. Under the "summary-judgment-like" test we apply to determine whether a plaintiff has presented "sufficient evidence to establish a prima facie case with respect to the claim[s]" at issue, thereby showing a probability of prevailing, (Taus v. Loftus (2007) 40 Cal.4th 683, 714), Thomas has manifestly not met his burden. (See Martin v. Inland Empire Utilities Agency, supra, 198 Cal.App.4th at p. 625; Koo v. Rubio's Restaurants, Inc., supra, 109 Cal.App.4th at p. 729.)
As we have also discussed above, Thomas cannot, in any case, parlay an about-face from the position he advocated before the family law court as to Camera's representation, into a showing he can prevail on the merits of his claims in this case. (See People v. Castillo, supra, 49 Cal.4th at p. 155; Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1459-1460 [affirming grant of summary judgment based on judicial estoppel in husband's action for partition of assets against former wife when husband took incompatible position in previous marital dissolution action].)
We therefore conclude Camera's special motion to strike should have been granted in its entirety. In reversing the trial court's order to the extent it denied Camera's motion, we do not condone the unprofessional behavior, threats, and violence the family court described when it sanctioned Camera, and we note the anti-SLAPP statute does not impact all of Thomas's causes of action. His causes of action for the assault, battery, and false imprisonment based on Camera's outrageous behavior during the O'Donnell deposition remain. But however boorishly Camera may have treated Thomas during the dissolution action, that does not give Thomas cart blanche to construct "malpractice" and "breach of fiduciary duty" claims against Beverly's lawyer.
III. DISPOSITION
The trial court's order on Camera's special motion to strike is reversed as to the fourth (negligence), fifth (breach of fiduciary duty), eleventh (negligent infliction of emotional distress), twelfth (intentional infliction of emotional distress), thirteenth (malpractice), and seventeenth (intentional interference with prospective economic relations) causes of action, with directions to grant the motion and strike these causes of action.
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Banke, J
We concur: ____________
Marchiano, P. J.
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Dondero, J.