Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2009-00083248- CU-MC-CTL Jay M. Bloom, Judge.
O'ROURKE, J.
Robert Rolla appeals from a judgment entered after the trial court granted defendants Crusader Insurance (Crusader) and Cary Cheldin's (Cheldin) special motion to strike his complaint under Code of Civil Procedure section 425.16. Rolla sued Crusader and Cheldin for violations of Business and Professions Code section 17200. The trial court granted the special motion to strike on grounds Rolla's causes of action stemmed from petitioning activity and he did not demonstrate a probability of prevailing on their merits based on the litigation privilege in Civil Code section 47, subdivision (b); Rolla, a third-party claimant, could not circumvent the holding in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287; and the statutes upon which the Business and Professions Code section 17200 claims were premised did not afford liability.
Although appellant's surname on some of his filed documents is listed as "Rollo, " in his amended complaint and opening brief he spells it as "Rolla, " therefore we will use that spelling in this opinion.
All statutory references are to the Code of Civil Procedure unless otherwise stated. Section 425.16 is commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Rolla contends the trial court erroneously failed to consider the first amended complaint; respondents did not meet their burdens under the anti-SLAPP statute; and respondents' attorney fees request is unwarranted. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2009, Robert Rolla filed a Judicial Council form complaint against Eric Thomas, a driver, and his employer, Kearny Mesa Towing, for a February 18, 2006 accident that damaged Rolla's 1973 Chevrolet camper. In the same complaint, he separately set forth causes of action against Crusader and Cheldin for violations of Business and Professions Code section 17200. In support of those causes of action, Rolla alleged: "As CEO of [Crusader], def[endant] Cheldin has devised, and implemented through [Crusader], an unlawful business practice or act against plaintiff [Rolla] by consistently refusing to compare vehicles of the same make or model, but rather, Cheldin has created a system of using substantially substandard vehicles for valuation that are not remotely comparable to the actual damaged vehicle. As CEO for [Crusader], Cheldin's scheme of denying a viable claim for damages and defrauding claimants out of their true market value for damages suffered violates Cal[ifornia] Penal Code section 550 and U.S. wire [and] mail fraud statutes. Moreover, Cheldin's scheme of fraud, as utilized through his employees and [Crusader], requires claimants to retain an attorney and file suit to receive the fair market value of damaged property, for claims that should not, nor rarely ever involve an attorney."
In April 2009, Cheldin and Crusader filed an anti-SLAPP motion. They argued that under section 425.16, subdivision (a)(1), Rolla's complaint arose from their acts in furtherance of their rights to petition, specifically their prelitigation discussions with Rolla. Respondents submitted into evidence a traffic accident report; five letters Crusader sent to Rolla in 2006, among which was a proposed settlement and release for $3,993.14; and Crusader's requests for documentation regarding the Chevrolet's value. A claim examiner's November 1, 2006 request stated, "You need to furnish me with documentation evidencing any customizations or enhancements made to the vehicle as well as a copy of Form 262, Vehicle/Vessel Transfer Form, you received from the salvage yard. [¶] Unless/until I receive the above requested information/documentation, no further action can be taken in this matter."
There is no evidence of further communication between the parties until a January 30, 2009 letter, in which Rolla's attorney wrote to Crusader summarizing a conversation earlier that day and "set forth a 'road map' of things to come." Rolla's attorney continued: "I explained, as I will here, that there are several ways to resolve this case, either with or without litigation. As I stated in my phone call, I will not only sue Kearny Mesa Towing and Eric Thomas, but also [Crusader] under [California Business & Professions Code section 17200]. As I informed you, the cumulative effect of the foregoing is that [Crusader] will be required to hire two separate law firms to represent the two separate legal interests and to respond to a 15-20 page complaint for damages, along with propounded discovery. I cost figure [sic] that I conservatively place at $15-20k." Rolla's attorney rejected the previous $3,993 settlement offer and counteroffered $13,000.
On February 3, 2009, Crusader responded by denying the alleged wrongdoing, and forwarding to the attorney documents on which it based its valuation of the Chevrolet.
Rolla opposed the motion to strike, arguing the lawsuit did not arise from prelitigation discussions with respondents but rather from respondents' failure to pay for the 2006 accident. He further argued that respondents were in the insurance industry and therefore their section 425.16 claims were exempted under section 425.17, subdivision (c).
