Dutton v. Ouriel CA2/2 ( 2021 )

Filed 4/30/21 Dutton v. Ouriel CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JAMES DUTTON et al., B305386
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No.
19SMCV00329)
v.
ROBERT OURIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Edward Weinhaus; Adam Florek (pro hac vice) for
Defendant and Appellant.
Law Office of D. Joshua Staub and D. Joshua Staub for
Plaintiffs and Respondents.
******
An elderly couple made a friend a short-term loan of
$427,000, and the friend absconded with the money. The couple
then sued the man who helped their friend persuade the bank
into which she had deposited the money to release the funds to
her. The man filed a motion to strike the claims against him
under our anti-SLAPP statute (Code Civ. Proc., § 425.16).1 The
trial court denied the motion. This was the correct ruling, so we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In early 2017, Rodica Marinescu (Marinescu) was a friend
of James and Patricia Dutton (collectively, the Duttons).2
In January 2017, Marinescu told the Duttons that she was
the one-third owner of a property in Los Angeles, California; that
she wanted to “buy out” the owners of the remaining two-thirds’
interest in the property; and that she needed a balance of
$427,000 in her bank account as proof that she had the financial
wherewithal to purchase that interest. Marinescu asked the
Duttons if they would temporarily loan her the $427,000 needed
for the “proof of funds” verification, which she would pay them
back once the verification issued.
The Duttons agreed, and James wrote Marinescu a check
for $427,000 on Valentine’s Day 2017. That same day, Marinescu
deposited the check into her bank account at Wells Fargo Bank
1 “SLAPP” stands for “Strategic Lawsuit Against Public
Participation.”
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2 Individually, however, we will refer to the Duttons by their
first names to avoid confusion. We mean no disrespect.
2
(Wells Fargo). Three days later, Wells Fargo issued a “proof of
funds” letter verifying the balance in Marinescu’s account.
Something then happened that Marinescu did not intend:
Wells Fargo “flagged” the check “for close[] review.” Until Wells
Fargo completed its verification of the “issuance and the intent”
of James’s check, it “froze” the check by prohibiting any
withdrawal against those funds.
Marinescu immediately undertook efforts to get Wells
Fargo to unfreeze those funds through what, as the Duttons later
alleged, were a series of “false statements” and omissions that
“misrepresent[ed the] transaction concerning the $427,000.”
Specifically, Marinescu visited the Santa Monica branch of Wells
Fargo to ask them to unfreeze the funds; she thereafter had
someone place a phone call to a Wells Fargo corporate official on
her behalf asking the bank to release the funds for withdrawal;
and, as a follow-up to the call, she had her real estate broker send
a letter on the letterhead of a brokerage company called Partners
Trust formally requesting the funds to be released. In the letter,
the real estate broker represented that the $427,000 check was
the first disbursement of a $900,000 loan that the Duttons had
made to Marinescu to assist her in purchasing a different
property, and “respectfully request[ed] that Wells Fargo
immediately release [Marinescu’s] funds” because the freeze
rendered the “proof of funds” invalid and “continu[ed] to greatly
damage many parties’ economic interests.” The letter did not
mention or even hint at possible litigation.
After receiving the letter, Wells Fargo lifted the freeze on
the $427,000 check. Marinescu immediately withdrew the funds
and refused to return any of the money to the Duttons.
3
Marinescu had enlisted Robert Ouriel (Ouriel) to assist her
and the real estate broker in their efforts to persuade Wells
Fargo to unfreeze the Duttons’s $427,000 check. Specifically,
Ouriel had accompanied Marinescu on her visit to the Santa
Monica branch of Wells Fargo; he may have placed the phone call
to the Wells Fargo corporate official; and he had either partially
or entirely drafted the letter sent to Wells Fargo.
Although Ouriel was an attorney in Florida at that time (he
was subsequently disbarred), he was not at that time (and had
never been) a member of the State Bar of California and was not
at that time authorized to practice law before any federal courts.
II. Procedural Background
In February 2019, the Duttons sued Marinescu’s real estate
broker, Ouriel, and Partners Trust for (1) aiding and abetting
Marinescu’s fraud, and (2) financial elder abuse because the
Duttons were in their 70s and 80s.3 (The Duttons had already
sued Marinescu in a separate lawsuit, which was later deemed
related to this case.)
