Opinion
H036290
02-08-2012
JOANNA L. PFEISTER, Plaintiff and Appellant, v. PAUL B. MELTZER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. GNM104929)
Appellant Joanna L. Pfeister filed a complaint against her former attorney respondent Paul B. Meltzer in which she alleged breach of contract, common counts, fraud, and intentional infliction of emotional distress. Meltzer then filed a special motion to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion, and Pfeister appealed from this order. We find no error and affirm.
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
I. Background
This summary is based on the pleadings and the declarations of Pfeister, Meltzer, and his counsel.
In August 2007, the police went to Pfeister's residence to serve a search warrant and to investigate an incident in which she allegedly brandished a firearm (later determined to be a replica firearm) at a worker who had been hired to paint her apartment. The police arrested Pfeister and she was charged with making threats to commit a crime resulting in death (Pen. Code, § 422), exhibiting a deadly weapon with intent to resist arrest (Pen. Code, § 417.8), exhibiting an imitation firearm (Pen. Code, § 417.4), and resisting arrest (Pen. Code, § 148, subd. (a)(1)).
On September 17, 2007, Pfeister and Meltzer entered into a criminal defense fee agreement (contract). Pfeister paid Meltzer $25,000, which was "a non-refundable retainer," for attorney's services "up to the time of trial." The contract stated that Meltzer's fee "is earned on the day that it is received, and is not refundable, regardless of how or when the case ends." She also paid him a refundable $60,000 trial retainer. Meltzer then substituted in as attorney of record for Pfeister in place of the Monterey County Public Defender.
In December 2007, Pfeister sought Meltzer's assistance in filing a civil lawsuit against the City of Carmel and the County of Monterey for alleged violations of her civil rights in connection with her arrest in August 2007. Meltzer told her on multiple occasions that he would not assist her in any civil lawsuit.
After several prior warnings to Pfeister, Meltzer gave her written notice on March 17, 2009, that he intended to file a motion to withdraw as counsel. Meltzer summarized Pfeister's conduct: lying to him; misrepresenting his statements to third parties; threatening to sue him and his staff; refusing to follow his advice; screaming at him; directing him to present meritless and contradictory defenses; and making it "extremely difficult[,] if not impossible[,] for [him] to discharge [his] duties to [her] and the court." Meltzer advised her to hire another attorney immediately to represent her in the pending criminal case. The following day, Meltzer filed a motion to withdraw as attorney of record.
On March 23, 2009, Pfeister opposed the motion to withdraw. She argued: "[D]efense counsel has not performed all of the duties required of him by the specific terms of the Contract. Furthermore, he is now seeking to breach that contract at a time when his services are most critical to the defendant. If this Breach of Contract is allowed to occur, it will severely prejudice and ill reparably damage defendant." Pfeister asserted that the conflict arose because her motions to dismiss certain charges or to reduce them to misdemeanors had not been granted even though the district attorney and the police had violated her constitutional rights. Pfeister also claimed that Meltzer told her that the district attorney was pursuing the criminal case against her because she had filed a civil action against the City of Carmel, and thus she asserted that dismissal of the criminal case was justified under a retaliatory prosecution theory. Pfeister requested that Meltzer's "permissive withdrawal request . . . be denied on the grounds that, (1) There is nothing within the four corners of defense counsel's Contract with defendant . . . that permits him to do so; (2) Defendant has performed in full on the Contract; (3) It is simply a Breach of Contract veiled as a request for permissive withdrawal; . . . If granted, defendant would be severely prejudice and ill reparably damaged." To support her argument, Pfeister submitted her own declaration which contained the same general language as her argument.
In her response to the motion to withdraw, Pfeister also attached a letter that she had written to Meltzer on March 18, 2009. This letter stated that Meltzer sought to breach the contract by seeking to withdraw as counsel. She gave Meltzer two options: specific performance, which would include filing various motions, completing discovery, and preparing for trial; or rescission.
This letter is not dated. However, Pfeister's declaration stated that it was dated March 18, 2009. Meltzer's brief states that it was dated April 2, 2009. We will assume that Pfeister has provided the correct date.
