Aminpour v. Fulkerson CA4/1 ( 2022 )

Filed 2/23/22 Aminpour v. Fulkerson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ASHKAN KING AMINPOUR et al., D078288
Plaintiffs, Cross-defendants and
Respondents,
(Super. Ct. No. 37-2018-
v. 00054834-CU-BT-CTL)
DAN FULKERSON et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Joel
R. Wohlfeil, Judge. Affirmed.
Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit, and Caitlin M.
Jones for Defendants and Appellants.
Higgs Fletcher & Mack, Paul Pfingst, Susan M. Hack; Shoecraft
Burton, Robert D. Shoecraft; Khashayar Law Group, Daryoosh Khashayar,
and Taylor Marks for Plaintiffs, Cross-defendants and Respondents.
Dan Fulkerson and Paul Batta appeal an order denying their motion
under Code of Civil Procedure section 425.161 to strike claims brought
against them by Ashkan “King” Aminpour and Larking, Inc. for conspiring
with Aminpour’s former client and business partner, Lara D. Calhoun, to
defraud Aminpour. Aminpour initially sued Calhoun after she threatened to
report him to authorities if he did not pay her $450,000. After discovery in
Aminpour’s case uncovered phone conversations between Calhoun and
Fulkerson and Batta, both attorneys formerly employed by Aminpour,
Aminpour successfully moved to amend the complaint to add conspiracy and
other claims against Fulkerson and Batta. In response, Fulkerson and Batta
filed an anti-SLAPP motion. The trial court denied the motion, finding the
challenged claims did not arise from protected activity. As we shall explain,
we agree with the trial court and affirm its order.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2013, Calhoun was injured in a serious car accident
involving an 18-wheeler truck. In May 2015, Calhoun hired Aminpour and
his law firm, Aminpour & Associates, to represent her in a personal injury
lawsuit against the trucking company. According to Aminpour, he assigned
Calhoun’s case to Fulkerson and Batta. The firm filed a complaint on behalf
of Calhoun on January 26, 2016, after the two-year statute of limitations on
her claims had passed. As a result, the case was dismissed with prejudice.
In this litigation, Fulkerson and Batta deny that Aminpour assigned
them to work on Calhoun’s case. However, in his declaration in support of
the anti-SLAPP motion at issue here, Batta explained that while the firm did
1 Further statutory references are to the Code of Civil Procedure unless
otherwise indicated. 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.)
2
not have a “formal system in place for managing the statute of limitation[s]”
he “generally checked the statutes of limitation on the firm’s cases.”
Therefore, Batta states, he “took responsibility for Calhoun’s claim expiring.”
At some point after learning Calhoun’s claims had been mishandled by
his firm, Aminpour arranged a meeting with Calhoun. Aminpour, Calhoun,
Fulkerson, Batta, and another attorney employed by the firm, Jeffrey Bodily,
were present. Aminpour told Calhoun the statute of limitations on her case
had expired before the claim was filed, and that he would find a malpractice
attorney to represent her in a case against the firm or pay her directly the
amount she would have recovered had her personal injury case been
successful.
On April 16, 2016, Aminpour terminated Fulkerson and Batta from his
firm. According to Aminpour, he fired the attorneys because of their
negligence in handling Calhoun’s case. Fulkerson disputes he was fired by
Aminpour, stating he ended his employment with Aminpour after he
discovered “settlement checks showing that medical providers had not been
paid on many closed cases.” Fulkerson alleges that when he confronted
Aminpour about this discovery, Aminpour acknowledged he had insufficient
funds in his client trust account to pay the medical providers. Fulkerson
believed Aminpour had been using client settlement funds to pay for his own
“lavish lifestyle.” Fulkerson also alleges that Aminpour threatened to kill
him if Fulkerson reported him to the State Bar.
Calhoun opted to pursue a malpractice case against Aminpour.
Calhoun believed she initially retained attorney Robert Hamparyan, with
Aminpour’s assistance, to represent her. At some point, Hamparyan was
fired and Calhoun, again with Aminpour’s assistance, retained Alfred Atallah
3
to represent her in the malpractice action. Atallah was a friend of
Aminpour’s and had previously represented Aminpour.