Representing himself, Ouriel filed a motion to strike the
claims against him under the anti-SLAPP statute. Following
briefing, and a hearing in January 2020, the trial court denied
the motion to strike after concluding that the Duttons’s claim did
not rest on activity protected by the anti-SLAPP statute.
Ouriel filed this timely appeal.
3 The Duttons also sued Wells Fargo for “breach of duty,” but
Wells Fargo demurred, and the Duttons dropped their claim
against Wells Fargo in their subsequently filed first amended
complaint.
4
DISCUSSION
Ouriel argues that the trial court erred in denying his
motion to strike under the anti-SLAPP statute. We
independently review a trial court’s anti-SLAPP analysis
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3), and are accordingly not bound by the trial court’s
ruling or rationale (Rutgard v. City of Los Angeles (2020) 52
Cal.App.5th 815, 825). Because Ouriel has not on appeal
challenged any of the trial court’s evidentiary rulings, we will
consider only the evidence that the trial court considered. (Abir
Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882,
889-891 (Lahiji).)
I. The Anti-SLAPP Statute
A. Generally
The anti-SLAPP statute “provides a procedure for weeding
out, at an early stage, meritless claims arising from” activity that
is protected by that statute. (Baral v. Schnitt (2016) 1 Cal.5th
376, 384.) “Accordingly, a trial court tasked with ruling on an
anti-SLAPP motion must ask two questions: (1) has the moving
party ‘made a threshold showing that the challenged cause of
action arises from protected activity’ [citation], and, if so, (2) has
the nonmoving party ‘established . . . a probability that [they] will
prevail’ on the challenged cause of action by showing that the
claim has ‘minimal merit’ [citations]?” (Lahiji, supra, 40
Cal.App.5th at p. 887.)
The first question—that is, whether a cause of action arises
from protected activity—“turns on two subsidiary questions: (1)
What conduct does the challenged cause of action ‘arise[] from’;
and (2) is that conduct ‘protected activity’ under the anti-SLAPP
statute?” (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017)
15 Cal.App.5th 686, 698 (Mission Beverage).) “A cause of action
5
‘arises from’ protected activity when the ‘cause of action itself’ is
‘based on’ protected activity. [Citations.] Whether a cause of
action is itself based on protected activity turns on whether its
“‘“principal thrust or gravamen”’” is protected activity—that is,
whether the “‘core injury-producing conduct’” warranting relief
under that cause of action is protected activity.” (Id., quoting
City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1114 (Briggs); Colyear v. Rolling Hills Community Assn. of
Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 134.) What
conduct “is protected under the anti-SLAPP statute” turns “not
[on] First Amendment law, but [rather on] the statutory
definitions in . . . section 425.16, subdivision (e).” (City of
Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) As pertinent
here, subdivision (e) of section 425.16 defines protected activity to
include “any written or oral statement or writing” made “before a
legislative, executive, or judicial proceeding” or “in connection
with an issue under consideration or review by a . . . judicial
body, or any other official proceeding authorized by law.”
(§ 425.16, subd. (e)(1) & (2).)
In assessing whether a cause of action arises from
protected activity, a trial court must consider “the pleadings” as
well as the “supporting and opposing affidavits stating the facts
upon which the liability or [a] defense is based.” (§ 425.16, subd.
(b)(2).) However, the pleadings are of “primary” importance
because the plaintiff is the architect of his or her own complaint,
such that the “core injury-producing conduct” at issue in a case is
primarily a function of “what is pled—not what is proven.” (Bel
Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936-937
6
(Bel Air Internet); Comstock v. Aber (2012) 212 Cal.App.4th 931,
942.)
B. Communications in connection with judicial
and other proceedings
By its plain terms, the definitions of protected activity that
reach communications made “before a” “judicial proceeding” or
“in connection with an issue under consideration or review by” a
“judicial body” or “any other official proceeding authorized by
law” encompass statements made directly to judicial,
administrative, and arbitral tribunals as well as statements
made to others that relate to ongoing proceedings before those
tribunals. (Briggs, supra, 19 Cal.4th at p. 1115 [“‘“basic act of
filing litigation or otherwise seeking administrative action”’”;
protected]; Beach v. Harco National Ins. Co. (2003) 110
Cal.App.4th 82, 94 (Beach) [same, as to arbitrations]; Collier v.
