Opinion
B228256
02-15-2012
ADAM MICHAEL SACKS, Plaintiff and Appellant, v. RON PIETRO, Defendant and Respondent.
Law Offices of Kaivan Harouni and Kaivan Harouni for Plaintiff and Appellant. Law Office of Stephen A. Madoni and Stephen A. Madoni for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC436579
APPEAL from an order of the Superior Court of Los Angeles County, Kenneth R. Freeman, Judge. Affirmed.
Law Offices of Kaivan Harouni and Kaivan Harouni for Plaintiff and Appellant.
Law Office of Stephen A. Madoni and Stephen A. Madoni for Defendant and Respondent.
INTRODUCTION
Plaintiff Adam Michael Sacks appeals from an order granting defendant Ron Pietro's special motion, pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16),to strike Sacks's complaint. Pietro made a threshold showing that the causes of action in Sacks's complaint arose from Pietro's protected free speech or petitioning activity, the filing of underlying complaints against Sacks in Los Angeles County Superior Court and in the State Bar of California. Pietro's showing shifted the burden to Sacks to establish that there was a probability of prevailing, but Sacks's opposition to Pietro's anti-SLAPP motion made no showing of facts establishing a probability that Sacks would prevail on his claims. We also find no basis for Sacks's claim that the trial judge was biased. We affirm the order granting Pietro's anti-SLAPP motion.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL HISTORY
In March 2006, defendant Pietro was charged with felony sex offenses in Los Angeles County Superior Court. Sacks contacted Pietro to solicit his engagement as Pietro's defense attorney. Sacks told Pietro that he had substantial experience in defending major felony cases, that Pietro was "virtually assure[d]" of acquittal if he retained Sacks as his defense attorney, and that he would associate an attorney named Angela Berry to assist him in Pietro's defense. Pietro entered into a written fee agreement with Sacks. Pursuant to the agreement, Pietro paid Sacks $30,000 for Sacks's representation of him though trial. Before his preliminary hearing, Pietro learned that Sacks had no criminal defense experience, a fact confirmed by Angela Berry. Berry informed Pietro that Sacks refused to pay her and she would not assist with Pietro's defense. Pietro also learned Sacks paid a "finder's fee" to Pietro's non-attorney friend, who helped Sacks to be retained as Pietro's attorney.
On October 1, 2006, Pietro attempted to terminate the representation by Sacks and requested a full refund of the fee. Sacks, however, verbally abused Pietro and his wife, told Pietro's friends that he would almost certainly be convicted if he fired Sacks, and threatened to tell the prosecutor in Pietro's criminal case that Pietro had admitted committing the charged crimes. Pietro relented and did not terminate Sacks's representation. When Sacks later represented Pietro at his preliminary hearing, however, he was unprepared, failed to pursue lines of inquiry that could have resulted in dismissal of some or all charges or might have developed information that would have assisted Pietro's defense, and failed to introduce information that would have proved Pietro incapable of committing the charged crimes. Two days after the preliminary hearing Pietro terminated Sacks's representation and requested a refund of $25,000 to enable him to retain new defense counsel. Sacks refused to refund any of the fee, to provide an accounting of his time or expenses, or to cooperate with Pietro's new defense attorney. Pietro's new attorney obtained his case file and advised Pietro that Sacks had done no work to prepare for the preliminary hearing or to prepare the case for trial. Sacks was acquitted at trial.
On January 16, 2007, Pietro filed a complaint against Sacks, alleging causes of action for breach of contract, fraud, breach of fiduciary duty, and intentional infliction of emotional distress. The trial court sustained Sacks's demurrer without leave to amend and entered a judgment of dismissal, from which Pietro appealed. The Court of Appeal affirmed the judgment of dismissal and remittitur issued on April 7, 2010.
Pietro also filed a complaint against Sacks with the State Bar of California, which summarily dismissed the complaint as being made with insufficient grounds for disciplinary action.
