Opinion
B189002
5-14-2007
WILLIAM PENUELA, an Incompetent Person, etc., Plaintiff and Respondent, v. RUSHFELDT, SHELLEY & DRAKE LLP et al., Defendants and Appellants.
Rushfeldt, Shelley & Drake, Kathryn S. M. Mosely, Robert C. Powers and Vanna T. Kitsinian for Defendants and Appellants. Law Firm of Roy Penuela, Roy Penuela and Timothy Suing for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This is an appeal from the denial of a special motion to strike under Code of Civil Procedure section 425.16. We reverse the order.
FACTUAL AND PROCEDURAL SUMMARY
We draw these facts in large part from the first amended complaint in Los Angeles Superior Court No. BC204116, the operative pleading.
This case is one of several resulting from an incident in February 1991, when William Penuela (William) was arrested by a City of Glendale police officer during a psychotic episode. He received no treatment for his mental illness during the two weeks he was in custody in Glendale and Los Angeles. Criminal charges were dismissed for lack of probable cause, and William was released from jail in the middle of the night, while delusional and hallucinating. Just three hours later, he walked in front of an Amtrak train and was struck by it. He suffered serious injury, including amputation of his right lower leg, brain damage, and worsened schizophrenia.
In April 1991, William was declared gravely disabled and placed in a mental health conservatorship (ZE001667; the conservatorship case). His brother, Roy Penuela (Roy) was appointed conservator of the person.
In February 1992, William filed a lawsuit against Los Angeles County, the City of Glendale, Amtrak, and others (BC048487; the County case). Roy was Williams attorney.
In August 1994, Roy negotiated a tentative settlement with Los Angeles County, conditioned on ratification by the County Claims Board and the Board of Supervisors. In anticipation of trial against the non-County defendants, Roy associated Kenneth Sigelman as cocounsel in late August 1994. Sigelman had a written fee-sharing agreement with Roy, but no contract with William. In December 1995, Roy disassociated Sigelman. Sigelman filed a notice of lien against Williams recovery in the County case.
Although the tentative settlement with Los Angeles County was not then approved, William eventually settled with the County, in June 1996. Concerned about Sigelmans lien, the court insisted that $100,000 of the $2.5 million settlement be set aside in an interest-bearing account in the names of Roy and Sigelman. In November 1996, Sigelman filed suit against William and Roy, seeking a division of the attorney fees payable as a result of the settlement with Los Angeles County (BC160242; the Sigelman action). In December 1996 and January 1997, William settled with the health care providers and the City of Glendale. Sigelman also claimed a portion of these settlements. Sigelmans action was stayed while William went to trial against the remaining defendants.
In early 1998, William and Roy filed cross-complaints against Sigelman and his law firm in the Sigelman action, alleging attorney malpractice, breach of fiduciary duty, negligence, fraud, negligent misrepresentation, interference with economic advantage, rescission, reformation, breach of contract, breach of the covenant of good faith and fair dealing, and as to William, conversion and abuse of a dependent adult. Sigelman was initially represented by his own office on the cross-complaint, but he later substituted George McDonald & Associates, with John M. Anderson of that firm as his primary attorney. In May 1999, the court stayed the litigation between Sigelman and the Penuelas.
On October 12, 1999, Sigelman, through attorney Anderson, filed a petition in the conservatorship case, seeking permission to view or obtain copies of a portion of the conservatorship file. According to the petition, Sigelman needed to review contracts approved by the court for William and petitions or orders appointing and paying Williams conservators in order to determine the validity of Roys allegations of entitlement to attorney fees and costs on behalf of himself and William while denying them to Sigelman. Petitioner expressly stated he was not seeking any medical, psychiatric or other medical information contained in Williams file. The petition was granted.
Anderson joined the law firm of Carroll, Kelly, Trotter, Franzen & McKenna (Carroll, Kelly), and that firm became counsel for Sigelman. Carroll, Kelly was later disqualified, and on June 16, 2000, Rushfeldt, Shelley & Drake LLP (Rushfeldt) substituted in as new counsel for Sigelman on the cross-complaint.
After the stay in the Sigelman action was lifted in May 2005, the Penuelas learned that Rushfeldt had possession of Williams conservatorship file, and sought its return. Rushfeldt refused to return it. The Penuelas filed a motion to disqualify Rushfeldt as counsel in the Sigelman action, and sought an order that Rushfeldt account for and surrender the confidential and privileged records. The Penuelas asserted they had not received notice of the petition to obtain the conservatorship file, and thus had no opportunity to oppose the motion, and that Sigelmans counsel improperly obtained the file while the Sigelman action was stayed. They argued Rushfeldt should be disqualified for receiving and retaining Williams confidential mental health information. The court denied the motion.
