Opinion
D041268.
11-25-2003
CHARLES P. LEBEAU, Plaintiff and Appellant, v. PIERRE VAUGHN, Defendant and Respondent.
Charles LeBeau appeals from a judgment against him after the sustaining of a demurrer to his complaint filed against attorney Pierre Vaughn. Vaughn represented Patricia Mitchell in a lawsuit against LeBeau, which resulted in a judgment against LeBeau. In the instant matter, LeBeau filed a lawsuit against Vaughn based on Vaughns communications during the Mitchell lawsuit. The litigation privilege bars LeBeaus complaint. Accordingly, the demurrer was properly sustained. We affirm the judgment.
BACKGROUND
The Mitchell Lawsuit Against LeBeau
Attorney Vaughn represented Mitchell in a lawsuit against attorney LeBeau (the Mitchell lawsuit). The lawsuit included allegations of fraud and professional negligence arising from LeBeaus conduct during his representation of Mitchell in a variety of matters, including representation of a conservatorship set up for Mitchells aunt (the Dibblee Conservatorship). In May 2000, Mitchell obtained a judgment against LeBeau.
The courts judgment against LeBeau in the Mitchell lawsuit was based on findings that LeBeau had engaged in fraudulent conduct and breached his fiduciary duty by borrowing substantial amounts of money from Mitchell and the conservatorship estate without fully repaying them. In addition to obtaining loans from Mitchell personally, LeBeau also influenced Mitchell to divert assets of the conservatorship estate to himself and into a risky investment as to which he had a conflict of interest. The court noted that LeBeau, an attorney experienced in business and probate law, knew the transactions would never have been approved by the probate court. Further, the court recognized that although Mitchell (who had a degree in business and some experience in real estate) participated with LeBeau in the improper diversion of monies from the conservatorship, she did not have the same level of experience and training as LeBeau and she relied on LeBeaus expertise.
The Lawsuit Against Vaughn
In March 2002, LeBeau filed the instant complaint against Vaughn, alleging that Vaughns conduct and statements to the court in the Mitchell lawsuit constituted fraud, negligent misrepresentation, abuse of process, and intentional and negligent infliction of emotional distress. In essence, LeBeaus complaint contends that during the Mitchell lawsuit, Vaughn knew that it was Mitchell, not LeBeau, who wrongfully took assets from the Dibblee Conservatorship.
The complaint delineates LeBeaus representation of Mitchell, and alleges that after LeBeau became ill, Mitchell terminated LeBeaus representation and eventually hired Vaughn. Vaughn thereafter sued LeBeau on behalf of Mitchell (as an individual and as conservator of the Dibblee estate), resulting in the May 2000 judgment against LeBeau.
LeBeau alleges that in November 2001, he discovered that Vaughn had filed a probate court petition against Mitchell because she had not paid attorney fees due Vaughn. In the petition Vaughn also sought Mitchells removal as conservator of the Dibblee estate. According to LeBeaus allegations, Vaughns probate action accused Mitchell of wrongfully taking assets from the Dibblee Conservatorship and of refusing to provide information necessary to finalize the conservatorship accounting.
LeBeau alleges that during the time Vaughn represented Mitchell in her action against LeBeau, Vaughn knew, or should have known, that Mitchell had wrongfully taken funds from the conservatorship and was not cooperating with the accounting. LeBeau claims Vaughn failed to inform the court about these problems with Mitchell but
waited to do so until he filed his own action against Mitchell in November 2001. Further, Vaughn allegedly knew, or should have known, that Mitchells accusations against LeBeau, including accusations that he had taken assets from the Dibblee Conservatorship, were false.
LeBeau also alleges that Vaughn made "private deals" with other individuals, including an attorney representing a doctor who was being sued by Vaughn for malpractice, to share confidential information to assist themselves and their clients in violation of a court order made in the malpractice action.
Vaughn filed a demurrer to the complaint, asserting the complaint was barred by the litigation privilege and the statute of limitations. The trial court sustained the demurrer without leave to amend and entered judgment against LeBeau.
DISCUSSION
A demurrer is proper if a complaint fails to allege facts that state a cause of action under any legal theory. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal we review the complaint de novo. (Ibid.) We accept the factual allegations of the complaint as true and consider matters that may be judicially noticed. (Ibid.)
Under the litigation privilege set forth in Civil Code section 47, subdivision (b), communications made in relation to judicial proceedings are "absolutely immune from tort liability," with the sole exception of suits for malicious prosecution. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194.) Thus, the courts have held a communication made during a judicial proceeding may not be used to support a cause of action for torts such as abuse of process, invasion of privacy, intentional infliction of emotional distress, negligence, negligent misrepresentation, fraud, and interference with contract. (Id. at p. 1194, fn. 3.) The principal purpose of the litigation privilege is to ensure the utmost freedom of access to the courts without fear of harassment from subsequent derivative tort actions. (Id . at p. 1194.)