Before Calhoun’s malpractice claim arose, Aminpour and Calhoun
developed a friendship. As a result of this relationship, in May 2016,
Calhoun told Aminpour about a new product she was developing—disposable
sanitary covers for public seating areas. Aminpour was interested in the idea
and proposed they partner to bring the product to market. Aminpour would
contribute capital and Calhoun would undertake all of the work to bring the
product to fruition, with each taking 50% ownership of the new business.
Aminpour contributed $110,000 to the formation of the company and the
business was incorporated in September 2016 with the assistance of attorney
Richard D. Clarke.
The parties dispute whether in the formation of the new business
Aminpour complied with the California Rules of Professional Conduct
governing business relationships between an attorney and a client or former
client. In his declaration in support of his opposition to the anti-SLAPP
motion, Aminpour stated that he advised Calhoun to seek counsel before they
incorporated the new company, Larking, Inc., and that he advised her in
writing of the disclosures required by the Rules. Aminpour also stated
Clarke reviewed the corporate formation documents in detail with Calhoun
before they were signed. Calhoun’s verified cross-complaint against
Aminpour, on the other hand, states that he failed to obtain informed written
consent from her and otherwise did not comply with the Rules.
The malpractice action was settled in March 2017 and Calhoun and
Aminpour entered into a release agreement providing Calhoun with
$750,000, the limit of Aminpour’s malpractice insurance policy. Calhoun’s
attorney, Atallah, was paid 40% of the settlement proceeds. Calhoun
4
testified in her deposition she received $280,000. From that amount,
Calhoun gave Aminpour a check for $136,964.49. The check’s memo stated,
“King [i.e., Aminpour] to disburse to me.” A note that accompanied the check,
signed by both Aminpour and Calhoun, stated “Lara giving $136,964.49 to
King [i.e., Aminpour] to hold & pay $5,000 per month auto payments on Ford
Explorer till balance is zero. No interest.”
At some point thereafter, the relationship between Calhoun and
Aminpour strained. During discovery at her deposition in the underlying
litigation, Calhoun stated that she did not know that Atallah would receive
40% of the proceeds from the malpractice settlement. She became suspicious
of Aminpour and began researching the ethical obligations of attorneys. She
also reached out to several attorneys to discuss the situation. Calhoun first
contacted attorney Ray Ryan to discuss her concerns about Aminpour’s
referral to Atallah to handle her malpractice action. Calhoun also contacted
Hamparyan, the attorney Calhoun previously hired and fired in connection
with the malpractice lawsuit.
In February 2018, Calhoun spoke with Fulkerson about her potential
claims against Aminpour relative to the malpractice action and the propriety
of their business relationship. Later that year, Calhoun also contacted Batta,
Bodily, and another attorney, Deborah Wolfe, to discuss Aminpour’s actions.
In June 2018, Calhoun held a meeting at Wolfe’s office with Wolfe,
Fulkerson, Batta, and Bodily. Bodily described the meeting as “a strategy
conference among Calhoun’s various legal advisers regarding any legal rights
she might have had against Aminpour.”
Batta similarly described the meeting, stating “Calhoun sought the
advice of the attorneys present on a number of legal issues pertaining to her
history with Aminpour—from the way her case was handled at [Aminpour &
5
Associates] to the business she founded with Aminpour.” Batta further
stated that “[t]he attorneys present at the meeting provided Calhoun with
counsel and strategy in the context of privileged and confidential
communications.” Fulkerson stated the meeting’s topic was Calhoun’s
“potential remedies against Aminpour” and that the meeting was a
continuation of privileged conversations he had with Calhoun about her legal
concerns with Aminpour’s conduct. In the months after, Calhoun continued
to speak with Fulkerson and Batta on the phone periodically. Both attorneys
characterized the phone conversations as legal consultations.
In October 2018, Calhoun arranged a lunch meeting by text message
with Aminpour. The messages showed a friendly relationship, and gave
Aminpour no indication that Calhoun was upset with him. Sensing
something was amiss, however, Aminpour brought an employee with him to
the restaurant where the meeting was held. When Aminpour and his
employee arrived, Calhoun was there with her mother and adult daughter.
According to Aminpour, the three women were visibly upset. Once they were
seated, Calhoun’s daughter told Aminpour he had two options, either sign a
document she passed to Aminpour relinquishing ownership of Larking, Inc.,
or Calhoun would report Aminpour to the authorities and he would lose his
law practice and face incarceration.