The order denying the Penuelas motion to disqualify counsel was recently affirmed by Division 7 of this district in case No. B185817.
Based on the release of his conservatorship file, William filed a first amended complaint in the malicious prosecution and abuse of process action he previously had filed against Sigelman and his law firm (BC204116). In the first amended complaint, William added as defendants Rushfeldt and two of its attorneys, Kathryn S. M. Mosely and Robert C. Powers (collectively Rushfeldt). He alleged that the defendants wrongfully obtained his confidential mental health records and invaded his privacy by doing so. He sought an injunction compelling defendants to return his mental health records and prohibiting defendants from releasing the confidential information to anyone. He also sought a declaration that the order from the conservatorship case permitting release of the records is null and void. This is the charging pleading before this court.
Rushfeldt filed a special motion to strike the first amended complaint in this action pursuant to Californias anti-SLAPP statute (Code Civ. Proc., § 425.16 (section 425.16)). Rushfeldt asserted its alleged acts were done in furtherance of its right to petition on behalf of its client in the Sigelman action, and that William could not show a probability of success on the merits because the acts were protected by the litigation privilege. The trial court found Rushfeldt had not met its burden of showing that the provisions of section 425.16 applied, and denied the motion. Rushfeldt appeals.
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
DISCUSSION
I
"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." (§ 425.16, subd. (b)(1).) As used in section 425.16, an "act in furtherance of a persons right of petition or free speech" 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; (4) or 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).)
"In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) "If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim." (Ibid.) We review the trial courts ruling on a special motion to strike de novo. (Id. at p. 1055.)
Rushfeldt argues that the alleged conduct underlying the causes of action in Williams first amended complaint arose from acts taken in furtherance of its efforts to defend the claims against Sigelman in the Sigelman action. A cause of action arising from a defendants litigation activity may appropriately be the subject of an anti-SLAPP motion. (Rusheen, supra, 37 Cal.4th at p. 1056.) In analyzing this question, we grant appellants request for judicial notice of the petition and order filed in the conservatorship case by Sigelmans predecessor counsel, seeking to obtain portions of the conservatorship file.
Williams first amended complaint alleges that defendants, "without a valid court order issued by a judge of the Los Angeles Superior Court, obtained BILL PENUELAS protected mental health department records. The plaintiff is informed and believes and thereon alleges that the defendants, at various dates and places, willfully and knowingly, or, negligently disclosed confidential information or records from the mental health departments of the Los Angeles Superior Court pertaining to BILL PENUELA to each other and to other persons unknown to plaintiff."
While the allegation is directed at all defendants, at oral argument in this court, respondent acknowledged that appellants were not involved in and hence not responsible for any alleged impropriety in obtaining the file from the conservatorship court.
The court order which William refers to as invalid was obtained in the conservatorship case upon petition by Sigelmans predecessor counsel. That petition sought permission to view or copy "a portion of the court file . . . ." According to the petition, "in order to determine the validity of Roys allegations of entitlement to attorneys fees and costs on behalf of himself and his brother Bill while denying them to Petitioner, Petitioner needs to review any and all contracts approved by the Court or not between William Penuela, Roy Penuela, Antonia Govea, Slater, Slater & Kiesel, William Penuela Sr., Stein, Hanger, Levine & Young, Thomas M. Regele, Minturn Wright, Kenneth Sigelman, Lorraine M. Turturo, and Marlene Penuela, Esq.; any petitions or orders appointing or reappointing and/or paying the conservator of the individuals, the conservator of the estate, guardians ad litem and attorneys including the aforementioned individuals; any petitions and orders disbursing the settlement funds from the Penuela v. County of Los Angeles case; any [and] all accountings and reports prepared and filed on behalf of the conservator, guardian ad litem or attorney requesting and obtaining approval of the disbursement of funds or objecting thereto; any petition and order for compensation for legal or other services; any petition and order for instruction or confirmation of the acts of the conservator of the person, conservator of the estate, or guardian ad [l]item; any petition and order to sell, transfer, hypothecate property whether real or personal; and any and all documents referring to or related to the settlements (non-medical) of the Penuela v. County of Los Angeles case and #BC048487 between plaintiff and each settling defendant."
The petition emphasized that "Petitioner is not seeking any medical, psychiatric or other medical information that may be contained in William Penuelas file." Petitioner requested that the trial court perform an in camera inspection of the file and then "permit Petitioner to review and copy the portion of the file described" in the petition.
The order granting the petition was on the last page of the petition, and stated only: "Good cause appearing, the petition is [granted]."
