Tour-Sarkaissian v. White CA1/2 ( 2014 )

Filed 9/30/14 Tour-Sarkaissian v. White CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CHRISTINE TOUR-SARKISSIAN et al.,
Cross-complainants and Respondents,
A136812
v.
(San Francisco City and County
BRADLEY R. WHITE,
Super. Ct. No. CGC-11-516404)
Cross-defendant and Appellant.
CHRISTINE TOUR-SARKISSIAN et al.,
Cross-complainants and Appellants, A136874
v. (San Francisco City and County
CHRISTINA M. SAGONOWSKY et al., Super. Ct. No. CGC-11-516404)
Cross-defendants and Respondents.
Attorney Bradley R. White filed on behalf of his client, Christina M. Sagonowsky,
individually and as Executor for the Estate of Leocadia Sagonowsky (Sagonowsky), a
complaint for, among other things, legal malpractice against the Tour-Sarkissian Law
Offices, LLP (Tour-Sarkissian), and four attorneys at this law office, Christine Tour-
Sarkissian (Christine), Paul Tour-Sarkissian, Abigail Morris, and Phil Foster
(collectively, defendants). Defendants filed a cross-complaint with 15 causes of action
against Sagonowsky and White, which were based on alleged misrepresentations by
Sagonowsky and White that resulted in the law firm’s agreeing to provide legal
1
representation to Sagonowsky in her pending litigation. The law firm was injured
because, contrary to her promises, Sagonowsky did not reimburse the firm for the costs of
litigation and did not pay attorney fees due under the retainer agreements.
Pursuant to the provisions of California’s anti-strategic lawsuit against public
participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16),1 Sagonowsky and White
filed separate special motions to strike various allegations in the cross-complaint and the
motions were heard by two different judges. One judge granted Sagonowsky’s motion
and another judge denied White’s motion. Defendants appeal the order granting
Sagonowsky’s special motion to strike, and White appeals the order denying his special
motion to strike. At the parties’ request, we consolidated these appeals.
We conclude that the anti-SLAPP statute does not apply to Tour-Sarkissian’s
pleading. Accordingly, we reverse the order granting Sagonowsky’s motion to strike,
and affirm the order denying White’s special motion to strike.
BACKGROUND
The Complaint and Cross-Complaint
In May 2009, Sagonowsky and White met with Tour-Sarkissian seeking to have
the law firm represent Sagonowsky in her marital dissolution action (the divorce action)2
and in a derivative civil action against Sagonowsky’s ex-husband (the civil action).3 At
that time, Sagonowsky was in propria persona in both of these actions. According to
White, he advised Sagonowsky about selecting Tour-Sarkissian to represent her and
provided documents to Tour-Sarkissian, which included pleadings, discovery, and
evidence for both the divorce and civil actions. According to Christine, White introduced
himself as Sagonowsky’s boyfriend/fiancé. She declared that White disclosed that he
was a worker’s compensation attorney and that Sagonowsky and he “were unequivocal
1 All further unspecified code sections refer to the Code of Civil Procedure.
2 Sagonowsky v. Kekoa, San Francisco County Superior Court, case No. FDI-03-
755091.
3 Sagonowsky v. Kekoa, San Francisco County Superior Court, case No. CGC-07-
463799.
2
that White was not representing Sagonowsky in either the civil action or the marital
dissolution.”
Tour-Sarkissian and Sagonowsky executed two separate retainer agreements in
May 2009. About 19 months later, Tour-Sarkissian believed that Sagonowsky had made
untrue representations to defendants. Tour-Sarkissian withdrew as Sagonowsky’s
attorney of record in the marital dissolution action on December 21, 2010, and withdrew
from the civil action on January 10, 2011.
On December 7, 2011, White, on behalf of Sagonowsky, filed a complaint against
defendants for, among other things, legal malpractice and breach of fiduciary duty. On
March 28, 2012, Sagonowsky filed an amended complaint against defendants for
professional negligence, breach of fiduciary duty, intentional infliction of emotional
distress, breach of contract, negligence per se and constructive fraud, and violation of the
Unfair Business Practices.
On April 27, 2012, defendants filed a cross-complaint for damages against
Sagonowsky and White and, on June 12, 2012, filed a first amended cross-complaint
(FACC), the operative pleading. Although the FACC named all of the defendants as
cross-complainants, only Tour-Sarkissian is listed as the claimant for each cause of
action.4 These causes of action included two claims for breach of written contract (1st
and 7th causes of action), two claims for breach of covenant of good faith and fair
dealing (2nd and 8th causes of action), a claim for account stated (3rd cause of action),
two claims for quantum meruit (4th and 9th causes of action), two claims for promissory
estoppel (5th and 10th causes of action), two claims for declaratory relief (6th and 11th
cause of action), one claim for intentional misrepresentation (12th cause of action), one
claim for concealment (13th cause of action), one claim for negligent misrepresentation
(14th cause of action), and one claim for promissory fraud (15th cause of action). All of
the claims were against Sagonowsky and the 12th through 15th causes of action were also
against White.
