Opinion
G045055
03-08-2012
FRED PARDES et al., Cross-complainants and Appellants, v. THE BOEING COMPANY, Cross-defendant and Respondent.
Law Offices of Fred S. Pardes, Fred S. Pardes; and Fred S. Pardes, in pro. per. for Cross-complainants and Appellants. Bryan Cave, Stuart W. Price, Sean D. Muntz and Trevor J. Allen for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00391248)
OPINION
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed.
Law Offices of Fred S. Pardes, Fred S. Pardes; and Fred S. Pardes, in pro. per. for Cross-complainants and Appellants.
Bryan Cave, Stuart W. Price, Sean D. Muntz and Trevor J. Allen for Cross-defendant and Respondent.
This lawsuit, a legal malpractice action, arose from two prior cases. As pertinent to this appeal, an attorney, Fred S. Pardes, cross-complained against a corporation, the Boeing Company (Boeing) which was subpoenaed to appear as a witness in the immediately antecedent case. Pardes alleged, among other things, that the corporation had breached an oral contract with him regarding its conduct as a witness in the prior case. Boeing filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court granted the motion, concluding that the anti-SLAPP statute applied and that Pardes could not establish a probability of success on the merits of the case. The court struck Pardes's cross-complaint and awarded Boeing attorney fees of $9,019.88. We conclude the trial court properly granted the anti-SLAPP motion, and therefore affirm. We further reject Pardes's argument that attorney fees were improperly awarded.
Unless otherwise indicated, subsequent statutory references are to the Code of Civil Procedure.
"SLAPP is an acronym for 'strategic lawsuits against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
I
FACTS
In or around 2006, Farahmarz Abolfathi divorced his wife, Faranak Eskandary. Following the divorce case, Pardes represented Abolfathi in a defamation action against Najila Brent, Eskandry's sister-in-law and an attorney who Abolfathi claimed "secretly advised [his] ex-wife" during the divorce proceeding. (Abolfathi v. Brent (Apr. 30, 2009) G039957 [nonpub. opn.].) Abolfathi alleged that Brent instigated an investigation of him by his employer, Boeing. He claimed that Brent contacted Boeing and told the company that Abolfathi was a security risk.
We previously affirmed the trial court's denial of Brent's anti-SLAPP motion in the defamation case.
During the trial in Abolfathi v. Brent, supra, G039957, the court granted a nonsuit in Brent's favor after Pardes unsuccessfully attempted to admit into evidence certain documents obtained from Boeing. Abolfathi subsequently filed a legal malpractice complaint against Pardes. Abolfathi alleged that a telephone call placed from Brent to Boeing was "of particular importance" in the defamation proceeding, and Pardes "failed to ensure that [Boeing] was either compelled to produce a person at trial who could testify as to the contents of the telephone call . . . and the identity of the caller or a proper custodian of records declaration that would allow the plaintiff to have documents pertaining to the telephone call admitted as a business records . . . exception to the hearsay rule." The malpractice complaint alleged that Pardes's failure to do so resulted in the nonsuit in Brent's favor.
Pardes then filed the instant cross-complaint against Boeing, alleging breach of contract, negligence, indemnity, equitable apportionment, and declaratory relief. Pardes alleged that he properly served Boeing with a subpoena duces tecum for trial, but stated that he was then contacted by Boeing's counsel, Sean Muntz. He claimed Muntz offered that if Pardes would forgo the necessity of a personal appearance by the custodian of records, Muntz "would prepare the appropriately admissible Business Records Declaration for the Boeing Custodian of Records." Pardes asserts that his acceptance of Muntz's offer constituted a legally binding contract. He alleged that Muntz's declaration, as prepared, was inadequate and inadmissible, and Muntz's subsequent failure to provide either a revised declaration or the custodian of records constituted a breach of contract as well as negligence. Thus, Pardes claimed he was entitled to "indemnity and/or equitable apportionment," and also sought declaratory relief.
Boeing filed the instant anti-SLAPP motion, arguing that its alleged actions fell within the scope of section 425.16. Specifically, Boeing claimed its conduct was within the scope of the right to petition, which includes actions in a judicial proceeding. (§ 425.16, subds. (b)(1), (e)(1).) Further, Boeing argued that Pardes could not establish a probability of success on the merits because Pardes was attempting to pass on to Boeing his liability for malpractice. Boeing also argued it was protected by Civil Code section 47, subdivision (b) (the litigation privilege), which substantively precluded Pardes's claim.