Thereafter, respondents attached two letters to their reply brief supporting the motion to strike: an April 24, 2009 letter they sent to Rolla's attorney outlining the lack of evidence for a higher valuation, and inviting him to provide the documentation; and Rolla's attorney's April 29, 2009 response stating that although he welcomed Crusader's invitation to provide "verifiable documentation, " he "felt it demonstrated at least three additional causes of action: (1) failure to pay Mr. [Rolla] the undisputed amount for his damaged camper and truck; (2) unfair business practice of only allowing 'verifiable documentation' as evidence of value; (3) [Crusader's Vice President of Claims's] inclusion as a defendant since he has full settlement authority over the foregoing."
Three days before the hearing on the anti-SLAPP motion, Rolla filed a verified first amended complaint for damages, restitution and injunctive relief.
Following oral arguments, the trial court granted the anti-SLAPP motion. The court took judicial notice of Rolla's filing of his first amended complaint, but ruled that its filing did not render moot the anti-SLAPP motion. Further, the court awarded attorney fees to Crusader and Cheldin as the prevailing parties, but directed them to schedule a separate motion on that matter. On June 30, 2009, a notice of entry of order was filed.
DISCUSSION
I. Section 425.16 / Appellate Standard of Review
The anti-SLAPP statute allows a party to file a special motion to strike causes of action "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 California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1).) In determining whether to grant defendant's anti-SLAPP motion, the court "engage[s] in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.... [I]n making these determinations[, the court] considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We apply our independent judgment to each prong, and rule on the motion de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)
II. Respondents Met Their Threshold Prima Facie Burden
We explained in Freeman v. Schack (2007) 154 Cal.App.4th 719 (Freeman): " '[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.]... [ T]he 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. [Citations.] "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).... " ' " (Id. at p. 727, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) We further explained, "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.' " (Freeman, at p. 727, quoting Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) "[A] plaintiff cannot avoid the operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519.)
"The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. [Citation.] Indeed, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' " (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.)
Here, respondents base their anti-SLAPP motion on section 425.16, subdivision (e)(2), which provides that " 'act in furtherance of a person's right of petition or free speech... includes:... 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." As the court noted in Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, "Communications in connection with anticipated litigation are considered to be' " 'under consideration or review by a... judicial body.' " ' " (Id. at p. 1263.)
In support of the motion, respondents presented evidence, specifically the January 30, 2009 letter, demonstrating that the communication between Rolla's attorney and Crusader started approximately two weeks before the three-year statute on Rolla's claim was set to expire, and it was carried out in connection with and in preparation for the lawsuit. Specifically, Rolla's attorney was forthright about the complications he expected to cause respondents if they elected to pursue litigation. The attorney was clear that he was prepared to sue not only those directly responsible for the accident, but also Crusader and Cheldin under Business & Professions Code section 17200. The attorney was aware of the hardship and economic cost, or as he put it in his prelitigation letter, "the cumulative effect" that his actions would have on respondents, who would be "required to hire two separate law firms to represent the two separate legal interests and to respond to a 15-20 page complaint for damages, along with propounded discovery." Counsel, who also forwarded his letter to codefendant, Kearny Mesa Towing, offered this advice: "seek insurance from a company that timely pays claims and keeps [the towing company] from being unnecessarily sued."
When Rolla did not obtain the desired result from his communications with respondents, he followed the "roadmap" his attorney had set forth in earlier correspondence and filed his complaint, alleging the Business & Professions Code, section 17200 causes of action. The complaint specifically echoed Rolla's attorney's claim that an attorney should be unnecessary in settling claims of this sort with an insurance company, when it stated that respondents' "scheme or fraud" "requires claimants to retain an attorney and file suit to receive the fair market value of damaged property, for claims that should not, nor rarely ever involve an attorney."
Based on the foregoing, we conclude de novo that "the spectre of litigation loomed over all communications between the parties at that time. Thus, the messages concerning the subject of the dispute and threatening appropriate action in that context had to be in anticipation of litigation 'contemplated in good faith and under serious consideration.' [citation] Accordingly, [respondents'] communications in issue satisfied [their] burden under the first step in applying the anti-SLAPP statute by establishing that [their] conduct was protected activity under that statute." (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36.) "An attorney's communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike." (GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908.)