4 Unless a fact or action can be directly attributed to defendants or to one of the
individual defendants, we refer solely to Tour-Sarkissian.
3
The FACC alleged that White was “claiming to be the fiancé” of Sagonowsky and
that Sagonowsky and White were “the agents, servants, de facto general partners, and
employees of one another . . . .” It asserted that when Sagonowsky and White “solicited”
Tour-Sarkissian to represent her, the divorce action had been pending in the court for
approximately six years and the civil action against Sagonowsky’s ex-husband had been
pending for approximately two years. Tour-Sarkissian further alleged that Sagonowsky
and White made false representations regarding their positions and evidence related to the
civil and divorce actions in order to induce Tour-Sarkissian to represent Sagonowsky in
her pending divorce and civil actions.5 Tour-Sarkissian, according to the FACC, relied
5 The specific misrepresentations by Sagonowsky and White regarding the
divorce action alleged in the FACC were the following: “that Sagonowsky sought swift
resolution of the marital dissolution through either trial or settlement”; “that Sagonowsky
was not taking legal positions or asserting claims or defenses in the marital dissolution
action without probable cause or for the purpose of harassing, annoying, or exacting
revenge on Curtis Kekoa for Curtis Kekoa’s desire to terminate his marriage with
Sagonowsky”; “that Sagonowsky had ample documentary evidence as well as witnesses
to support all of Sagonowsky’s claims against Kekoa in the marital dissolution matter
against Kekoa”; “that Sagonowsky had sufficient evidence to justify pursuing
Sagonowsky’s claims and defenses in the marital dissolution action”; “that Sagonowsky
would cooperate at all stages of the marital dissolution litigation and would assist [Tour-
Sarkissian] in getting up to speed with the huge volume of pleadings and
correspondence”; and “that Sagonowsky would pay for all legal services provided to
Sagonowsky by [Tour-Sarkissian] in the marital dissolution action; pay for all costs of
suit and expenses associated with the pursuit of Sagonowsky’s claims and defenses in the
marital dissolution action; and immediately reimburse [Tour-Sarkissian] for all costs of
suit and expenses advanced by [Tour-Sarkissian] on Sagonowsky’s behalf in the marital
dissolution action.”
With regard to the civil action, the FACC alleged that Sagonowsky and White
made the following misrepresentations: “that a final settlement between Sagonowsky . . .
and Curtis Kekoa . . . was imminent”; “that the insurance carrier providing a defense for
Curtis Kekoa had offered to settle the civil action” for approximately one million dollars;
“that Sagonowsky only needed to retain [Tour-Sarkissian] as the attorneys of record . . .
to obtain a trial continuance and finalize and maximize the imminent settlement in the
approximate amount of $1 million, which, according to Sagonowsky and White, only
experienced trial counsel such as [Tour-Sarkissian] could maximize effectively”; “that
Sagonowsky desired and sought a final settlement of the civil action against Curtis Kekoa
rather than to proceed to trial”; “that Sagonowsky would pay in advance all costs of suit
4
on these misrepresentations when it agreed to provide legal representation to
Sagonowsky in these two lawsuits.
Tour-Sarkissian alleged in the FACC that it relied on Sagonowsky’s
misrepresentations that she would pay attorney fees and would reimburse the firm for
costs in the two actions. Sagonowsky repeatedly affirmed, according to the FACC, her
obligation and intent to pay for the legal services provided and the costs Tour-Sarkissian
incurred on her behalf. Consequently, Tour-Sarkissian agreed to represent her and to
continue advancing costs. Other than the $10,000 initial retainer fee, Sagonowsky,
according to the FACC, failed and refused to pay for the legal services provided to her by
Tour-Sarkissian in the divorce and civil actions or to pay for the costs of the lawsuits.6
Tour-Sarkissian alleged that Sagonowsky owed it more than $763,965.25 for legal
services rendered in the divorce action, and more than $42,397.23 for costs of the suit and
and other expenses associated with pursuing the civil action or otherwise immediately
reimburse [Tour-Sarkissian] for all costs of suit and other expense advanced on
Sagonowsky’s behalf in the civil action”; “that the insurance carrier providing a defense
for Curtis Kekoa in the civil action had agreed to settle the action for an approximate $1
million, in part, because Sagonowsky was in possession of evidence that ensured the
success of the malicious prosecution causes of action against Curtis Kekoa”; “that the
insurance carrier providing a defense for Curtis Kekoa in the civil action had agreed to
settle the action for an approximate $1 million, in part, because Sagonowsky was in
possession of evidence that ensured the success of the elder abuse causes of action
against Curtis Kekoa”; “that the insurance carrier providing a defense for Curtis Kekoa in
the civil action had agreed to settle the action for an approximate $1 million, in part,
because Sagonowsky was in possession of evidence that ensured the success of the
defamation cause of action against Curtis Kekoa”; “that Sagonowsky had ample
documentary evidence as well as witnesses to support all of Sagonowsky’s claims against
Kekoa and others in the civil action”; “that Sagonowsky would cooperate with [Tour-
Sarkissian] at all stages including but not limited to providing [Tour-Sarkissian] with all
evidence and witnesses supporting Sagonowsky’s claims”; and “that Sagonowsky was
not prosecuting the civil action without probable cause or for the purpose of harassing,
annoying, or exacting revenge on Curtis Kekoa for Curtis Kekoa’s desire to terminate the
marriage with Sagonowsky.”