On April 29, 2010, Sacks filed a complaint against Pietro alleging causes of action for malicious prosecution, abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress. A cause of action for malicious prosecution alleged that Pietro filed Los Angeles County Superior Court case BC364695, Pietro v. Sacks, without probable cause and knowing that his claims were meritless and had no probability of prevailing at trial. The complaint alleged that Pietro brought this action maliciously in that it was brought solely to impair, vex, annoy, and injure Sacks. The abuse of process cause of action alleged that pursuant to Pietro v. Sacks, Pietro filed perjurious declarations with knowledge they would cause detriment to Sacks and Sacks's financial interests, and initiated a bar complaint against Sacks with the goal of gaining an unfair advantage in Pietro v. Sacks. The complaint also alleged causes of action for intentional and negligent infliction of emotional distress.
On June 28, 2010, Pietro filed special anti-SLAPP motion to strike Sacks's complaint pursuant to section 425.16. The motion alleged that Sacks filed the lawsuit in retaliation for Pietro's lawful and constitutionally protected right of petition to vindicate his rights against Sacks for willful and abusive violations of his duties to Pietro as his former client. The motion also argued that Sacks's lawsuit violated section 425.16 because filing a complaint in a court was a statement made before a judicial proceeding and because Pietro filed his prior complaint in furtherance of the exercise of the constitutional right of petition in connection with a public issue. The motion further alleged that it was not probable that Sacks would prevail on his claim.
The trial court found that Pietro had shown that his claims arose from protected activity, in that litigation fell within the scope of protected acts under section 425.16, which shifted the burden to Sacks to establish a probability of prevailing on the merits of his claims. The trial court found that Sacks had not made a prima facie showing of facts to illustrate the probability of prevailing on any cause of action, and the litigation privilege barred the causes of action for abuse of process and for intentional and negligent infliction of emotional distress. The trial court granted Pietro's anti-SLAPP motion on August 27, 2010.
Sacks filed a timely notice of appeal from the order granting Pietro's anti-SLAPP motion.
ISSUES
Sacks claims on appeal that:
1. False reporting of activity is not privileged and is not a public issue and gives rise to tort liability;
2. The trial court's two-step analysis of the complaint was erroneous;
3. Pietro's actions giving rise to the complaint do not constitute a public interest;
4. Sacks demonstrated the probability of prevailing on all claims;
5. Pietro's actions in the complaint were not subject to anti-SLAPP protection;
6. The trial court displayed bias in allowing a motion exceeding 15 pages, without a table of contents, without a prior motion for leave to file by Pietro.
DISCUSSION
1. The Anti-SLAPP Statute and the Standard of Review
The Legislature enacted section 425.16 to deter a "strategic lawsuit against public participation" (SLAPP), defined as "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Id., subd. (a).) Section 425.16, subdivision (b)(1), allows defendants to bring a special motion to strike a complaint: "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."
Thus the statute establishes a two-step process for determining whether to strike an action as a SLAPP. "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]. [Second,] [i]f 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." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
With regard to the first determination, the statute defines " 'act 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' " to include: "(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).)
"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." (§ 425.16, subd. (b)(2).) This summary-judgment-like procedure allows the trial court to evaluate the merits of the lawsuit at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
The appellate court reviews "the record independently to determine whether the asserted cause of action arises from the defendant's free speech or petition activity, and, if so, whether the plaintiff has shown a probability of prevailing." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894.) To be stricken under the anti-SLAPP statute, a cause of action must satisfy both prongs of section 425.16, subdivision (b), i.e., it must arise from protected activity and it must lack even minimal merit. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
2. Pietro Made a Threshold Showing That the Challenged Causes of Action in His Complaints Against Sacks Arose from Protected Activity
The first question is whether Pietro made a threshold showing that the challenged causes of action arose from protected activity. The critical consideration is whether the cause of action is based on defendant's protected free speech or petitioning activity. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) A defendant meets this burden by demonstrating that the act underlying plaintiff's cause of action fits a category in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Pietro based his motion to strike on section 425.16, subdivision (e)(1) and (2), which defines an act in furtherance of a person's constitutional right of petition or free speech in connection with a public issue to include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and ] (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[.]" Pietro's motion argued that his statements made in filing of a complaint against Sacks were protected because they were made before a judicial proceeding and in connection with an issue under consideration or review by a judicial body.