Rolla's arguments to the contrary are not persuasive. First, he relies on various cases―Salma v. Capon (2008)161 Cal.App.4th 1275, 1294; Nguyen-Lam v. Cao (2009)171 Cal.App.4th 858 (Nguyen-Lam); and Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005 (Slauson)―for his contention the trial court erroneously failed to consider his first amended complaint and that "during oral arguments on the tentative ruling the court stated that [he] was 'stuck' with the allegations of [his] unverified, original complaint."
Rolla did not include a copy of the reporter's transcript in the appellate record, and thus we do not know if the comment was made or the context for it. In any event, our review is de novo and we are not bound by the trial court's reasoning. (See Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 110; Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.)
Rolla notes that the court relied on Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049 (Sylmar) but claims that case is irrelevant. It is not. In Sylmar, as here, the plaintiff filed a first amended complaint three days before the SLAPP motion was to be heard, and despite the amendment, the trial court proceeded to hear the SLAPP motion. (Id. at p. 1053.) Relying on Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 (Simmons), the Court of Appeal in Sylmar found no error, concluding that the purpose of the section 425.16 motion is to quickly expose and dismiss certain causes of action lacking merit, and it would frustrate that goal if a plaintiff succeeded in delaying the proceeding, thus increasing the defendant's costs. (Sylmar, supra, at pp. 1055-1056; accord Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 ["a plaintiff cannot use an eleventh-hour amendment to plead around a motion to strike under the anti-SLAPP statute"]; Salma v. Capon, supra, 161 Cal.App.4th at p. 1294 ["Simmons supports automatic dismissal of the amended claims. Requiring the trial court to analyze the amended claims under section 425.16 simply because the claims were amended before the court ruled on the first motion to strike would cause all the evils identified in Simmons."].) Thus, here as in both Sylmar and Salma v. Capon, supra, the trial court did not err in proceeding to hear the SLAPP motion despite the filing of the first amended complaint.
In Nguyen-Lam, the court acknowledged Sylmar's holding, but distinguished it: "True, a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint [citation] but where, as here, the evidence prompting amendment is found in the declarations already submitted for the hearing, there is no risk the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs." (Nguyen-Lam, supra, 171 Cal.App.4th at pp. 871-872.) The court further concluded, that in that case, "the strike opponent has demonstrated the requisite probability of success… [therefore] her complaint falls outside the purpose of the anti-SLAPP statute―indeed, it is not a SLAPP suit at all." (Id. at p. 873.) Here, as we shall discuss, Rolla did not demonstrate a probability of success on his claims in declarations; therefore, there was no basis, under the reasoning in Nguyen-Lam, for the trial court to consider his amended complaint.
In Slauson, in seeking to modify an injunction limiting the manner of protesting outside an adult club, plaintiffs submitted evidence showing the protestors violated the injunction. (Slauson, supra, 112 Cal.App.4th at pp. 1014-1015.) The trial court heard the motion to strike before reaching the plaintiffs' request to modify the injunction, but in denying the motion, relied on plaintiffs' evidence concerning violations of the injunction. On appeal, the court concluded it was not error for the trial court to rely on the evidence of subsequent events because under section 425.16, subdivision (g), "further development of the factual record is contemplated by the anti-SLAPP statute." (Slauson, supra, at p. 1021.) But here the context is not an injunction, and the issue is not discovery.
Rolla next contends the only admissible evidence the trial court could have considered for ascertaining whether respondents met their burden of establishing the first prong of section 425.16 was his pleadings and his attorney's declaration, and states that his January 30, 2009 letter was solely a settlement letter, apparently implying that it could not be relied on for purposes of the anti-SLAPP motion. Rolla does not point us to any indication in the record that he objected to respondents' trial court evidence, and we find none; therefore the issue is not properly raised. (Flatley v. Mauro (2006) 39 Cal.4th 299, 328-329 [finding that in the trial court proceedings plaintiff did not deny that he sent a demand letter and concluding, "We may therefore view this evidence as uncontroverted"]; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 and fn. 17 [deeming waived evidentiary objections made in the context of an anti-SLAPP motion because the parties failed to press the trial court for rulings on them].)
