Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior County in Los Angeles County No. BC365900, Andria K. Richey, Judge. .
Michael Leight, in pro. per; Law Offices of Michael Leight and Michael Leight for Defendants and Appellants.
Baute & Tidus, Jeffrey A. Tidus, David P. Crochetiere and Patrick M. Maloney for Plaintiff and Respondent.
COOPER, P. J.
The current lawsuit concerns the alleged theft of documents from respondent Fred DiBernardo’s law office. We hold that such conduct does not constitute protected speech or petitioning under Code of Civil Procedure section 425.16, also known as the anti-SLAPP (strategic lawsuits against public participation) statute. We affirm the trial court’s order denying appellants’ anti-SLAPP motions.
Undesignated statutory citations are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
1. Parties
Appellants are Rose DeLuca; her daughters Janet Esposito, Roseann DeLuca and Vanessa DeLuca; and their attorney, Michael Leight. Respondent is Rose’s brother, Fred DiBernardo. Rose also has a son, John DeLuca (John), who is not a party to this litigation. DiBernardo, an attorney, represents John in legal matters.
Robert C. Danner was named as a defendant in the complaint but was not identified as a defendant in the second amended complaint.
For purposes of this appeal, we accept appellants’ undisputed assertions that they “own a controlling interest in, and certain of them are officers and directors of, State Fish Company, Inc. (State Fish) located in San Pedro, California.” (Underscoring and bold omitted.) John became the president of State Fish after the death of his father. DiBernardo once was general counsel for State Fish.
Appellants’ disputed assertion that John and DiBernardo “surreptitiously established” a competitive company while employed at State Fish explains the antagonism between the parties. That claim is the subject of other litigation, and the company referred to first was known as Sea Star Foods, Inc., (Sea Star) and then as J. DeLuca Fish, Co. (We only report the allegation, intending no conclusion as to its accuracy.) In his declaration, Leight represents that (1) on June 2, 2006, John filed an unlawful detainer lawsuit (case No. BC353346); (2) on August 2, 2006, State Fish filed a lawsuit against John; and (3) John filed a derivative lawsuit against State Fish and his mother and sister (case No. BC366119). Leight states that DiBernardo resigned from State Fish in 2005 “so that he could assist and counsel John in their plans to take over [State Fish].”
2. The Letter
On May 10, 2006, Leight wrote Vanessa, Janet, Roseann, and Rose DeLuca that he received by mail numerous documents, which were attached to the letter. That letter (Letter) is the centerpiece of the current litigation. Leight identifies 12 documents including tax returns, articles of incorporation and amendments thereto, a settlement agreement, checks, and a bill of sale. Leight stated that the documents show DiBernardo and John were in business in competition with State Fish and formed the business while working at State Fish. He concluded the Letter by stating, “Until I determine how best to utilize the foregoing documents and information, please do not reveal to John or Fred, or to anyone who may pass the information onto them, anything about the enclosed documents or even that we have them.” (Underscoring omitted.)
3. The Complaint
DiBernardo filed a complaint alleging causes of action for conversion and right of privacy. He sought a writ of possession, and a temporary and permanent injunction. In the second amended complaint, which is the operative pleading, DiBernardo also alleged a violation of Penal Code section 496. That statute defines the crime of receiving stolen property.
DiBernardo alleged that one or more of the defendants “stole the documents from Plaintiff’s office and surreptitiously made copies. Alternatively, and at the very least, Defendants indisputably received and concealed stolen documents, knowing them to be stolen.” (Italics omitted.) DiBernardo also alleged that the documents were sent to Leight “for use in the litigation against Plaintiff DiBernardo’s Client or Clients.”
The court sustained a demurrer to the cause of action for “right of privacy.” A temporary restraining order was issued “to preserve all issues” but did not “constitute a finding that property was stolen.”
4. The Motions to Strike and Opposition
Appellants filed separate motions to strike the second amended complaint, each alleging that the lawsuit was a strategic lawsuit against public participation (SLAPP) and that section 425.16 required the court to strike the complaint. They argued that the claims were subject to the special motion to strike because they arose from the filing and maintenance of a prior lawsuit. They also argued that DiBernardo could not demonstrate a probability of prevailing on the merits.
In declarations, Leight stated that he did not steal anything from DiBernardo. Vanessa DeLuca stated that she had not stolen anything from DiBernardo. She stated that documents generated by Sea Star “belong to State Fish” because the money and resources used by Sea Star came from State Fish. (Underscoring omitted.)
DiBernardo opposed the motions to strike. In support of his opposition, DiBernardo states: The documents referenced in the Letter were copies of documents kept in files or vaults in DiBernardo’s office as evidenced by the inclusion of his “received” stamp and his handwritten notes. DiBernardo never gave anyone permission to make copies of the documents. DiBernardo stated that appellants used the documents in other litigation among the parties. The allegedly stolen documents belong either to DiBernardo or to J. DeLuca Fish, Co. (formerly named Sea Star Foods, Inc.), DiBernardo’s client.
5. The Trial Court Findings
The court found that the second amended complaint arose out of defendants’ conduct in the underlying litigation and DiBernardo demonstrated a probability of prevailing on his claims. The court denied appellants’ separate anti-SLAPP motions. Appellants filed notices of appeal from the minute order and subsequent order denying their special motions to strike. The two appeals were consolidated. An order granting or denying a special motion to strike is immediately appealable. (Russell v. Foglio (2008) 160 Cal.App.4th 653, 659.)