Meltzer filed a reply to Pfeister's response. He noted that Pfeister had revealed privileged communications between Meltzer and herself, and thus waived the attorney-client privilege as to those communications. Meltzer also denied making the statement that supported her claim for retaliatory or vindictive prosecution. He concluded that since Pfeister's disclosure made him a witness to her retaliatory and vindictive prosecution claims, his withdrawal as counsel was mandatory under rule 3-700(B)(2) of the State Bar Rules of Professional Conduct.
All further references to rules are to the State Bar Rules of Professional Conduct.
On April 2, 2009, a hearing was held. Pfeister indicated that she would prefer that Meltzer continue to represent her, though she recognized that there had been a breakdown in attorney/client communication. When the court determined that Pfeister had waived her attorney-client privilege, it also found that the waiver applied to Meltzer's March 17, 2009 letter to her. During a recess at the hearing, Pfeister told Meltzer that she would sue him unless he agreed to withdraw his motion and stay on as counsel of record. The trial court granted Meltzer's motion to withdraw as attorney of record on mandatory grounds, finding that Pfeister had made him a witness which made Meltzer's withdrawal mandatory.
On April 7, 2009, Meltzer returned Pfeister's refundable retainer in the amount of $60,000. Following Pfeister's request, Meltzer forwarded her client file to her new counsel of record.
II. Present Case
On April 1, 2010, Pfeister, in pro per, filed a form complaint against Meltzer for damages for breach of contract, common counts, fraud, and intentional infliction of emotional distress. A copy of the contract was attached to the complaint. The first cause of action alleged that Meltzer failed to perform the contract on or about April 2, 2009, and that she suffered damages in the amount of "[c]osts to purchase the identical services that defendant, Meltzer, failed to provide pursuant to the aforementioned contract." The second cause of action for common counts alleged that Meltzer "became indebted to" her "for money had and received by defendant for the use and benefit of plaintiff," and "for money paid, laid out, and expended to or for defendant at defendant's special instance and request," and he failed to perform the contract. She sought prejudgment interest from April 3, 2009. The third cause of action for fraud alleged that Meltzer made representations of material fact in the contract, knowing that they were false. It also alleged that Meltzer concealed his intent to breach the contract and that he "made a promise to perform the services delineated in the contract without the intent to perform." There were no specific allegations regarding a cause of action for intentional infliction of emotional distress.
Meltzer filed an anti-SLAPP motion to strike the complaint pursuant to section 425.16. The motion was accompanied by a memorandum of points and authorities, a declaration by Meltzer, and a declaration of counsel. Meltzer argued that Pfeister's complaint arose from protected activity and she could not meet her burden to show a probability of success on the merits.
Pfeister filed opposition to the motion, which included a memorandum of points and authorities and her declaration. She argued that a special motion to strike did not apply to causes of action for breach of contract, fraud, and breach of fiduciary duty. She also argued that conduct deemed communicative under Civil Code section 47 did not automatically qualify as constitutionally protected under section 425.16, and Meltzer failed to show that his conduct qualified. She again noted that Meltzer breached his contract with her on or about April 2, 2007. According to Pfeister's declaration, Meltzer assured her that he would never consider any settlement offer and that he "would not abandon [her] at anytime during this litigation via, inter alia, a motion to withdraw as counsel." However, according to Pfeister, Meltzer subsequently demanded that she sign a settlement offer and threatened to move to withdraw if she did not do so. Pfeister also claimed that when the trial court granted Meltzer's motion to withdraw, it did not absolve him of his duties under the contract to provide services other than as appearing as attorney of record.
Meltzer filed a reply to Pfeister's opposition to his special motion to strike. He argued that Pfeister had failed to meet her burden, and pointed out that her opposition suggested that the only way for him to have avoided the present lawsuit was to continue representing her despite rule 3-700 and the court order finding his withdrawal mandatory.
Following a hearing, the trial court granted the motion to strike the complaint. Pfeister then brought a motion for reconsideration, which the trial court denied. Pfeister has filed a timely appeal.
III. Discussion
A. Anti-SLAPP Statute
In enacting section 425.16, the Legislature found that "[i]t is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process." (§ 425.16, subd. (a).) Section 425.16, subdivision (b)(1) states: "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 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." The Legislature has also mandated that section 425.16 "shall be construed broadly." (§ 425.16, subd. (a).)