All allegations in Sacks's complaint against Pietro refer to statements Pietro made in his underlying complaints against Sacks in Los Angeles County Superior Court and in the State Bar of California. The constitutional right of petition encompasses the basic act of filing litigation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) Moreover, the filing of a judicial complaint satisfies the "in connection with a public issue" component of section 425.16, subdivision (b)(1) because it pertains to an official proceeding. (Chavez v. Mendoza, at p. 1087.) Thus Sacks's action falls squarely within the ambit of the anti-SLAPP statute's requirement that the challenged causes of action arose from protected activity. (§ 425.16, subd. (b)(1).)
3. By Failing to Provide a Prima Facie Showing of the Merits of His Case, Sacks Failed to Meet His Burden of Showing There Was a Probability Sacks Would Prevail on the Causes of Action in His Complaint
Pietro having shown that the challenged causes of action arose from protected activity, the burden then shifts to plaintiff Sacks to establish that there is a probability that he will prevail on his claims. (§ 425.16, subd. (b)(1).) To establish the probability of prevailing, the plaintiff need only have " 'stated and substantiated a legally sufficient claim.' " (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.)
As the trial court found, Sacks's opposition to Pietro's anti-SLAPP motion made no showing of facts to establish a probability that Sacks would prevail on his claims. Sacks's opposition argued that Pietro could not defeat the likelihood that Sacks would prevail on all causes of action. Thus Sacks erroneously placed the burden on Pietro to show that Sacks's complaint was meritless. Instead the burden was on the plaintiff— Sacks—to demonstrate that there was a probability Sacks would prevail on his claims at trial by providing a prima facie showing of the merits of Sacks's case. (Navellier v. Sletten, supra, 29 Cal.4th at p. 94.) Sacks's opposition to the anti-SLAPP motion did not meet this burden.
Sack's opposition also argued that Pietro's anti-SLAPP motion was barred by the litigation privilege of Civil Code section 47, which protected Sacks's actions in the Pietro criminal case. Sacks mistakes the inquiry of the anti-SLAPP motion, which is whether Sacks's complaint against Pietro should be stricken as a lawsuit brought primarily to chill the valid exercise of freedom of speech and petition for the redress of grievances, not whether the litigation privilege protected Sacks's representation of Pietro's criminal case.
On appeal, Sacks argues that Pietro's filing of false affidavits in the superior court case and before the State Bar Association was defamation, as each attacked Sacks's occupation and reputation as an attorney, and that these were not protected speech and were not subject to anti-SLAPP protections. However, defamatory statements in a complaint or in court pleadings are privileged communications under Civil Code section 47, and a suit based on such communications is meritless. (Church of Scientology v. Wollersheim (1989) 42 Cal.App.4th 628, 651; disapproved on unrelated ground, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.)
Sacks also argues that Pietro's civil case against Sacks, and the subsequent appeal, were based on perjury and did not concern a public issue under the anti-SLAPP statute. Sacks argues that the litigation privilege of Civil Code section 47 does not protect conduct if he can establish the elements of malicious prosecution, citing Hagberg v. California Federal Bank (2004) 32 Cal.4th 350. Hagberg holds that the litigation privilege of Civil Code section 47, subdivision (b), privileges statements made when a citizen contacts law enforcement personnel to report another person's suspected criminal activity, and such statements can be the basis for tort liability only if the plaintiff can establish the elements of malicious prosecution. (Id. at p. 355.)