Harris (2015) 240 Cal.App.4th 41, 54 [settlement demand letter;
protected]; O&C Creditors Group, LLC v. Stephens & Stephens
XII, LLC (2019) 42 Cal.App.5th 546, 566 (O&C Creditors)
[settlement agreement; protected]; Pettitt v. Levy (1972) 28
Cal.App.3d 484, 490 [statements made during witness
preparatory interviews; protected].)
These definitions of protected activity also reach
“‘communications preparatory to or in anticipation of the
bringing of an action or other official proceeding’” (Briggs, supra,19 Cal.4th at p. 1115), but only if those communications “relate[]
to litigation that is contemplated in good faith and under serious
consideration.” (Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1251 (Action Apartment); Digerati
Holdings, LLC v. Young Money Entertainment, LLC (2011) 194
Cal.App.4th 873, 887 (Digerati Holdings).) Litigation is not
“under serious consideration” if it is only a “possibility.” (Mission
7
Beverage, supra, 15 Cal.App.5th at p. 703; People ex rel. Fire Ins.
Exchange v. Anapol (2012) 211 Cal.App.4th 809, 827-828
(Anapol).)
Although courts have taken “‘a fairly expansive view of
what constitutes litigation-related activities’” qualifying as
protected activity under the anti-SLAPP statute (O&C Creditors,
supra, 42 Cal.App.5th at p. 566; Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1268 (Neville)), “[n]ot all attorney conduct in
connection with litigation, or in the course of representing clients,
is protected” activity (California Back Specialists Medical Group
v. Rand (2008) 160 Cal.App.4th 1032, 1037 (California Back
Specialists); Optional Capital, Inc. v. DAS Corp. (2014) 222
Cal.App.4th 1388, 1400). What distinguishes protected activity
from unprotected activity is the degree of connection between the
communication at issue and the anticipated litigation, and this
degree of connection is evaluated on a case-by-case basis by
examining a number of factors (Anapol, supra, 211 Cal.App.4th
at p. 827).
First, courts examine the identity of the parties to the
communication, including whether the communication was made
by a practicing attorney capable of initiating litigation. (Neville,
supra, 160 Cal.App.4th at p. 1269 [letter sent on attorney’s
letterhead].) In this regard, it is not enough that the recipient of
a communication is a person who could be sued. (Anapol, supra,
211 Cal.App.4th at p. 826 [“the fact that a dispute exists that
might ultimately lead to arbitration does not make every step in
that dispute part of a right to petition”]; Beach, supra, 110
Cal.App.4th at pp. 94-95.)
Second, courts examine whether the communication was a
necessary prerequisite to any litigation. (Anapol, supra, 211
8
Cal.App.4th at p. 827 [stating rule]; Lunada Biomedical v. Nunez
(2014) 230 Cal.App.4th 459, 476-477 [sending notice required by
Consumer Legal Remedies Act; protected]; RGC Gaslamp, LLC v.
Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 426
[filing mechanic’s lien prior to bringing foreclosure action;
protected].) However, a communication that is a necessary
prerequisite to litigation is not protected activity where future
litigation is also contingent on the failure of further negotiations
or the failure to meet further contractual obligations. (Bel Air
Internet, supra, 20 Cal.App.5th at pp. 940-941 [so stating];
Mission Beverage, supra, 15 Cal.App.5th at pp. 703-704 [letter
commencing end of distributor agreement prior to arbitration not
protected where arbitration permissible only if good faith
negotiations thereafter fail].)
Third, courts examine the content of the communication
itself.