In any event, under section 425.16, subdivision (b), "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." On appeal, Rolla asserts that the following documents in the record were not admissible: the traffic collision report, correspondence between Rolla and Crusader in 2006, the declarations of Cheldin and Crusader's attorney, Rolla's Judicial Council form complaint, and respondents' memorandum of points and authorities. However, Rolla does not specifically challenge the admissibility of his attorney's January 2009 letter that was sent to Crusader days before the lawsuit was filed. We infer that the trial court took the letter into account, and concluded that, at a minimum, it was admissible for showing it was written in preparation for litigation, and helped respondents to meet their prima facie burden in the first prong of the section 425.16 analysis. Rolla has not provided us any basis to disagree with that conclusion.
III. Rolla did not Establish a Reasonable Probability of Prevailing
Because Rolla's Business and Professions Code section 17200 causes of action against respondents arise from protected petitioning activities, we turn to the second prong of the section 425.16 analysis: whether Rolla has established a probability of prevailing on those causes of action.
" 'In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must " 'state[ ] and substantiate[ ] a legally sufficient claim.' " [Citation.] Put another way, the 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." [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' " (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19-20.) "Where a cause of action refers to both protected and unprotected activity and a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure." (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.)
Rolla asserts that section 425.16's first prong was never satisfied and in his appellate brief he has not attempted to state and substantiate a legally sufficient claim (Navallier, supra, 29 Cal.4th at pp. 88-89), other than to make an unsupported broadside attack against California Supreme Court authority in Moradi-Shalal, supra. He starts, "Superior Court Judges love to hide behind the big, broad shoulders of [Moradi-Shalal] anytime an insurance company is named in a lawsuit." Rolla's inadequate briefing on this issue has provided us no basis to extricate this case from the reach of Moradi-Shalal, which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In any event, we agree that litigation privilege applies. In general, communications in connection with matters related to a lawsuit are privileged under Civil Code section 47, subdivision (b). " '[C]ommunications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b).' " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Under the "usual formulation, " the litigation "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." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) This includes prelitigation communications involving the subject matter of the ultimate litigation. (Briggs v. Eden Council for Hope & Opportunity, supra, at p. 1115.)
Here, Rolla's attorney began communicating with respondents approximately two weeks before the statute of limitations ran on his client's claims. The communication is related to the claims that arose from the accident. The litigation privilege plainly applies, and Rolla has failed to provide any evidence which, if believed by the trier of fact, would have defeated the privilege. Accordingly, the SLAPP motion was meritorious. In light of this conclusion, we need not separately analyze the merits of Rolla's allegations that respondents committed mailing violations and fraud violations and also violated Penal Code section 550.
IV. Attorney Fees
In Rolla's opening brief, he concedes, "the [trial] Court has yet to award the exact amount of attorney fees" but he claims to be "preserving his right to object to any amount as clearly not supported by the evidence submitted." Rolla's opening brief was filed in November 2009. Respondents' reply brief was filed in mid-March 2010, and they represented that "[t]he trial court only recently awarded attorney fees." Rolla did not file in this court a motion to augment the record to include information relevant to the attorney fees claim. Therefore, the issue is not properly before us.
Nonetheless, we disapprove of comments in Rolla's opening brief denigrating opposing counsel; for example, a heading was titled, "Perjury, perjury and more perjury by [respondent's attorneys] to over-inflate their request for attorney fees." Rolla makes an ad hominem attack against respondents' attorneys, who assertedly "padded the request with inappropriate, and non-collectible matters." We further note that the opening brief refers to the insurance company as "some chessy [sic], tight-ass, third-rate, fly-by-night." "The name-calling, accusations of criminal conduct, and pernicious character assassinations are offensive... [which] are indecorous and unprofessional." (Saks v. Parilla, Hubbard & Miltitzok (1998) 67 Cal.App.4th 565, 567, fn. 3.) " 'There can be no doubt of the power of an appellate court to strike from its files a brief or other document containing disrespectful, scandalous, or abusive language directed against the courts, officials, or litigants, or to take such other action as the circumstances may require.' " (Warner v. Warner (1955) 135 Cal.App.2d 302, 304.) We disregard the portions of Rolla's opening brief in which he denigrates opposing counsel or the parties to this lawsuit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.