In his declaration in opposition to the anti-SLAPP motion, Aminpour
stated that Calhoun then told him she had spoken to people who worked for
Aminpour in the past, who told her about Aminpour’s wrongdoing. Aminpour
also alleged Calhoun said if he didn’t sign the document, she would
immediately contact law enforcement, the State Bar, and the media.
According to Aminpour, Calhoun’s mother added that if Aminpour paid
Calhoun $500,000 they would guarantee Aminpour would not go to jail.
6
Calhoun clarified she sought $444,000 and showed Aminpour a paper
showing what she believed she was owed for Larking, Inc. Aminpour refused
to sign the document and left.
The following day, Calhoun sent an email to Aminpour repeating her
demand that Aminpour sign the document relinquishing his ownership of
Larking, Inc., or be reported to the State Bar, and describing in detail the
wrongdoing she alleged Aminpour perpetrated. The email asserted
Aminpour had improperly used client funds to lend money to other clients,
taken improper business tax deductions, violated his professional ethical
obligations by entering into business with Calhoun and with respect to the
malpractice action, and defrauded Calhoun by placing his brother on the
Larking, Inc. board. The email also detailed “lies” Aminpour told Calhoun
and acts of sexual harassment.2
On October 29, 2018, Aminpour brought the underlying civil action
against Calhoun, her mother, and her daughter alleging various causes of
action based on what Aminpour characterized as extortion.3 On December 3,
2018, Calhoun, representing herself, filed a cross-complaint alleging breach
of fiduciary duty, fraud, negligence, breach of contract, intentional and
negligent interference with prospective economic advantage, and other
2 Calhoun did report Aminpour to the California State Bar, which
investigated the alleged professional misconduct. The agency closed the
matter in 2019 after determining it did “not warrant further action.”
3 Aminpour also reported Calhoun’s conduct to law enforcement, who
eventually brought criminal extortion charges against Calhoun. Aminpour
asks this court to take judicial notice of documents in the criminal case that
were not before the trial court. We deny the motion on the grounds the
documents are not relevant to this appeal. Aminpour also asks this court to
take judicial notice of a recently published Court of Appeal opinion. This
request is denied as unnecessary.
7
claims. In discovery, Aminpour obtained Calhoun’s phone records, which
exposed her communications with Fulkerson and Batta.
At her deposition, Calhoun stated she contacted Fulkerson, Batta, and
the other attorneys she met with in June 2018. Calhoun, who was by this
point represented by counsel, did not answer questions about the subject of
her communications with the attorneys based on her counsel’s instruction
that the communications were protected by the attorney-client privilege.
Thereafter, Aminpour served Fulkerson and Batta with subpoenas for their
depositions. Fulkerson and Batta objected, asserting among other things
that the notices implicated attorney-client privileged information and
matters that were subject to the separation agreement between the attorneys
and Aminpour & Associates.4
In June 2020, Aminpour successfully moved to amend his complaint to
add civil conspiracy, civil extortion, fraud, intentional interference with
prospective economic advantage, and intentional interference with
contractual relations claims against Fulkerson and Batta. The complaint
alleged Fulkerson and Batta were disgruntled former employees of
Aminpour’s who were out for revenge against him, and who had conspired
with Calhoun to extort and defraud him.
In response to the First Amended Complaint, Fulkerson and Batta filed
the anti-SLAPP motion, asserting the claims against them arose from the
protected activity of providing legal advice to Calhoun and further that
Aminpour and Larking, Inc. could not establish a probability of prevailing on
their claims against Fulkerson and Batta. In support, Fulkerson and Batta
filed their own declarations, the declarations of Bodily and Calhoun, and
4 Fulkerson also objected on the grounds that Aminpour had made death
threats against him.
8
documentary evidence including excerpts from Calhoun’s deposition and
other discovery responses, Calhoun’s malpractice settlement agreement,
Fulkerson’s and Batta’s separation agreements with Aminpour & Associates,
and Aminpour’s deposition subpoenas to both attorneys.
Aminpour opposed the motion, arguing Fulkerson and Batta had not
met their burden to show his claims arose from protected activity because
there was no evidence that at the time the attorneys communicated with
Calhoun she was seriously contemplating litigation. Aminpour also argued
he had shown a probability of prevailing on his claims, pointing primarily to
the timing of Fulkerson’s and Batta’s communications with Calhoun,
particularly the fact that Fulkerson had an approximately 20 minute phone
call with Calhoun shortly before she sent the email on October 18, 2018
reiterating her demand to Aminpour. Aminpour argued that the motion
should be denied because Fulkerson’s and Batta’s conduct was illegal, and
thus not protected under section 425.16.