On the one hand, a communication is more likely to
constitute protected activity if it (1) specifically threatens
litigation (Digerati Holdings, supra, 194 Cal.App.4th at pp. 887-
888 [statements made to film distributors “threatening them with
litigation”; protected]; Blanchard v. DIRECTV, Inc. (2004) 123
Cal.App.4th 903, 909-910, 920-921 [letters warning recipients
they were “violat[ing] federal law,” seeking their cooperation, and
“provid[ing]” them with “an opportunity to resolve the matter by
way of settlement before commencement of suit”; protected];
Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 260, 268 [letter
demanding renouncement of false and misleading claims and
disclosure of all persons to whom claims were made, and
threatening to “‘consider appropriate legal action’”; protected]);
(2) contemplates the filing of litigation (Wilcox v. Superior Court
9
(1994) 27 Cal.App.4th 809, 814-815, 821-822 [letter asks
recipients to contribute to cost of pursuing litigation; protected],
overruled in part on other grounds as stated in Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn.
5; Neville, supra, 160 Cal.App.4th at p. 1269 [letter sent to third
parties on lawyer’s letterhead, with subject line “[plaintiff] v.
[defendant],” and stating plaintiff will “aggressively pursue
. . . all available remedies”; protected]); or (3) counsels or
encourages others to initiate litigation (Bel Air Internet, supra, 20
Cal.App.5th at pp. 940, 943 [stating rule]; Dove Audio, Inc. v.
Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784
[letter seeking support of recipients in sender’s forthcoming
complaint to the Attorney General; protected]; Ludwig v.
Superior Court (1995) 37 Cal.App.4th 8, 17 [letter asking
recipients to contribute to cost of litigation; protected]).
On the other hand, a communication is less likely to be
protected activity if it (1) merely presents a demand or claim for
payment that is part of the ordinary course of business (Anapol,
supra, 211 Cal.App.4th at p. 827 [insured’s initial submission of
claim to insurance company as part of “regular course of
business” and not in anticipation of litigation; not protected];
People ex rel. 20th Century Ins. Co. v. Building Permit
Consultants, Inc. (2000) 86 Cal.App.4th 280, 285-286 [same];
Beach, supra, 110 Cal.App.4th at pp. 94-95 [same]; Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921, 932 [submission of claim for payment to city;
not protected]); (2) constitutes informal negotiation (Anapol, at p.
827 [insured’s initial submission of claim to insurance company;
not protected because “informal negotiations” likely to follow];
Haneline Pacific Properties, LLC v. May (2008) 167 Cal.App.4th
10311, 316, 320 (Haneline) [“[n]egotiations and persuasion,” even
with the “‘spect[er] of litigation “loom[ing]’””; not necessarily
protected]), or (3) merely reminds or urges the recipient to adhere
to its contractual or legal duties (Anapol, at pp. 827-828;
Haneline, at pp. 316, 320).
II. Analysis
We independently agree with the trial court’s conclusion
that Ouriel did not carry his burden of establishing that the
Duttons’s claims for aiding and abetting fraud and for financial
elder abuse arise out of activity protected by the anti-SLAPP
statute.
In both of their claims, the Duttons assert that they were
injured by the acts of Marinescu, her real estate broker, and
Ouriel in making false statements to persuade Wells Fargo to
allow Marinescu access to the $427,000 check. Those statements
occurred when one or more of them (1) visited the Santa Monica
branch of Wells Fargo to persuade the bank to unfreeze the
funds, (2) called the Wells Fargo corporate official, and (3) sent
the letter explaining why the $427,000 check was legitimate and
“respectfully request[ing]” Wells Fargo to “immediately release
[the] funds.” This is the conduct from which the Duttons’s
challenged causes of action arise.4 (Mission Beverage, supra, 15
Cal.App.5th at p. 698.)
4 Although the Duttons filed an amended complaint after the
trial court denied Ouriel’s anti-SLAPP motion and although that
amended complaint alleges that Marinescu’s real estate broker
(rather than Ouriel) placed the call to the Wells Fargo corporate
official, the amended complaint continues to allege that Ouriel
assisted and/or advised Marinescu with respect to the visit, the
call, and the letter. We accordingly reject the Duttons’s entreaty
that we view their filing of an amended complaint as rendering
11
This conduct does not constitute protected activity because
the connection between this activity and any anticipated
litigation is remote. This conduct was not a precursor to any
litigation later initiated by Marinescu, as she never initiated
litigation against Wells Fargo (or, for that matter, the Duttons).
