Thuy Thanh Vo v. Mason

Full title: THUY THANH VO, Plaintiff and Respondent, v. JAMES MASON et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Sep 19, 2017

G054179 (Cal. Ct. App. Sep. 19, 2017)

Opinion

G054179

09-19-2017

THUY THANH VO, Plaintiff and Respondent, v. JAMES MASON et al., Defendants and Appellants.

Law Offices of Charles M. Farano and Charles M. Farano for Defendants and Appellants. KLT Legal, K. Luan Tran for Plaintiff and Respondent.

O'LEARY, P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00859365) OPINION Appeal from an order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed. Law Offices of Charles M. Farano and Charles M. Farano for Defendants and Appellants. KLT Legal, K. Luan Tran for Plaintiff and Respondent.

James Mason, James Phan, and Charles M. Farano (collectively referred to as Mason unless the context requires otherwise) appeal from an order denying his special motion to strike Thuy Thanh Vo's complaint as a strategic lawsuit against public participation (special motion to strike) (Code Civ. Proc., § 425.16).¹ Mason argues the trial court erred by denying the special motion to strike because the conduct arose from the right of petition and Vo did not establish a probability of prevailing on her state constitutional invasion of privacy cause of action. We disagree and affirm the order.

1 Code of Civil Procedure section 425.16 (section 425.16) authorizes a special motion to strike a Strategic Lawsuit Against Public Participation (SLAPP) action. Section 425.16 is referred to as the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.)

FACTS

Previous Lawsuits

In 2011, Mason filed a complaint to enjoin Vo from using a barn on her property, 7932 and 7942 14th Street in the City of Westminster (the Property), as a Buddhist temple (Temple) without first obtaining a conditional use permit (CUP); Mason owned property across the street. In her declaration, Vo denied using or intending to use her Property as a Temple. In June 2013, Judge Craig L. Griffin denied the request for a preliminary injunction without prejudice, and Mason dismissed his case (Mason v. Tu Quang Buddhist Center, Inc. (Super. Ct. Orange County, 2011, No. 30-2011-00511904)). Mason employed a private investigator, Patrick Goodrich, to monitor the Property.

A few months later, Goodrich provided videotapes of the Property's exterior and reports to Mason's attorney, Farano. Based on heavy foot traffic, Farano suspected Vo was using the Property as a Temple and made a formal discovery request to inspect the Property.

In early 2014, Farano met with Mason, Goodrich, and Phan, a licensed private investigator. Farano instructed Phan to approach and inspect the Property's interior. Phan first went to the Property in March 2014 and attended the Temple approximately 60 times over the following months.

In November 2015, Mason filed a complaint for nuisance and receivership against Vo, and five months later filed a motion to enjoin Vo from using the Property as a Temple without first obtaining a CUP (Mason v. Tu Quang Buddhist Center, Inc. (Super. Ct. Orange County, 2015, No. 30-2015-00818393-CU-OR-CJC)).

Underlying Lawsuit

In June 2016, Vo filed a complaint against Mason, Phan,² Goodrich, and Farano for invasion of privacy (Cal. Const., art. I, § 1). The complaint alleged Mason, Goodrich, and Farano conspired to encourage Phan to access the Property through subterfuge and record intimate conversations with Vo and photograph sacred moments. Vo alleged she had a reasonable expectation of privacy in her property and their conduct violated her right to privacy.

2 Vo referred to Phan as Pham.

Special Motion to Strike

Mason filed a special motion to strike Vo's complaint, which was supported by Farano's and Phan's declarations. Vo filed an opposition and a declaration. Mason filed a reply to the opposition, which was supported by Phan's declaration. In a minute order, the trial court denied Mason's special motion to strike without explanation.³ There was no reporter present at the hearing on the motion.

3 Goodrich's special motion to strike portions of the complaint was taken off calendar. --------

DISCUSSION

Section 425.16

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 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." Section 425.16 is to be "construed broadly."

Consideration of a section 425.16 motion anticipates 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. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) 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." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)

"'Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley).)

Arising From

"[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) . . . .' [Citations.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) In meeting its burden "[d]efendant need only make a prima facie showing that plaintiff's complaint 'arises from' defendant's constitutionally-protected free speech or petition[ing] activity." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 7:991, pp. 7(II)-54; see Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458.)

As used in section 425.16, 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' includes: (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).)