In opposition, Pardes argued, among other things, that Boeing had breached its duty to appear at trial and was using the anti-SLAPP procedure to harass him. He also argued that Boeing's acts did not fall within the ambit of the anti-SLAPP statute and that its conduct was not privileged.
The trial court granted Boeing's motion. First, the court found that Boeing's alleged actions in response to the trial subpoena were in furtherance of the right of free speech because Boeing was participating in official proceedings under court order. Second, with respect to success on the merits, the court concluded Boeing's actions were subject to the litigation privilege. "Pardes can't now bring suit in an attempt to hold Boeing liable for his non-delegable duties as a lawyer. Boeing had no other duty than to appear at the date and time on the subpoena and answer questions as asked." The court also overruled the evidentiary objections Pardes had filed in response to Muntz's initial declaration, which requested over $18,000 in attorney fees. The court granted the motion to strike and awarded Boeing attorney fees of $9,019.88. Pardes now appeals.
II
DISCUSSION
Although Pardes attempts to parse his appeal into no less than 12 separate issues, there are only two issues in this case. The first is whether the anti-SLAPP motion was properly granted, and the second issue is whether attorney fees were appropriately awarded to Boeing. We review each issue separately under well-settled law.
Contrary to Pardes's apparent belief, it is the trial court's responsibility to rule on the motion before it, not to separately address each argument and theory presented, no matter how meritless.
A. Jurisdiction and Standard of Review
An order granting a special motion to strike is subject to immediate appeal. (Code Civ. Proc., § 425.16, subd. (i).) We exercise independent judgment to determine whether the motion to strike should have been granted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
B. Section 425.16
A SLAPP suit is "a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved of on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In response to the threat such lawsuits posed to the important public policy of open and free participation in the democratic process, the Legislature adopted section 425.16: "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).) The purpose of the anti-SLAPP statute is to dismiss meritless lawsuits designed to chill the defendant's free speech rights at the earliest stage of the case. (See Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 815, fn. 2.) The statute is to be "construed broadly." (§ 425.16, subd. (a).)
The statute provides that an "'act in furtherance of a person's right of petition or free speech . . . 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, (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." (§ 425.16, subd. (e).)
When the defendant's alleged acts fall under the first two prongs of section 425.16, subdivision (e) (speech or petitioning before a legislative, executive, judicial, or other official proceeding, or statements made in connection with an issue under review or consideration by an official body), the defendant is not required to independently demonstrate that the matter is a "public issue" within the statute's meaning. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113 (Briggs).) If, however, the defendant's alleged acts fall under the third or fourth prongs of subdivision (e), there is an express "issue of public interest" limitation. (Id. at p. 1117.)
"Resolution of an anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's 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. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.)
C. Protected Activity
First we decide whether the challenged claims arise from acts in furtherance of the defendant's right of free speech or right of petition under one of the four categories set forth in section 425.16, subdivision (e). (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) In doing so, we "examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies . . . ." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520.)
"We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) We keep in mind that "[i]n the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citations.]" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) If the mention of protected activity is "only incidental to a cause of action based essentially on nonprotected activity," then the anti-SLAPP statute does not apply. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414.)
The issue here is whether Boeing's conduct as a third party witness, which Pardes admits constitutes the gravamen of his complaint against Boeing, is protected activity under the anti-SLAPP statute. Boeing argues that its acts fall within section 425.16, subdivision (e)(1), relating to "any written or oral statement or writing made before a legislative, executive, or judicial proceeding . . . ." We agree. As the California Supreme Court has held, the right to petition and "'petitioning activity involves lobbying the government, suing, [and] testifying.'" (Briggs, supra, 19 Cal.4th at p. 1115.) Pardes's attempts to distinguish his case as being about the conduct of a witness as opposed to the contents of a witness's testimony are unavailing, because the right to petition "broadly encompasses participation in official proceedings, generally . . . ." (Id. at p. 1118.)
Indeed, given that Pardes's claims not only relate to Boeing's appearance at the defamation trial, but the contents of its declaration, parsing Boeing's acts on such a basis would be impossible as a practical matter.
Pardes's argument that his case against Boeing is "a totally 'private dispute' as to conduct only" and not regarding any matter of public significance is unavailing. When conduct falls under subdivision (e)(1) or (e)(2) of the anti-SLAPP statute, it is irrelevant if that conduct relates to a public issue. (Briggs, supra, 19 Cal.4th at p. 1118.) The cases Pardes relies on are inapposite either because they relate to subdivisions (e)(3) or (e)(4), where a showing of public interest is required, or have no relation whether an action against a third party witness falls within the scope of subdivision (e)(1). (See, e.g., World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1567 [subdivision (e)(4)]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1625 [cause of action not related to protected activity]; Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108 [breach of settlement agreement not protected activity, even though entered into in connection with judicial proceeding]. Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1022 [probability of success on merits]; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 653 [subdivision (e)(4)].) By contrast, all of the conduct Pardes complains of here relates to Boeing's conduct as a witness in a court proceeding, and thus, the anti-SLAPP statute applies.