In reply, Fulkerson and Batta asserted there was no evidence they had
engaged in any illegal activity and the evidence showed only protected
attorney-client communications. In addition, they argued that Aminpour had
failed to address legal authority establishing that protected activity under
the anti-SLAPP statute includes the right to counsel others about their rights
to petition the courts, even if litigation is not “imminent.”
Thereafter, the trial court issued a tentative order denying the motion.
The tentative decision noted that “[c]ommunications that are preparatory to
or in anticipation of the bringing of an action or other official proceeding are
within the scope of protected conduct under … section 425.16” and that
“[c]onduct ‘preparatory to’ litigation can include communications in
connection with counseling or encouraging others to sue.” The court,
9
however, agreed with Aminpour that Fulkerson and Batta were required to
show that at the time of Calhoun’s communications with these attorney
defendants, future litigation “was actually under serious consideration.” The
court wrote that because none of the declarations submitted in opposition to
the motion showed there was a discussion of anticipated litigation, Fulkerson
and Batta had not made a prima facie showing that Aminpour’s claims
against them arose from protected activity.
The tentative order declined to reach the second prong of the anti-
SLAPP analysis, but did not conclude that Aminpour had not presented any
evidence that Fulkerson and Batta had committed any overt act in
furtherance of the alleged extortion scheme or that their conduct was illegal
as a matter of law, and thus, the court stated, this was not a basis to deny the
motion under the first prong. After issuing the tentative, the parties orally
argued the motion and the court took the matter under submission.
The court issued an order confirming its tentative decision, and adding
commentary. The court’s final order stated that Fulkerson’s and Batta’s
declarations did “not disavow participating” in an extortionate scheme with
Calhoun or “expressly state[] that in their discussions with Calhoun future
litigation was seriously considered or contemplated. In fact, Calhoun had
already settled her legal malpractice case against Aminpour. Even assuming
Calhoun consulted with Fulkerson and Batta regarding potential legal
claims, this does not necessarily immunize them from the possibility that
they also participated with Calhoun in a separate conspiracy to commit
extortion. The allegations within the First Amended Complaint do not, in
isolation, disclose protected conduct. In addition, the evidence presented via
this motion is in conflict and does not necessarily weigh in favor of the
existence of protected conduct.” The court concluded the order by stating that
10
Fulkerson and Batta “have not met their burden of demonstrating that the
challenged cause of action is one arising from protected activity.”
DISCUSSION
As discussed, Fulkerson and Batta challenge the trial court’s conclusion
that Aminpour’s claims against them do not arise from protected activity.
Further, they argue that Aminpour and Larking, Inc. (collectively Aminpour)
did not meet their burden to show the claims had a probability of success on
their merits.
I
Legal Standards
Section 425.16 sets a procedure for striking “lawsuits that are ‘brought
primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.’ ” (Kibler v. Northern Inyo
County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.) Under
section 425.16, the “trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.”
(Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
Section 425.16 provides in pertinent part: “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.” (§ 425.16, subd. (b)(1).) Resolution of an anti-SLAPP motion “thus
involves two steps. ‘First, the court decides whether the defendant has made
a threshold showing that the challenged cause of action is one “arising from”
protected activity. [Citation.] If the court finds such a showing has been
11
made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.’ ” (Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 819‒820.) “ ‘Only a cause of action that satisfies both
prongs of the anti-SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to being
stricken under the statute.’ ” (Id. at p. 820.)
“An ‘ “act in furtherance of a person’s right of petition or free
speech …” ’ includes any written or oral statement made before a legislative,
executive, or judicial body, or any other official proceeding authorized by law,
or in connection with an issue under consideration by such body or in such
proceeding. (§ 425.16, subd. (e)(1) & (2).) The moving party need not
separately demonstrate that such an oral or written statement concerns an
issue of public significance.” (Midland Pacific Building Corp. v. King (2007)
157 Cal.App.4th 264, 271.) The statute is construed broadly to maximize
protection for acts in furtherance of the right to petition the courts. (§ 425.16,
subd. (a) [“The Legislature finds and declares that it is in the public interest
to encourage continued participation in matters of public significance, and
that this participation should not be chilled through abuse of the judicial
process. To this end, this section shall be construed broadly.”].)