Here, Vo alleged Farano, an attorney, Mason, an attorney, Goodrich, a private investigator, and Phan, a private investigator, "assisted and encouraged each other and/or conspired to" invade her privacy by recording private conversations and photographing intimate moments. In his declaration, Farano explained all his conduct, and Phan's conduct as directed by Farano, was in connection with Mason's prior and future lawsuits concerning whether Vo was operating her Property as a Temple without first obtaining a CUP. Farano admitted he instructed Phan to approach the Property. However, he also told Phan not to lie and enter only public areas. In his declaration, Phan stated Mason and Farano told him about the prior lawsuits and that they intended to file another lawsuit. Phan explained they told him not to lie or ask any personal questions and enter only public areas. Phan stated he attended services at the Property approximately 60 times and Vo asked him to photograph services.

We conclude Farano's conduct of investigating the Property and directing Phan to investigate the Property was done in anticipation of Mason's litigation. The anti-SLAPP protection for petitioning activities applies to the filing of lawsuits and broadly to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. (Kolar v. Donahue McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) In fact, the anti-SLAPP law protected a law firm conducting an investigation in anticipation of filing a complaint with the Attorney General. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) Mason's, Phan's, and Farano's investigation into whether Vo was operating the Property as a Temple without a CUP was in anticipation of Mason's right to petition the court.

Contreras v. Dowling (2016) 4 Cal.App.5th 774 (Contreras), a case decided shortly before the parties filed their briefs here, but which neither party discusses, is instructive as to Farano. In Contreras, the sub-rentee sued the landlord, property manager, sub-rentor, and the attorney representing the landlords for inter alia tenant harassment. The operative complaint alleged the attorney aided and abetted the property manager in unlawfully entering the apartment. (Id. at pp. 780-782.) The Contreras court explained the attorney's communications with both opposing counsel and his clients were clearly protected activity. (Id. at p. 788.) Responding to plaintiff's claim she sought to hold the attorney liable as a coconspirator in his clients' unlawful acts, the court stated its focus was not on the labels of the causes of action but the attorney's "actual activities." (Id. at p. 790.) The court concluded, "[The attorney's] only demonstrated connections to the allegedly wrongful conduct of his clients are the actions he took in his role as their attorney." (Id. at p. 791.)

Here, the complaint alleged Farano and Mason, assisted, encouraged, and conspired with Phan to unlawfully invade Vo's privacy. The complaint does not provide much more detail than that. Similar to Contreras, Farano's conduct of advising Mason and employing Phan to investigate the Property were done in connection with his role of Mason's attorney and petitioning the court. Thus, Mason's, Farano's, and Phan's activity was in furtherance of his right to petition the court pursuant to section 425.16, subdivision (e)(4). Thus, we must determine whether Vo demonstrated a probability of prevailing. We conclude she did.

Probability of Prevailing

To establish a probability of prevailing on one or more of her causes of action, Vo was required to make a prima facie showing of facts that would, if proved at trial, support a judgment in her favor. (§ 425.16, subd. (b); Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [complaint must be legally sufficient and supported by sufficient prima facie facts].) "'[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.' [Citation.]" (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 330.)

Mason disputes only that Vo's complaint was legally sufficient because Civil Code section 47, subdivision (b)'s litigation privilege applies. In fact in his reply brief, he states, "Appellants accept the premise that the Respondent adequately pleaded a common law violation of a cause of action [for] invasion of privacy."

The litigation privilege of Civil Code section 47, subdivision (b), applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other authorized participants; (3) to achieve the litigation's objects; and (4) that have some connection or logical relationship to the action. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955 (Jacob B.).) The privilege applies to "statements made in the courtroom" and "prelitigation communications made in preparation for anticipated litigation." (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 120-121 (Kerner).)

In concluding the litigation privilege bars a constitutional privacy cause of action, the Jacob B. court stated the following: "[T]he privilege protects only against communicative acts and not against noncommunicative acts. [Citation.] 'Because the litigation privilege protects only publications and communications, a "threshold issue in determining the applicability" of the privilege is whether the defendant's conduct was communicative or noncommunicative.' [Citations.] However, 'if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct . . . . Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.' [Citation.]" (Jacob B., supra, 40 Cal.4th at pp. 956-957, italics added.) The threshold issue of whether Mason's, Phan's, and Farano's conduct was communicative or noncommunicative is best illustrated by a few cases from our Supreme Court.

In Ribas v. Clark (1985) 38 Cal.3d 355, 364-365 (Ribas), the court held the litigation privilege applied to testimony, which was communicative, but not to alleged earlier illegal eavesdropping, which was noncommunicative against common law and statutory privacy claims. In Kimmel v. Goland (1990) 51 Cal.3d 202, 205, 209 (Kimmel), the court similarly concluded litigation privilege did not apply to unlawful recording of telephone conversations made in anticipation of litigation because the plaintiffs alleged they suffered common law and statutory privacy violations from the recording of confidential phone conversations, "not from any 'publication' or 'broadcast' of the information contained in these conversations."