The litigation privilege applies even if the plaintiff alleges the defendant lied or concealed information during the course of the prior judicial proceedings. (See, e.g., Silberg v. Anderson (1990) 50 Cal.3d 205, 210, 219-220 [wifes attorney made misrepresentations and failed to disclose information to husbands attorney]; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 643 [presentation of forged will to probate court].) The courts recognize that although the broad application of the litigation privilege may result in uncompensated injuries, this is the price that must be paid to further the purposes of the privilege and to prevent "an unending roundelay of litigation." (Silberg v. Anderson, supra , 50 Cal.3d at pp. 213, 214, 218; Steiner v. Eikerling, supra, 181 Cal.App.3d at pp. 642-643.)
One of the purposes of the litigation privilege is to encourage attorneys to zealously protect their clients interests without having to be concerned about subsequent derivative actions brought against them. (Silberg v. Anderson, supra, 50 Cal.3d at p. 214.) This is precisely the situation here. Vaughn was Mitchells attorney in her lawsuit against LeBeau. LeBeau is now seeking to sue Vaughn for his alleged misrepresentations during that lawsuit. The litigation privilege bars all tort causes of action (except malicious prosecution, discussed below) against Vaughn based on his communications during the Mitchell lawsuit.
LeBeau argues that his complaint alleges extrinsic fraud and therefore should not be barred by the litigation privilege. Extrinsic fraud is recognized as a proper ground for a collateral attack on a judgment that has been obtained under circumstances where the aggrieved party was deliberately kept in ignorance of the action or in some other way prevented from presenting a claim or defense. (Moore v. Conliffe (1994) 7 Cal.4th 634, 643, fn. 5; see also Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 833-834.) The instant action is not a collateral attack to set aside the Mitchell judgment but rather an independent tort suit seeking damages from Vaughn. In any event, LeBeaus allegations raise intrinsic, not extrinsic, fraud. The courts have long characterized false statements made in connection with judicial proceedings as constituting intrinsic fraud that must be challenged at trial and cannot later be used to attack a final judgment. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 633-634; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26-27.) Vaughns alleged misrepresentations regarding LeBeaus culpability did not prevent LeBeau from raising his defenses during the Mitchell lawsuit and thus did not constitute extrinsic fraud. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 41.)
LeBeau cites Kimes v. Stone (9th Cir. 1996) 84 F.3d 1121, to support his argument that the litigation privilege does not apply to his case because of extrinsic fraud allegations. Based on a supremacy clause analysis, the court in Kimes held the litigation privilege did not bar a civil rights claim under federal law. (Id. at pp. 1126-1127.) In dicta, Kimes posited that, apart from its supremacy clause analysis, the claim might not be barred because of allegations of extrinsic fraud arising from an attorneys conduct adverse to his own clients interest. (Id. at p. 1127, fn. 3.) Here, the alleged misconduct arose from the communications of opposing counsel, and there is no such extrinsic fraud.
Finally, to the extent LeBeaus factual allegations can be construed as stating a claim for malicious prosecution, a necessary element of the tort is favorable termination of the prior action. (Ray v. First Federal Bank (1998) 61 Cal.App.4th 315, 318.) Because the Mitchell lawsuit was not terminated in LeBeaus favor, this legal theory is not available to LeBeau.
As to the allegation that Vaughn made "private deals" to share confidential information in violation of a court order in a malpractice action, LeBeau does not explain how this allegation supports a theory of tort liability. When a demurrer is sustained without leave to amend, we evaluate whether the plaintiff has carried his or her burden to show a reasonable possibility that any defects can be cured by an amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) LeBeau has not asserted any additional allegations that could be added to support a theory of liability. Accordingly, this allegation cannot withstand the demurrer.
Given our holding, we need not address the statute of limitations defense raised by Vaughn.
Vaughn requests attorney fees for a frivolous appeal. Although grounds exist to grant this request (see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650), we are persuaded that the better course of action is to deny the request and bring this dispute to an end. We nevertheless admonish LeBeau that in the future he should carefully consider applicable legal principles before making the decision to file an appeal.
DISPOSITION
The judgment is affirmed. Costs to Vaughn on appeal.
WE CONCUR: McDONALD, J. and OROURKE, J. --------------- Notes: LeBeau also sued Mitchell in the same action. Mitchell is not a party to this appeal.