“A defendant’s burden on the first prong is not an onerous one. A
defendant need only make a prima facie showing that plaintiff’s claims arise
from the defendant’s constitutionally protected free speech or petition rights.
(See Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449, 456.) ‘ “The Legislature did not intend that in order to
invoke the special motion to strike the defendant must first establish [his or]
her actions are constitutionally protected under the First Amendment as a
matter of law.” [Citation.] “Instead, under the statutory scheme, a court
12
must generally presume the validity of the claimed constitutional right in the
first step of the anti-SLAPP analysis, and then permit the parties to address
the issue in the second step of the analysis, if necessary. [Citation.]
Otherwise, the second step would become superfluous in almost every case,
resulting in an improper shifting of the burdens.” ’ ” (Optional Capital, Inc. v.
Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112, italics
omitted; see also RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020)
56 Cal.App.5th 413, 426 (RGC Gaslamp) [“Any claimed illegitimacy of the
defendant’s acts is an issue that must be raised and supported by the plaintiff
in discharging its burden on prong two. [Citations.] ‘To conclude otherwise
would effectively shift to the defendant a [merits] burden statutorily assigned
to the plaintiff.’ ”].)
For purposes of both prongs of an anti-SLAPP motion, “[t]he court
considers the pleadings and evidence submitted by both sides, but does not
weigh credibility or compare the weight of the evidence. Rather, the court’s
responsibility is to accept as true the evidence favorable to the plaintiff….”
(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
With respect to the second prong, “in order to establish the requisite
probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have
‘ “stated and substantiated a legally sufficient claim.” ’ [Citations.] ‘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.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89.)
“Review of an order granting or denying a motion to strike under
section 425.16 is de novo. [Citation.] [Like the trial court, we] consider ‘the
pleadings, and supporting and opposing affidavits … upon which the liability
13
or defense is based.’ (§ 425.16, subd. (b)(2).)” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Our de novo review “includes
whether the anti-SLAPP statute applies to the challenged claim.” (Thomas v.
Quintero (2005) 126 Cal.App.4th 635, 645.) “[W]e apply our independent
judgment to determine whether” the claim arises from acts done in
furtherance of the defendants’ “right of petition or free speech in connection
with a public issue.” (Ibid.) “Assuming these two conditions are satisfied, we
must then independently determine, from our review of the record as a whole,
whether [the plaintiffs have] established a reasonable probability that [they
will] prevail on [their] claims.” (Ibid.)
II
Analysis
As discussed, Fulkerson and Batta take issue with the court’s
determination that the claims against them do not arise from protected
activity. Specifically, they argue the only actionable conduct alleged by
Aminpour are communications that Fulkerson and Batta had with Calhoun
that were preparatory to or in anticipation of Calhoun bringing a lawsuit
against Aminpour. Thus, Fulkerson and Batta contend, they made a prima
facie showing the conduct is protected.
A
The question whether a cause of action arises from protected activity
concerns “the strength of the connection between [that] activity and the
lawsuit ….” (Smith v. Adventist Health System/West (2010) 190 Cal.App.4th
40, 51.) To be afforded protection, “ ‘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
14
act in furtherance of the defendant’s right of petition or free speech.
[Citations.]’ ” (Ibid.; see also Navellier v. Sletten, supra, 29 Cal.4th at p. 92
[“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s
cause of action but, rather, the defendant’s activity that gives rise to his or
her asserted liability—and whether that activity constitutes protected speech
or petitioning.”].) “ ‘[T]he mere fact that an action was filed after protected
activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute.’ ” (Episcopal Church Cases (2009) 45
Cal.4th 467, 477.)
“ ‘Under the plain language of section 425.16, subdivision (e)(1) and (2),
as well as the case law interpreting those provisions, all communicative acts
performed by attorneys as part of their representation of a client in a judicial
proceeding or other petitioning context are per se protected as petitioning
activity by the anti-SLAPP statute.’ ” (Contreras v. Dowling (2016) 5
Cal.App.5th 394, 408–409.) Further, “ ‘[j]ust as communications 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) [citation], … such statements are equally entitled to the
15
benefits of section 425.16.’ ”5 (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115.)