What Sigelman sought, and what the court ordered, was access to the portions of Williams conservatorship file related to court approval of contracts with and payments to attorneys, orders confirming actions by Williams conservators or guardian ad litem, and other orders relating to settlement of Williams case against the County and the disposition of Williams property. This information was sought in order to ascertain who had authority to enter into agreements on behalf to the conservatee, and what agreements or payments had been approved by the conservatorship court. This information was necessary for Sigelmans counsel to defend against the Penuelas cross-complaint in the Sigelman action, which asserted claims including interference with economic advantage, rescission, reformation, and breach of contract. Sigelman expressly did not seek, and thus the court did not by its order release, "any medical, psychiatric or other medical information" contained in Williams file.
Notably, William has not alleged that Sigelman obtained anything more than what was described in the conservatorship court order. He asserts that the confidential conservatorship file was improperly obtained in the first instance because he did not receive proper notice of the petition for its release, and because the order was issued by a commissioner, not a judge. He does not attribute this conduct to appellants. (See fn. 3, supra.) As to appellants, he asserts they improperly retained the file and disseminated it to others. None of these claims affects the threshold question for application of section 425.16: Whether the causes of action are based on acts taken in connection with an issue under review by a judicial body. Given that the petition sought access only to the portions of the file containing information related to Sigelmans defense of the cross-complaint in the Sigelman action, we conclude that the alleged conduct—the obtaining, retaining, and disseminating of the conservatorship file—was undertaken by Sigelmans counsel in connection with an issue in a judicial proceeding. The alleged conduct is protected activity within the meaning of the anti-SLAPP statute.
II
That brings us to the second question, whether William can demonstrate a probability of prevailing on the claim. Appellants assert, and we agree, that the litigation privilege bars William from prevailing on his claim.
The litigation privilege, codified in Civil Code section 47 (section 47), provides that communication made in a judicial proceeding is privileged. (§ 47, subd. (b).) The privilege protects against all tort causes of action except for malicious prosecution, including claims of invasion of privacy and violation of the constitutional right to privacy. (Jacob B. v. County of Shasta (Apr. 5, 2007, S142496) ___ Cal.4th ___.)
Since the malicious prosecution cause of action in the first amended complaint in this case is not asserted against the Rushfeldt defendants, this limitation on the litigation privilege is inapplicable.
The privilege "`applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [¶] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.] (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg).) Thus, `communications with "some relation" to judicial proceedings are `absolutely immune from tort liability by the litigation privilege (Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [17 Cal.Rptr.2d 828, 847 P.2d 1044] (Rubin)). It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law [9th ed. 1988] Torts, §§ 470, 505, pp. 554, 591.)" (Rusheen, supra, 37 Cal.4th 1048, 1057.)
The privilege has been applied to pleadings and process in a case, and to claims alleging the filing of false or perjurious testimony or declarations. (Rusheen, supra, 37 Cal.4th at p. 1058.) It has been applied to presentation of a forged will in a judicial proceeding, and to the preparation and submission of a false or forged building permit to the city council. (Ibid.)
Even if we were to assume for the sake of argument that the order releasing the conservatorship file was void or voidable, the litigation privilege would still apply. The alleged wrongful acts are that predecessor counsel filed a petition seeking release of the conservatorship file without proper notice, and that appellants obtained the conservatorship file from predecessor counsel, refused to return the file, and disclosed the contents of the file to others. Penuela did not allege, nor did he present evidence, that any of these alleged acts were unrelated to the preparation of Sigelmans defense to the cross-complaint in the Sigelman action. We conclude that the gravamen of the first amended complaint against Rushfeldt is communicative conduct undertaken in connection with the defense of the Sigelman action. The litigation privilege applies, and precludes liability for that conduct. William cannot demonstrate the probability of prevailing on the claim. The trial court erred in denying Rushfeldts anti-SLAPP motion.
III
Rushfeldt claims it is entitled to an award of attorney fees and costs as the prevailing party on an anti-SLAPP motion. Subdivision (c) of section 425.16 provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs." In this case, the prevailing defendants are the Rushfeldt firm and two of its attorneys. The Rushfeldt firm and these two attorneys represented themselves in bringing the special motion to strike. They incurred no attorney fees, and thus are not entitled to an award of attorney fees as prevailing defendants. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-1211.) They are, however, entitled to recover their costs.
DISPOSITION
The order denying the special motion to strike is reversed and the court is directed to enter a new order granting the motion. The cause is remanded for a determination and award of costs incurred by appellants in bringing the special motion to strike. Appellants are to have their costs on appeal.
We concur:
MANELLA, J.
SUZUKAWA, J.