Pardes offers various other arguments, many of which strain credulity to the breaking point. Each of these arguments has been considered and rejected. He argues, for example, that his cross-complaint "seeks to address Mr. Muntz's legal malpractice in negligently preparing" the affidavit offered to the court. He fails to identify, however, any attorney-client relationship between either himself and Muntz, or his client and Muntz. Therefore, his claim that "legal malpractice actions are categorically outside the reach of the anti-SLAPP statues" is utterly without merit.
We also reject Pardes's argument that because his claims relate to a purported breach of sections 2064 and 1992, the anti-SLAPP statute does not apply. He claims that since sections 2064 and 1992 are "the controlling specific statutes in this case" they "supercede and trump [the anti-SLAPP statute] as a matter of public policy." Unfortunately, he points to no language in the anti-SLAPP statute that exempts these sections from its ambit, nor to any case reaching such a holding. Indeed, the statute is to be "construed broadly." (§ 425.16, subd. (a).) Further, because the anti-SLAPP statute may apply to conduct implicated under these statutes, it does not follow that they are meaningless, or that recovery is entirely precluded. It simply means that in order to defeat an anti-SLAPP motion, a probability of prevailing must be demonstrated. Having concluded that the anti-SLAPP statute does apply, we turn next to that issue.
Section 2064 relates to a subpoenaed witness's obligation to appear at trial; section 1992 states that failure to appear may result in a fine or damages to the aggrieved party.
D. Probability of Prevailing
1. Legal Standard
To establish the requisite probability of prevailing, the plaintiff must state and substantiate a legally sufficient claim. (Briggs, supra, 19 Cal.4th at p. 1123.) "Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Pardes must produce evidence that would be admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.
2. Evidence
We review in somewhat more detail the evidence produced below. As we noted ante, Pardes sought to admit evidence in the defamation action that it was Brent who had called Boeing anonymously. He therefore subpoenaed Boeing's custodian of records, and was contacted by Muntz, Boeing's attorney, who agreed to provide a business records declaration in lieu of a personal appearance by the custodian. At trial, he was unable to admit the documents into evidence. The next day, Timothy Cable, a Boeing security officer, testified pursuant to a different subpoena. Pardes examined him, but was once again unable to establish a foundation to admit the records, and after objection by Brent's counsel, they were not admitted.
The following day, Pardes moved to compel Boeing to produce a custodian of records for testimony, or to provide another declaration that would enable him to introduce the records. Brent and Boeing both opposed. The trial court denied the motion, finding that Boeing had substantially complied with its statutory obligations as a witness. The court stated: "It's not the witness' responsibility to make sure that the affidavit is correct. It's the party's responsibility who is subpoenaing those documents. [¶] . . . [¶] The affidavit that was supplied was inadequate. Mr. Cable may have been able to lay the foundation, but I don't think you asked the correct questions of him to achieve that. [¶] So I think that third party Boeing has been in substantial compliance. They provided both an affidavit that may be if you had taken a look at it when it first came in and seeing the deficiencies, you may have corrected it and you might have been able to supply a witness that I think might have been able to supply the testimony that you wanted, but you didn't." The court also pointed out that it had recessed early one day at Pardes's request, and that another day had been a court holiday, providing ample time for Pardes to attempt to find a solution.
The failure to introduce the records, Pardes alleged, led to the nonsuit in the defamation case and the subsequent malpractice case against him, in which he filed the instant cross-complaint against Boeing. Pardes alleged claims for breach of contract, negligence, "indemnity and/or equitable apportionment" and declaratory relief.
3. Litigation Privilege
Boeing argues that its acts as a witness are privileged pursuant to Civil Code section 47, subdivision (b) (the litigation privilege). As pertinent here, that section provides: "A privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial proceeding . . . ." The "principal purpose of section 47[(b)] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 213.)
"Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation . . . . [Citations.]" (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
We agree with Boeing that the privilege applies here. The cross-complaint relates entirely to Boeing's actions as a witness — both the affidavit it provided, and the testimony given by one of its employees. (Contrary to Pardes's claims otherwise, sections 2064 and 1992 do not apply here, as Boeing clearly met its obligations to appear as required to by the subpoena.) Pardes's entire case rests on the idea that the substance of Boeing's testimony was insufficient for his purposes. Such allegations directly implicate the litigation privilege.