To establish a cause of action for malicious prosecution of a civil proceeding, a plaintiff must demonstrate that a prior action (1) was commenced by or at the direction of the defendant; (2) was pursued to a legal termination in plaintiff's favor; (3) was brought without probable cause; and (4) was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.) Sacks's opposition to the anti-SLAPP motion did not introduce any evidence that Pietro's prior civil case or his State Bar complaints were brought without probable cause and were initiated with malice. Thus Sacks made no effort to demonstrate that there was a probability Sacks would prevail on his claim for malicious prosecution at trial by providing a prima facie showing of the merits of that cause of action. Thus he failed to meet his burden of showing there was a probability that he would prevail on this cause of action in his complaint against Pietro.
Sacks's opposition made no prima facie showing of the merits of his causes of action for negligent and intentional infliction of emotional distress. With regard to Sacks's cause of action for abuse of process, "the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action." (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.)
Thus the trial correctly granted Pietro's anti-SLAPP motion.
4. Sacks Has Not Shown Bias of the Trial Judge
Sacks claims that the trial court displayed bias in allowing Pietro to file a motion exceeding 10 pages, without a table of contents, where Pietro did not make a prior motion for leave to do so, and because Pietro filed his anti-SLAPP motion late.
California Rules of Court, rule 3.1113(d) limits an opening memorandum in support of a motion to 15 pages, and if that memorandum exceeds 10 pages subdivision (f) requires a table of contents and table of authorities. Pietro's anti-SLAPP memorandum was 17 pages and had no table of contents or authorities. Noncompliance with such rules, which had no penalty attached, did not prevent the court from hearing and disposing of the special motion to strike. (Johnson v. Sun Realty Co. (1934) 138 Cal.App. 296, 299.) Absent any showing to the contrary—and Sacks made none—it will be presumed that the trial court disregarded these procedural rules for sufficient cause and to serve the ends of justice, as it had the power to do. (Ibid.)
" ' "Bias and prejudice are not implied and must be clearly established. A party's unilateral perception of bias cannot alone serve as a basis for disqualification. Prejudice must be shown against a particular party and it must be significant enough to impair the adjudicator's impartiality. The challenge to the fairness of the adjudicator must set forth concrete facts demonstrating bias or prejudice." ' " (Linney v. Turpen (1996) 42 Cal.App.4th 763, 773.) Sacks made no such showing in the trial court or in this court.
Where prejudice or actual bias is not shown, an alternative standard for possible disqualification permits disqualification of a judicial officer under section 170.1, subdivision (a)(6)(A)(iii): "A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." The facts being undisputed, the question whether the trial judge could be impartial under this provision is one of law. (Linney v. Turpen, supra, 42 Cal.App.4th at p. 776.) We find that this case—the hearing and determination of an anti-SLAPP motion that was 17 rather than 15 pages in length and lacked tables of contents and authorities (Sacks's opposition also lacked tables of contents and authorities)—does not sustain even an appearance of bias.
Sacks also points to the requirement in section 425.16, subdivision (f), that a special motion to strike "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." The record on appeal contains no proof of service of the complaint, so it is not possible to determine whether the special motion to strike was filed within 60 days of service of the complaint. The complaint appears to have been filed on April 29, 2010, and Pietro's special motion to strike was served on Sacks on June 25, 2010, and appears to have been filed on June 28, 2010. Thus the anti-SLAPP motion was served and filed within 60 days of the filing of the complaint. Even if the anti-SLAPP motion was filed more than 60 days after service of the complaint, section 425.16, subdivision (f) gives the trial court discretion to accept filing of the complaint "at any later time." Pietro's filing of the anti-SLAPP motion does not appear to have violated the 60-day requirement of section 425.16, subdivision (f), and provides no basis for a finding that the trial judge was biased. We find no merit to the claim of bias.
DISPOSITION
The order granting defendant's special motion to strike is affirmed. Costs on appeal are awarded to defendant Ron Pietro.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.