The anti-SLAPP statute provides a means for the trial court to evaluate the merits of a possible SLAPP "using a summary-judgment-like procedure at an early stage of the litigation" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192), thereby providing a defendant with the opportunity to limit the costs of litigation. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196.) The trial court must apply a two-part test in ruling on a motion to strike under section 425.16. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one 'arising from' protected activity." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (Cotati), quoting § 425.16, subd. (b)(1).) "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 (Navellier).) "If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim." (Cotati, at p. 76.)
B. Standard of Review
This court reviews a trial court's granting a motion to strike under section 425.16 de novo. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) We employ the same standard as the trial court, that is, after the defendant has met his initial burden of showing that the challenged action arose from protected activity, we must determine "'whether the plaintiff . . . has shown a probability of prevailing on the merits.' " (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017.) This standard is " 'similar to that employed in determining nonsuit, directed verdict or summary judgment motions. . . . " '[T]he 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." ' . . . " [¶] As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. . . . The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. . . . In reviewing the plaintiff's evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. . . .' " (Ibid., citations omitted.) In order to avoid being stricken by a special motion to strike, a plaintiff need only show that his or her claim has "minimal merit." (Navellier, supra, 29 Cal.4th at p. 89.)
C. Protected Activity
Pfeister argues that her complaint was based on a variety of claims that did not involve protected activity, and thus Meltzer failed to meet his initial burden of establishing that the action arose from the exercise of his right of petition.
As relevant here, the statutory definition of protected activity includes "any written or oral statement or writing made before a . . . judicial proceeding . . . ." (§ 425.16, subd. (e)(1).) When a defendant's statements or writings fall within section 425.16, subdivision (e)(1), a defendant need not make a separate showing that the matter is " 'an issue of public interest.' " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-1117.) However, section 425.16 " 'does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with "an issue under consideration or review" in the proceeding.' [Citation.] In other words, 'it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.' [Citations.]" (Robles v. Chalipoyil (2010) 181 Cal.App.4th 566, 575 (Robles).) "The 'principal thrust or gravamen' test serves the legislative intent that section 425.16 be broadly interpreted," because a plaintiff cannot "deprive a defendant of anti-SLAPP protection by bringing a complaint based upon both protected and unprotected conduct." (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319.)
We reject Pfeister's argument that to the extent that the allegations in her complaint referred to Meltzer's motion to withdraw as counsel, they were "only incidental to a cause of action based essentially on nonprotected activity." (Robles, supra, 181 Cal.App.4th at p. 575.) Though Pfeister's complaint provided few details, it arose from Meltzer's exercise of his right of petition. The cause of action for breach of contract alleged that Meltzer breached the contract by "failing to perform" on or about April 2, 2009, which was the date on which the trial court granted his motion to withdraw as counsel. There were no other allegations of breaches of the contract by Meltzer. Thus, on its face, the complaint refers only to Meltzer's motion to withdraw as the alleged breach of contract. The cause of action for common counts alleged breach of contract for "[f]ailure to perform," and sought prejudgment interest from April 3, 2009, thus referencing the day after Meltzer withdrew as counsel. The fraud cause of action alleged that Meltzer made representations in the contract "as set forth in the attached contract," and that these representations were false because he did not intend to perform them. It also alleged that Meltzer "made a promise to perform the services delineated in the contract without the intent to perform." The attached contract referred to "attorney services . . . up to the time of trial." When read in conjunction with the previous allegations, Meltzer's motion to withdraw as counsel was also the basis for Pfeister's fraud claim. Even assuming that the fraud cause of action included allegations regarding unprotected activity, the principal thrust or gravamen of Pfeister's complaint was directed at Meltzer's written and oral statements in connection with his motion to withdraw as her counsel. Thus, Pfeister's claims arose under the anti- SLAPP statute because they were "made in connection with an issue under consideration or review by a . . . judicial body" within the meaning of section 425.16, subdivision (e)(2). Accordingly, Meltzer met his burden to show that Pfeister's complaint was one "arising from" protected activity.