Critically here, and as the parties agree, to be protected the
communications must relate “to litigation that is contemplated in good faith
and under serious consideration.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28,
36 (Rohde).) “[T]he privilege ‘arises at the point in time when litigation is no
longer a mere possibility, but has instead ripened into a proposed proceeding
… as a means of obtaining access to the courts for the purpose of resolving
the dispute.’ ” (Id. at p. 36.) The imminency of the litigation is not crucial,
rather it is the remoteness of the petitioning activity that matters. (Ibid.)
“The requirement to show that litigation is seriously contemplated ensures
that prelitigation communications are actually connected to litigation and
that their protection therefore furthers the anti-SLAPP statute’s purpose of
early dismissal of meritless lawsuits that arise from protected petitioning
activity.” (Bel Air, supra, 20 Cal.App.5th at p. 941.)
“Thus, for example, when a cause of action arises from conduct that is a
‘necessary prerequisite’ to litigation, but will lead to litigation only if
negotiations fail or contractual commitments are not honored, future
litigation is merely theoretical rather than anticipated and the conduct is
therefore not protected prelitigation activity.” (Bel Air, supra, 20 Cal.App.5th
at p. 941; see, e.g., Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15
5 “The litigation privilege established by Civil Code section 47,
subdivision (b) and the anti-SLAPP procedure established by Code of Civil
Procedure section 425.16 are substantively different and ‘serve quite different
purposes.’ [Citation.] Nevertheless, the two statutes are related, and courts
‘have looked to the litigation privilege as an aid in construing the scope of
section 425.16, subdivision (e)(1) and (2) with respect to the first step of the
two-step anti-SLAPP inquiry.’ ” (Bel Air Internet, LLC v. Morales (2018) 20
Cal.App.5th 924, 941, fn. 6 (Bel Air).)
16
Cal.App.5th 686, 703–704 [letter commencing termination of a distributor
agreement was not preparatory to statutorily required arbitration, as the
statute permitted resort to arbitration only if good-faith negotiations failed];
People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 826–
827 [insurance claims are often paid in the ordinary course of business and
are therefore not protected prelitigation activity unless the circumstances
show that a claim was merely a necessary prerequisite to expected
litigation].) Further, “the privileged communication must have some relation
to an imminent lawsuit or judicial proceeding which is actually contemplated
seriously and in good faith to resolve a dispute, and not simply as a tactical
ploy to negotiate a bargain.” (Edwards v. Centex Real Estate Corp. (1997) 53
Cal.App.4th 15, 36; see also Bel Air, at p. 941 [“[P]ayment demands with
vague references to future ‘ “legal remedies” ’ may not demonstrate that
litigation was actually under serious consideration.”].)
B
The crucial question here is whether at the time of the conduct
Aminpour alleges is actionable, Calhoun’s claims against him were more than
a possibility, and instead had “ripened into a proposed proceeding” to resolve
her dispute with him, and the communications with the defendants were in
furtherance of that proceeding. (Rohde, supra, 154 Cal.App.4th at p. 36.) We
agree with the trial court that Fulkerson and Batta failed to make this
showing.
The trial court found “[t]he declarations of Fulkerson, Batta and Jeff
Bodily establish that Fulkerson, Batta, Calhoun (and others) attended a
June 2018 meeting in which Calhoun sought advice regarding legal issues
and legal strategies,” and that “Calhoun also communicated with Fulkerson
and Batta on other occasions seeking legal advice.” The court then noted that
17
“none of [the] declarations refer to any discussion of anticipated litigation”
and that “Fulkerson and Batta do not represent Calhoun, except in the
context of a recent and unrelated personal injury action.” The court
concluded that “[t]his evidence does not support the serious contemplation of
litigation during these meetings.”
In the operative complaint, Aminpour alleges generally that Fulkerson
and Batta conspired with and aided and abetted Calhoun in extorting and
defrauding him, and that they did so in order to harm Aminpour’s and
Larking, Inc.’s business. As explained in Aminpour’s evidentiary submission
in opposition to the motion to strike, the allegations are based on (1) cell
phone records showing Fulkerson and Batta communicated frequently with
Calhoun, including just prior to her sending the October 18, 2018 email;
(2) Calhoun using information in the extortion email that Aminpour alleges
only Fulkerson or Batta could have provided to her; (3) the fact that Calhoun
initially denied knowing Fulkerson or Batta in her responses to Aminpour’s
requests for admissions, then admitted knowing them in her deposition after
the phone records were discovered; and (4) an email from Fulkerson to Scott
Savary, who Aminpour describes as his “colleague,” in which Fulkerson tells
Savary he has “nothing to do with whatever is going on between [Aminpour]
and Mrs. Calhoun” and asks Savary to tell Aminpour to “keep our names [his
and Batta’s] out of his mouth, and we will do the same.” The only conduct
alleged by Aminpour that gives rise to his claims against Fulkerson and
Batta are their communications with Calhoun.