Nor did this conduct constitute “‘communications preparatory to
or in anticipation of the bringing of an action or other official
proceeding’” as the communications to Wells Fargo did not
“relate[] to litigation that [was] contemplated in good faith and
under serious consideration.” (Briggs, supra, 19 Cal.4th at p.
1115; Action Apartment, supra, 41 Cal.4th at p. 1251.) All of the
pertinent factors point to this conclusion. Ouriel accompanied
Marinescu on the in-person visit; he may or may not have been
the person to place the call; and he was at most a ghostwriter of
the letter, which was sent by Marinescu’s real estate broker on
company stationery. Because Ouriel was not at that time
licensed to practice law in California or any federal court, he was
incapable of filing suit in those tribunals on Marinescu’s behalf.
(Ouriel offered no evidence as to who would be qualified to seek
relief for Marinescu before an administrative tribunal.) The
conduct in this case was not a necessary prerequisite to any
future litigation. Most tellingly, the content of these
communications was not related to any anticipated litigation. At
no point in the in-person visit, the call, or the letter did Ouriel,
Marinescu, or the real estate broker threaten, expressly
contemplate, or encourage litigation against Wells Fargo. To the
contrary, the communications amounted to a single request that
Wells Fargo release the funds: The employees at the branch
moot either Ouriel’s anti-SLAPP motion to their initial complaint
or this appeal challenging the trial court’s ruling on that motion.
12
office told Marinescu to contact the corporate office; the corporate
office in the call requested a validation of the funds’ legitimacy;
and the letter responded to that request by purporting to set
forth a legitimate reason for the $427,000 deposit and by
“respectfully request[ing]” an “immediate[] release [of those]
funds.” At best, these communications constituted an initial
demand or claim for release of funds that was part and parcel of
Wells Fargo’s regular course of business and thus constituted the
first salvo of what might have blossomed into a back-and-forth
negotiation between a bank and one of its customers, except that
Wells Fargo immediately acquiesced to Marinescu’s request.
Under well-settled precedent, these communications were not
protected activity. (Anapol, supra, 211 Cal.App.4th at p. 827;
Beach, supra, 110 Cal.App.4th at pp. 94-95; Haneline, supra, 167
Cal.App.4th at pp. 316, 320.)
Ouriel resists this conclusion with what boils down to two
arguments.
First, he asserts that Marinescu retained him for his
expertise in “federal banking law,” that his bar status still
allowed him to initiate administrative proceedings, and that he
was Marinescu’s “agent,” such that the Duttons’s lawsuit is
“punish[ing]” him for his “successful lawyering.” Even if we
ignore the absence of any evidence of whether Ouriel met the
requirements for representing Marinescu in administrative
tribunals, and whether or not Ouriel qualified as Marinescu’s
agent, the premise of Ouriel’s argument is still that his conduct is
automatically “protected activity” by virtue of the fact that he
was an attorney (in Florida) and provided Marinescu legal advice
and assistance. But this premise is invalid because, as noted
above, “[n]ot all attorney conduct in connection with litigation, or
13
in the course of representing clients, is protected” activity.
(California Back Specialists, supra, 160 Cal.App.4th at p. 1037.)
More is required, and, as explained above, is absent here.
Second, Ouriel contends that Marinescu said she was
“contemplating bringing an action against Wells Fargo,” and that
Wells Fargo was concerned Marinescu might “potentially have a
claim for breach” of federal banking regulations if they continued
to freeze her funds. But the subjective intentions of Marinescu
and the worries of Wells Fargo are neither dispositive nor
relevant to the question whether Ouriel engaged in conduct that
was sufficiently in anticipation of litigation as to be deemed
protected activity. Ouriel is the one asserting that his conduct
was protected activity under the anti-SLAPP statute, so the
proper focus is on Ouriel and whether his conduct constituted
“protected activity” because, while advising Marinescu, he was
still exercising “his . . . [own] constitutional right to petition the
government” (Bel Air Internet, supra, 20 Cal.App.5th at p. 944).
* * *
In light of our analysis, we have no occasion to reach the
Duttons’s many alternative arguments for affirmance (18, by our
count) or the second step of the anti-SLAPP analysis.
14
DISPOSITION
The order is affirmed. The Duttons are entitled to their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
15