The complaint included no allegations in connection with her intentional infliction of emotional distress cause of action.
However, Pfeister now seeks to characterize her complaint as alleging incompetent representation. She argues that her complaint encompassed allegations regarding Meltzer's "conduct or nonfeasance that took place prior to and separate from his motion to withdraw." She claims that "[t]hese breaches were not protected activity even though they involved Meltzer's conduct within the criminal case, because they did not arise from petitioning activity but from alleged failure to represent Pfeister competently and according to contract." These alleged breaches included: pressuring her to accept the plea agreement; failing or refusing to file various motions; failing to complete discovery; failing to file a motion to change venue; failing to timely recuse a judge; and breaching his assurance that no negotiated resolution would be accepted. First, Pfeister's complaint did not include these allegations. Second, to support her argument, she relies on the March 18, 2009 letter that was attached to her response to Meltzer's motion to withdraw as counsel. But Pfeister has overlooked portions of this letter as well as her response to Meltzer's motion to withdraw. The heading to Pfeister's March 18 letter stated: "Response to your desire to Breach your Contract with me . . . ." She began by asserting that she had complied with the contract, but that he "did not do so, and now [sought] to breach [his] contract, which is unacceptable." She then asserted that he had two options: specific performance, which included the performance of the previously-mentioned services; or rescission. Thus, Pfeister herself identified the alleged breach of contract as Meltzer's motion to withdraw as counsel. A few days later, she opposed his motion by submitting a declaration in which she stated that he was "now seeking to Breach that Contract with [her] at a time when his services [were] most critical" to her, and that if this "Breach of Contract [was] permitted to occur, it [would] severely prejudice and ill reparably damage" her. Thus, in both documents, Pfeister herself characterized Meltzer's motion to withdraw as counsel as the alleged breach of the contract. She never referred to any alleged incompetence by Meltzer as a breach of the contract. Accordingly, we reject Pfeister's claim that her complaint was based essentially on activity that was not constitutionally protected.
We also disagree with Pfeister's claim that Meltzer was not required by law to make the motion to withdraw. In her response to the motion to withdraw, Pfeister stated that Meltzer had told her that the criminal case was "being pursued as retaliation against her for filing a Civil action against the City of Carmel, and that the prosecutor was also retaliating against her for refusing to drop her Penal Code §955 motion before being heard, by not reducing the Penal Code §422 felony charge to a misdemeanor. This is therefore clearly 'Retaliatory (vindictive) Prosecution', which also justifies the immediate dismissal of this action, People v. Edwards (1991) 54 C3d 787, 828." Thus, Pfeister based her defense theory of retaliatory prosecution on Meltzer's statements, which would have required him to testify in her criminal case. Given that Meltzer denied making this statement, he would have been placed in the position of either testifying against his client or committing perjury. Under these circumstances, Meltzer's withdrawal from the case was mandatory. (Rule 3-700(B)(2).)
D. Probability of Prevailing on Claim
Pfeister next contends that the litigation privilege does not bar her claims against Meltzer. We disagree.
"The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged. This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' [Citation.] '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 [has] some connection or logical relation to the action.' [Citation.] . . . [¶] 'The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]' " (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) Thus, when the litigation privilege precludes the defendant's liability on a claim, a plaintiff cannot make a showing of prevailing on the merits of the claim. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)
Here, each of the causes of action in Pfeister's complaint was premised on the same allegedly wrongful conduct by Meltzer, that is, his filing and pursuing the motion to withdraw as counsel. His writing and statements in connection with this motion were communications made in a judicial proceeding in order to achieve an object of the litigation and were related to the action. (Civ. Code, § 47, subd. (b).) The litigation privilege is absolute, and it barred each of the claims in Pfeister's complaint. Accordingly, Pfeister did not establish a reasonable probability of prevailing on her claims.
E. Conclusion
Meltzer met his burden of establishing that the causes of action in Pfeister's complaint arose from his protected activity. Since Pfeister failed to meet her burden of stating and substantiating a legally sufficient claim, the trial court properly granted Meltzer's motion to strike the complaint pursuant to section 425.16.
III. Disposition
The order granting the special motion to strike is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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