The evidentiary submissions made by Fulkerson and Batta in support
of their anti-SLAPP motion show that Calhoun was seeking legal advice from
them about her dealings with Aminpour. This evidence consists of
statements by Fulkerson, Batta, Bodily, and Calhoun. Specifically, Bodily
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described the meeting as “a strategy conference among Calhoun’s various
legal advisers regarding any legal rights she might have had against
Aminpour.” (Italics added.) Batta described the meeting as “Calhoun
[seeking] the advice of the attorneys present on a number of legal issues
pertaining to her history with Aminpour—from the way her case was handled
at [Aminpour & Associates] to the business she founded with Aminpour.”
Batta further stated that “[t]he attorneys present at the meeting provided
Calhoun with counsel and strategy in the context of privileged and
confidential communications.”
Fulkerson stated the meeting’s topic was Calhoun’s “potential remedies
against Aminpour” (italics added) and that the meeting was a continuation of
privileged conversations he had with Calhoun about her legal concerns with
Aminpour’s conduct. Fulkerson’s and Batta’s evidentiary submission about
their other phone communications with Calhoun likewise characterized the
conversations generally as legal consultations. Calhoun’s declaration states
that she “consulted with a number of attorneys as it related to potential
claims involving” Aminpour, including Fulkerson and Batta, and that she
“genuinely believed” she “had valid claims against” Aminpour. (Italics
added.) In support of the motion, Fulkerson and Batta also pointed to the
fact that Calhoun did eventually bring claims against Aminpour, first by way
of a complaint to the state bar and then in this case.
Fulkerson and Batta argue that this evidence shows Calhoun was
seeking advice in preparation to sue Aminpour, and thus the conduct is
protected. Although it is a close decision, made difficult because the content
of the communication is obscured by privilege, we disagree. It is significant
that of the various attorneys present at the June 2018 strategy session,
Aminpour sued only Batta and Fulkerson, who the evidence showed had
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repeated and continuing contact with Calhoun after the June meeting.
Indeed, the complaint seeks to make clear that their liability is not alleged to
be based on the offering of legal advice. In any event, as the trial court found,
the evidence shows only that Calhoun was investigating potential claims
against Aminpour. She, Fulkerson and Batta all state as much in the
declarations; none go so far as to indicate they were actually preparing to file
suit. As the trial court stated, the declarations do not “refer to any discussion
of anticipated litigation” and Calhoun did not file her counter-claims until
December 2018, after she was sued by Aminpour. Further, she never
retained Fulkerson and Batta (or any other attorney she consulted in June
2018) to represent her in any litigation against Aminpour. No evidence
shows that litigation was more than just a possibility when Calhoun was
communicating with the defendants.6
Rohde, supra, 154 Cal.App.4th 28, is a helpful comparison. There,
brother and sister, both represented by counsel at the relevant time, were
engaged in a dispute over the distribution of their deceased father’s assets.
(Id. at p. 31.) Brother’s attorney, Wolf, sent a demand letter to sister’s
attorney, Catanese, prompting Catanese to respond that a civil suit was
forthcoming. (Id. at p. 32.) This resulted in an agreement to sell certain
property and to hire a realtor to facilitate the sale. (Ibid.) Wolf and his client
6 Contrary to Fulkerson and Batta’s assertion, this is not an importation
of a merits inquiry into the first prong analysis as this court discussed in
RGC Gaslamp, supra, 56 Cal.App.5th 413. There, we cautioned that a
determination on the first prong that the filing of a mechanic’s lien was
invalid as a matter of law because it duplicated a prior filing constituted an
improper examination of the merits of the claim. (Id. at p. 426.) Here, the
court is tasked only with drawing a line to decide whether the defendants
have made a prima facie showing on the first prong that Aminpour’s claims
arise from protected petitioning activity.
