Opinion
G039382
6-24-2008
SHAHNAZ E. TEHRANI, Plaintiff and Respondent, v. DIETER K. RAPP, Defendant and Appellant.
Dieter Karl Rapp, in pro. per., for Defendant and Appellant. Law Office of Glenn H. Johnson and Glenn H. Johnson for Plaintiff and Respondent.
Not to be Published
Defendant Dieter K. Rapp appeals from an order denying his special motion to strike under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code unless otherwise stated) the complaint on common counts by plaintiff Shahnaz E. Tehrani. He claims he met his burden to show the cause of action for money had and received is protected activity under section 425.16 and that defendant did not show the likelihood of prevailing on her claims for money had and received. We disagree with the first contention and thus affirm.
FACTS AND PROCEDURAL HISTORY
This case has a long history with over 10 years of commercial transactions and resulting litigation bringing us to this point. Two cases have already been decided by this court, Newport Sports Corporation v. Tehrani (Nov. 3, 2003, G030553 & G030691) (nonpub. opn.) (first opinion) and Tehrani v. Newport Sports Corporation (Aug. 29, 2006, G035362) (nonpub. opn.) (second opinion). The detailed and somewhat complicated facts underlying the present action are clearly spelled out in those opinions and there is no reason to fully recite them here. What follows are the facts necessary to resolve the matter before us.
Tehrani loaned money to one David Kang; the promissory note was secured, in part, by all the assets of Newport Sports Club (Newport), including the Newport Beach Tennis Club (Club). (First opinion, p. 2.) Newport, Club and others subsequently sued Tehrani and Kang for quiet title. During the pendency of the action, Newport sought to sell Club. Tehrani agreed to release her liens in exchange for deposit of $135,000 into an escrow; this sum was later interpleaded. After trial of the action, the court found the liens valid. (Id. at p. 3.)
Newport then filed a declaratory relief action against Tehrani, alleging she had no right to the $135,000 interpleaded funds. Tehrani cross-complained for, among other things, claim and delivery, and sought a writ of possession for the interpleaded money. A different judge tried this second case and ruled in favor of Newport and against Tehrani. (First opinion, pp. 3-4.) Rapp, Newports attorney, prepared a judgment and presented it to the clerk of the superior court, who then disbursed the interpleaded funds to Rapps trust account. (Second opinion, p. 3.)
Tehrani appealed the second judgment and we reversed in part, holding that, on the basis of collateral estoppel, Tehrani should have prevailed against Newport on its complaint and on her cross-complaint for claim and delivery. (First opinion, p. 6.) The decision declined to decide Tehranis claim for alleged irregularities in the disbursement of the interpleaded funds. (Id. at p. 7.)
After remand, the superior court conducted a second trial. Before trial commenced, Tehrani filed a motion in limine to have the court declare the prior judgment had never been entered and order the interpleaded funds be redeposited with the court. The court denied the motion. Tehrani then filed a motion to amend her cross-complaint to add a claim against Rapp for withdrawing the interpleaded funds without providing her with notice of entry of judgment. The court denied this motion as well. (Second opinion, p. 3.)
On appeal we affirmed, stating that as to Rapp, his withdrawal of the interpleaded funds occurred after entry of the original judgment, so the court did not abuse its discretion in denying the motion to amend. We also noted that "Tehrani [was] not barred from pursuing a separate action against Rapp, if her claim or claims meet general pleading requirements . . . ." (Second opinion, p. 8.)
Tehrani then filed the current action against Rapp at issue now, alleging two counts for money had and received. She set out the two prior actions, alleging that after Rapp withdrew the funds he disbursed approximately $70,000 to himself. She pleaded that despite her demand, Rapp had failed to repay the $70,000, which he had kept for himself.
Rapp filed an anti-SLAPP motion. The courts tentative decision, labeled as a statement of decision (which is the subject of the motion to augment), granted the motion, finding that the common counts arose "directly from Rapps litigation activities . . . in the underlying action, and are protected activity under [section] 425.16[, subdivision ](e)(1))." It also found Tehrani had not met her burden to show she would prevail on the merits of the complaint. After oral argument, the court ultimately denied the motion, finding that although the money was originally paid into Rapps trust account in connection with the prior litigation, the current "complaint does not address matters of free speech, only the simple re-payment of money."
DISCUSSION
Section 425.16, subdivision (b)(1) provides that a cause of action arising from a constitutionally protected right of free speech may be stricken unless the plaintiff establishes the probability it will prevail on the claim. The court must engage in a two-step analysis under this section. First it must determine whether the defendant has met its burden to show "that the challenged cause of action is one arising from protected activity." (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If so, the burden shifts to the plaintiff to show the likelihood of prevailing on the claim. (Ibid.)
Causes of action for money had and received are not protected activity under the anti-SLAPP statute. Contrary to Rapps argument, the gravamen of the claims is his failure to return the money to Tehrani after the judgment was reversed and demand made on him. This conduct does not fall within any portion of section 425.16.
We reject Rapps assertion the action is based on his conduct "during an official judicial proceeding." Although his original acts may have been in connection with a judicial proceeding, i.e., obtaining release of the interpleaded funds after judgment, the instant action concerns his failure to return the money after the judgment was reversed. His continued possession of the funds is not based on his "legal representation of an opposing party in the underlying . . . action." Even his own description of his alleged protected acts omits any reference to his retention of the funds after reversal of the judgment.
We reject Rapps description of the common count claims as a false characterization of his conduct, which he describes as representation of a client. Reliance on Soukup v. Stock (2004) 118 Cal.App.4th 1490 to support this argument is misplaced; the Supreme Court granted review in that case (Soukup v. Stock, review granted Oct. 20, 2004, S126864) and it may not be cited (Cal. Rules of Court, rules 8.1105(e)(1) & 8.1115(a)).
In addition, cases holding that a lawyer for a party in a prior action who is sued for malicious prosecution or abuse of process is protected under the SLAPP statute do not change the result here. As noted above, the gravamen of the complaint against Rapp is not in tort based on his pursuit of the underlying action. Moreover, contrary to Rapps argument, the complaint seeks return of funds Rapp allegedly kept for himself, not those disbursed to his client.
Further, that Rapps acquisition of the disputed funds derived from prior proceedings does not mean his activity falls within the statute. In Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, cited by Rapp, the court affirmed denial of an anti-SLAPP motion filed by lawyers sued for legal malpractice. The court stated that just "because [a legal malpractice action] shares some similarities with a malicious prosecution action and involves attorneys and court proceedings" does not mean it is subject to the protection of section 426.15. (Id. at p. 630.) "`[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. [Citation.]" (Ibid.) Likewise, Rapps failure to return the funds after demand does not fall within the litigation privilege of Civil Code section 47.
Because Rapp has not met his burden to show the retention of funds after the judgment was activity falling within the protection of section 425.16, Tehrani was under no obligation to show the probability of prevailing on the suit and we do not get to that question.
It is unclear whether Rapp is also challenging the simultaneous order overruling his demurrer to the complaint. In a couple of sentences he notes the ruling, that there is an issue of equitable tolling of the statute of limitations that cannot be decided on demurrer, and argues that nothing in the record supports such a ruling. Except in very limited circumstances not applicable here, the overruling of a demurrer is not an appealable order. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) Moreover, even had it been appealable, Rapp failed to follow court rules by setting out argument and authority under a separate heading, thereby forfeiting any claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); (People v. Stanley (1995) 10 Cal.4th 764, 793.)
DISPOSITION
The motion to augment the record is granted. The order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR:
ARONSON, J.
FYBEL, J.