DISCUSSION
For reasons we explain, we conclude that the alleged wrongful conduct does not fall within the ambit of section 425.16.
I. Background of the Anti-SLAPP Statute
Section 425.16, known as the anti-SLAPP statute, was “an effort to curtail lawsuits brought primarily ‘to chill the valid exercise of . . . freedom of speech and petition for redress of grievances’ and ‘to encourage continued participation in matters of public significance.’” (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 408, fn. 1.) It applies “to any cause of action arising from an ‘“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.”’” (Gallimore, at p. 1397.)
The foregoing phrase is defined as “(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).) “[S]tatements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
There are two steps in determining whether an anti-SLAPP motion should be granted. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) “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).) 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.” (City of Cotati v. Cashman, at p. 76.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.’” (Id. at p. 78, italics omitted.) We review de novo the trial court’s order. (San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees Retirement Assoc. (2004) 125 Cal.App.4th 343, 352.)
II. Appellants Fail To Establish the Threshold Showing that the Causes of Action Arise From a Protected Activity
With respect to the first step, appellants argue section 425.16 is applicable because the Letter “is a communication by Leight to the DeLuca Appellants, his clients, which directly concerns the State Fish Action and the Unlawful Detainer Action. It directly concerns the roles of DiBernardo and John DeLuca in the wrongs committed against State Fish.” Appellants reason that because this lawsuit is based on the Letter it falls within the ambit of section 425.16. Specifically, they quote from section 425.16, subdivision (e), which includes as protected activity as “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.”
Intrusive prelitigation conduct including procuring documents by improper means does not fall within the ambit of the anti-SLAPP statute. (Paul v. Friedman (2002) 95 Cal.App.4th 853, 858, 867 (Paul).) In Paul, the alleged misconduct included all of the following: an investigation that exceeded the scope of discovery, public disclosure of embarrassing private facts, intrusion into private property owned by Paul, procuring internal documents by improper means and using the documents to make false accusations and embarrassing disclosures. (Id. at pp. 857-858.) The court held that the alleged misconduct was irrelevant to the issues raised in an arbitration proceeding and was not an act in connection with any issue under consideration in the proceeding. (Ibid.) “[I]t is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding.” (Id. at p. 867; see also Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 414.)
In Paul,the attorney’s investigations and disclosure of private information were irrelevant to the issues raised in the arbitration proceeding. In contrast here, there is no dispute that the documents attached to Leight’s letter were relevant to the underlying litigation between the parties. However, here the content of the documents is irrelevant to the alleged wrong -- taking the documents from DiBernardo’s office -- even if the content of the documents is relevant to other litigation between the parties.
“The [anti-SLAPP] statute’s definitional focus is not on the form of the plaintiff’s cause of action but rather the defendant’s activity giving rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232.) While appellants’ arguments concerning the applicability of section 425.16 relate to the contents of Leight’s letter and attached documents, in contrast, the gravamen of DiBernardo’s lawsuit is that appellants improperly took documents from his office or received stolen documents. That the allegedly stolen items were documents (as opposed to other personal property) does not show that the alleged wrongful conduct was based on speech. (Cf. Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671 [improperly failing to turn over documents is not based on speech or petitioning activity].) Like in Paul, DiBernardo’s causes of action do not “seek redress for any statements” made in the course of litigation. (Paul, supra, 95 Cal.App.4th at p. 865.) Instead, the lawsuit stems from the method of procuring documents, which appellants do not argue or demonstrate is covered by section 425.16.
Another division of this court refused to extend the anti-SLAPP statute to provide immunity for criminal fraud “so long as the defrauding party was willing to take its cause to court.” (People ex rel. 20th Century Insurance Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 285) In Flatley v. Mauro (2006) 39 Cal.4th 299, 320, our Supreme Court concluded that “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” Because we conclude that the operative pleading is not based on speech or petitioning activity, we need not consider whether as a matter of law the alleged conduct was illegal.
The plaintiff is not required to show a probability of prevailing where the defendant fails to meet the threshold burden. (Gallimore v. State Farm Fire & Casualty Ins. Co., supra, 102 Cal.App.4th at p. 1396.) Therefore, we need not consider appellants’ arguments that DiBernardo failed to establish a probability of prevailing on the merits. The order denying the anti-SLAPP motions must be affirmed (albeit for reasons different than those expressed in the order).
Contrary to appellants’ suggestion at oral argument, DiBernardo was not required to appeal from that portion of the order in order to preserve the issue on appeal. In denying appellants’ anti-SLAPP motions, the trial court ruled in DiBernardo’s favor. DiBernardo therefore was not an aggrieved party for purposes of standing to appeal under section 902. (See County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342.) To the extent appellants are arguing that the trial court’s order is severable for purposes of appeal, that argument lacks merit and is inconsistent with the notice of appeal, which is from the order denying the special motion to strike. The sole issue encompassed in the order was whether the anti-SLAPP motions should be granted, which in turn depends on satisfying both threshold requirements. (See Gonzales v. R. J. Novick Constr. Co., Inc. (1978) 20 Cal.3d 798, 805-806 [describing a severable judgment to be one in which the determination, which could be made as a result of an appeal cannot affect the determination of the remaining issues in the lawsuit].)
DISPOSITON
The order denying appellants’ anti-SLAPP motions is affirmed. Respondent is entitled to costs on appeal.
We concur: RUBIN, J., BIGELOW, J.