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became suspicious the realtor was acting against the client’s interest in
concert with the sister, and left voicemail messages for the realtor asserting
the realtor and sister were conspiring to defraud the brother out of his
interest in the property. (Id. at p. 33.)
This prompted the sister to file defamation and slander claims against
Wolf. (Rohde, supra, 154 Cal.App.4th at p. 34.) Wolf then filed an anti-
SLAPP motion to strike the claims, which the trial court denied. (Ibid.) The
Court of Appeal reversed, concluding the voicemail messages were protected
activity because they were made in connection with litigation that was
already threatened by the brother and sister, both represented by counsel,
against each other. The court noted “the spectre of litigation loomed over all
communications between the parties” and the communications at issue were
“concerning the subject of the dispute” and anticipated additional litigation.
(Id. at p. 36.)
Importantly, the litigation between the siblings was not a mere
possibility, but was an actual proposed proceeding already threatened by
both parties. Here, unlike Rohde, there was no threatened litigation by
Calhoun at the time of the communications. According to Aminpour, he
thought his relationship with Calhoun was in good standing. While the
content of the communications is not available, there is no evidence
suggesting Fulkerson and Batta were assisting Calhoun with the preparation
of a specific case against Aminpour, and both now are clear that they are not
representing Calhoun in her litigation with Aminpour and never have.
In short, at least some of Calhoun’s communications with Fulkerson
and Batta appear to have occurred in the context of her seeking and receiving
legal advice, and so are protected by the attorney-client privilege. But any
impediments the privilege might create does not alter or lessen the burden
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that Fulkerson and Batta bear to demonstrate that Aminpour’s claims arise
out of protected petitioning activity. Here, they have failed to show that at
the time of the communications at issue, Calhoun had decided to pursue her
claims or that her investigation into Aminpour had “ripened into a proposed
proceeding,” a showing necessary to bring the conduct within the anti-
SLAPP’s statute’s protection. (Rohde, supra, 154 Cal.App.4th at p. 36.)
Rather, there was only the potential that litigation could possibly ensue,
distinguishing the present case from those cases where prelitigation conduct
is held to be protected petitioning activity (See Contreras v. Dowling, supra,
5 Cal.App.5th 394 [communicative acts by attorney representing clients in
pending or threatened litigation protected], Dove Audio, Inc. v. Rosenfeld,
Meyer & Susman (1996) 47 Cal.App.4th 777, 783 [investigative letter sent to
potential clients by attorney in preparation to file complaint on behalf of a
client with the Attorney General constitutes protected petitioning activity],
and RGC Gaslamp, supra, 56 Cal.App.5th at p. 426 [filing of mechanic’s lien
is protected petitioning activity because it is a necessary prerequisite to
foreclosure action]; cf. Mission Beverage Co. v. Pabst Brewing Co., LLC,
supra, 15 Cal.App.5th at p. 704 [letter cancelling beer distribution contract in
accordance with state law, which could trigger statutory arbitration but first
requires negotiation to resolve the dispute, not protected because the need for
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arbitration could be obviated].)7 Accordingly, the trial court did not err by
denying the motion and we do not reach the second prong of the anti-SLAPP
analysis.
DISPOSITION
The order is affirmed. Respondents to recover costs of appeal.
McCONNELL, P. J.
WE CONCUR:
DATO, J.
DO, J.
7 In support of their assertion that Calhoun’s communications “were
necessary for the furtherance of the right of petition,” and thus entitled to
protection, Fulkerson and Batta cite Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1068–1069. This case is not relevant to whether
prelitigation conduct constitutes petitioning activity for purposes of the anti-
SLAPP statute. Rather, in Tichinin, the plaintiff City conceded the
defendant’s challenge of the City’s adoption of a resolution admonishing him
was protected by the anti-SLAPP statute. (Id. at p. 1061.) The portion of the
opinion cited by Fulkerson and Batta relates to the court’s determination on
the second prong of the anti-SLAPP analysis, in which it was tasked with
deciding if the plaintiff had shown a probability of prevailing on his civil
rights claim against the City under 42 United States Code section 1983. (Id.
at pp. 1062‒1064.) This analysis required the court to consider whether
hiring a private investigator to determine if two members of the city council
were having an extra-marital affair was protected petitioning activity under
the First Amendment, and is immaterial to the issue here. (Ibid.)
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