Our Supreme Court held differently in two later cases. In Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 (Rusheen), our Supreme Court concluded the litigation privilege applied to actions taken to collect a judgment, such as obtaining a writ of execution and levying on a judgment debtor's property against an abuse of process claim. Similarly, in Jacob B., supra, 40 Cal.4th at pages 956 and 961, the court concluded a witness program's letter to the family court describing a molestation "fits squarely within" the litigation privilege because it "'constituted a "communication"'" in the context of a judicial proceeding against a constitutional privacy claim.

Contrary to Mason's contention otherwise, the conduct at issue here—entering Vo's residence through subterfuge and false pretenses to record intimate conversations with Vo and photograph sacred moments—is more similar to the type of nonprivileged conduct at issue in Ribas and Kimmel than the type of conduct that fell under the litigation privilege in Rusheen and Jacob B. Wrongful conduct is not protected simply because it relates to prelitigation evidence-gathering activity. (Kimmel, supra, 51 Cal.3d at p. 212 [privacy claim accrued moment of violation and contention communication made in anticipation of litigation irrelevant.) Because the gravamen of this action was decidedly noncommunicative, it was not protected by the litigation privilege. Vo's case was not based on a communication by Mason, Farano, and Phan or their activities' effects on any judicial proceedings, and she did not sue them for seeking injunctive relief to force her to cease operating a Temple. Rather, any communicative acts in this case were background to the noncommunicative incidents of 2014 and 2015, entry into the Property and recording of conversations and photographing moments that occurred prior to commencement of November 2015 judicial proceeding. Because Vo demonstrated independent, noncommunicative wrongful conduct was the gravamen of her action, the litigation privilege did not apply. (Rusheen, supra, 37 Cal.4th at p. 1065.)

Kerner, supra, 206 Cal.App.4th at pages 121-122, is inapposite. Although the Kerner court held the hiring of a private investigator to investigate domestic violence and report to the police and city attorney for prosecution was protected by the litigation privilege, the record there is silent on the private investigators' conduct and methods. Here, the record speaks volumes. Therefore, the litigation privilege is inapplicable. Merits

Despite Mason's concession Vo's complaint pleaded a prima facie case for a state invasion of privacy claim, we briefly address this issue. Although Phan's declaration tended to establish he was open and honest about who he was and only entered areas open to the public, Vo's declaration paints a different portrait. (Flatley, supra, 39 Cal.4th at p. 326 [we accept as true evidence favorable to plaintiff and evaluate defendant's evidence to determine if it has defeated plaintiff's evidence as a matter of law].)

Here, Vo had a legally protected privacy interest in her home. (Hill v. Colorado (2000) 530 U.S. 703, 716 [privacy right to be free in one's home from unwanted communication]; see Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 20-21.) She also had a reasonable expectation of privacy under the circumstances. Although Phan declared Vo received him into her Temple and said new members were welcome, Vo declared the Property is a locked private home not open to the public where she operated a weekly Buddhism study group upon invitation only. (Burwell v. Hobby Lobby Stores, Inc. (2014) ___ U.S. ___ [134 S.Ct. 2751, 2759-2760] [First Amendment guarantees all persons the free exercise of religion].)

Mason's, Farano's, and Phan's conduct constituted a serious invasion of privacy. Mason and Farano hired Phan to investigate whether Vo operated a Temple on her Property. Phan declared that the first time he went to the Property, Vo welcomed him in, asked that he and his friends become members, and asked that he photograph the ceremonies. He added that he gave his true name and never lied about his occupation when asked. He said Vo never asked him about his occupation. Phan stated he "never said anything about why [he] was there nor did [he] tell any lies about why [he] was there." He claimed he never secretly recorded any conversations. Vo, however, declared Phan did not give her his real name and told her that he wanted to enter the Property to study Buddhism and pray. She added that he never told her that he was a private investigator. She denied ever asking Phan to photograph the ceremonies. Based on this evidence, which Mason concedes establishes a prima facie case of invasion of privacy, we conclude Mason's, Farano's, and Phan's conduct constituted a serious invasion of privacy. In other words, Mason's evidence did not defeat Vo's as a matter of law. Thus, Vo established a probability of prevailing on her state constitutional invasion of privacy cause of action.

DISPOSITION

The order is affirmed. Respondent is awarded her costs on appeal.

O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.