The litigation privilege primarily precludes tort claims. "[W]hether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege. [Citations.]" (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492.) "[T]he purpose of the litigation privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation. [Citation.]" (Ibid.) Boeing appeared in court, yet Pardes did not use that appearance in a manner that furthered his client's case, or recognize any problems with the affidavit Boeing provided. He now seeks to avoid his liability for legal malpractice on the weakest of facts. This case is exactly the type of "unending litigation" the privilege was designed to avoid, and we therefore conclude it applies to Pardes's breach of contract claim as well as his equitable ones.
Further, Pardes's assertion that the privilege applies only to litigants is completely mistaken. "The judicial privilege 'is accorded not only to parties but to witnesses, even where their testimony is allegedly perjured and malicious.' [Citation.]" (Obos v. Scripps Psychological Associates, Inc. (1997) 59 Cal.App.4th 103, 108.)
4. Pardes's Claims Without the Litigation Privilege
Even if we concluded the litigation privilege did not apply, we would find that Pardes has failed to establish he is likely to prevail on any of his claims against Boeing. We start with his claim for breach of contract, which, by its nature, requires a "legally binding agreement[]" between the parties. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) Here, Pardes alleges that Muntz offered that if Pardes would forgo the necessity of a personal appearance by the custodian of records, Muntz "would prepare the appropriately admissible Business Records Declaration for the Boeing Custodian of Records." (Italics added.) This, Pardes claims, created a binding contract, and he points to an e-mail from Muntz as "the proverbial 'smoking gun' against Boeing" as evidence of such a contract. The e-mail, however, states only that Muntz would provide a declaration to Pardes about the records. It did not take on any obligation to ensure that the declaration would be admissible. We therefore find that Pardes's breach of contract claim is without merit.
With regard to the negligence cause of action, Pardes's arguments are again misplaced. Pardes simply cannot point to any cognizable duty of care on the part of a third party witness to a litigant. A witness's duty is to the court, not to the party issuing a subpoena, and Boeing, as determined by the trial court, satisfied that duty by appearing. Pardes's duty, as the lawyer, was one of "undivided loyalty" to his client. (Mason v. Levy & Van Bourg (1978) 77 Cal.App.3d 60, 66.) He provides no authority for the proposition that he can delegate that duty to a third party witness, and thus, he has no claim for negligence.
Pardes also asserts a clause of action for "indemnity or equitable apportionment" which we interpret as a claim for equitable indemnity. Such a claim, however, is not recognizable in the absence of a joint legal obligation to the injured party. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160-61.) There is no admissible evidence of such an obligation, and therefore, this claim must also fail.
Finally, because Pardes fails to identify any separate controversy that is not covered by his previous claims, his declaratory relief action is also without merit. (See California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623). Therefore, because Pardes could not demonstrate a likelihood of prevailing (even absent the litigation privilege), we conclude the trial court properly granted Boeing's anti-SLAPP motion.
E. Attorney Fees
In a two-paragraph argument supported by neither citations to the record nor authority, Pardes asserts the court committed error by granting Boeing's request for attorney fees. He first claims "there is no admissible evidence before the Court as to the amount of attorney fees incurred by Boeing." To the contrary, Muntz's declaration supports the amount of fees incurred, and Pardes's objection to that declaration was overruled by the trial court. The court reduced the amount of fees Boeing requested from approximately $36,000 to $9,019.88, which demonstrates the award of fees was anything but a rubber stamp of Boeing's request.
Pardes's list of the trial court's errors at the beginning of his opening brief also states the court wrongfully admitted Muntz's initial declaration on the issue of fees, asserting the lack of adequate capacity and hearsay. As he offers no further development of this portion of his argument, it is waived. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)
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Pardes also asserts the "claimed hourly rate by Boeing is not normally charged within Orange County for this kind of work," and that Muntz's declaration is "grossly defective, lacks foundation and capacity, fails to provide itemized billings, and does not adequately support any type of claim for any attorney fees." As Pardes offers nothing more than bare assertions, unsupported by any legal argument, he has failed to demonstrate error. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) Alternatively, this argument is deemed waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
III
DISPOSITION
The judgment is affirmed. Boeing is entitled to its costs on appeal.
MOORE, J. WE CONCUR:
O'LEARY, P. J.
FYBEL, J.