6 Sagonowsky had agreed to pay on an hourly basis for the legal representation in
the divorce action and on a contingency fee basis in the civil action.
5
other expenses advanced by Tour-Sarkissian. Sagonowsky owed Tour-Sarkissian,
according to the FACC, $17,126.57 in costs for the civil action.
Sagonowsky’s Special Motion to Strike and Defendants’ Notice of Appeal
Sagonowsky filed a special motion to strike pursuant to section 425.16,
subdivision (e) (anti-SLAPP) against Tour-Sarkissian’s 2nd, 5th, 8th, 10th, and 12th
through 15th causes of action.7 Sagonowsky also sought an award of attorney fees
against defendants.
Judge Curtis E.A. Karnow held a hearing on Sagonowsky’s anti-SLAPP motion
on September 19, 2012. Following the hearing, Judge Karnow issued an order requesting
additional briefing because Sagonowsky “alluded to” Tuszynska v. Cunningham (2011)
199 Cal. App. 4th 257 (Tuszynska), but failed to mention this case in her briefing. The
parties submitted supplemental briefing.
On October 5, 2012, Judge Karnow issued an order granting Sagonowsky’s
special motion to strike. The court explained: “It is true that the content of business
communications and negotiations do not usually involve the sort of First Amendment
activity that triggers the scrutiny of [section] 425.16 [(e.g., Blackburn v. Brady (2004)
116 Cal. App. 4th 670) (Blackburn)], but this general rule apparently gives way in the
context of retaining attorneys. In the present case we know that the claims are focused
directly on the communications involved in the hiring of attorneys, and thus Tuszynska
requires me to hold that the claims here are subject to the special motion to strike, and
that [Sagonowsky has made her] prima facie showing. [Citation.] Because [Tour-
Sarkissian] ha[d] made no effort to satisfy the second prong—that is, to produce evidence
in support of the allegations—I must grant the motion to strike.”
On October 17, 2012, Judge Karnow issued an order reconsidering the October 5
order because he had failed to consider Tour-Sarkissian’s argument that there was a
reasonable probability that it would prevail on its claims. Judge Karnow concluded that
the litigation privilege (Civ. Code, § 47, subd. (b)) applied under Olsen v. Harbison
7 The motion in the record does not have a file stamp, but White, Sagonowsky’s
attorney, signed it on August 13, 2012.
6
(2010) 191 Cal. App. 4th 325. The court adopted its prior order “save for the statement
that [defendants] had made no argument on the second prong” and ruled that defendants
had not satisfied the second prong of the anti-SLAPP test as they had not demonstrated a
probability of prevailing on the merits. The court thus ruled that the 2nd, 5th, 8th, 10th,
and 12th through 15th causes of action against Sagonowsky were stricken.
Defendants filed a timely notice of appeal from the order granting Sagonowsky’s
motion to strike and the reconsideration order.
White’s Special Motion to Strike and White’s Notice of Appeal
On June 1, 2012, White filed a special motion to strike pursuant to section 425.16,
subdivision (e) against Tour-Sarkissian’s 12th through 15th causes of action against him.
In support of his motion, he submitted his declaration. He asserted that in April 2009,
Sagonowsky did not have an attorney representing her in the divorce or civil action. He
declared that he began providing legal advice to Sagonowsky concerning the retention of
new counsel and the transition from Sagonowsky’s prior attorneys to new counsel. He
was present when Sagonowsky interviewed Christine and at subsequent meetings related
to the hiring of Tour-Sarkissian.
Tour-Sarkissian filed opposition to White’s special motion to strike. Attached to
the opposition was a declaration by Christine.8
Judge Ernest H. Goldsmith held the hearing on White’s anti-SLAPP motion on
August 15, 2012. On this same date, the court issued its order denying White’s special
motion to strike. The court explained that White had not “met his threshold showing to
satisfy the first prong” of section 425.16 as to the 12th through 15th causes of action of
the cross-complaint. The court stated that White’s statements made in order to retain
defendants as counsel “did not ‘occur in connection with “an issue under consideration or
review” in the [underlying actions].’ [Citation.]” The court found that White’s
representation of Sagonowsky “in the instant action and other matters do not pertain to
the allegations in the cross-complaint. Further, the statements are not protected by the
8 White filed evidentiary objections to the declaration of Christine; the trial court
did not rule on these objections.
7
litigation privilege. [White] did not make the statements in contemplation of litigation
against [defendants]. Rather, [White] made the statements in negotiations and to
persuade [defendants] to represent [Sagonowsky] in the underlying actions. (Haneline
Pacific Properties, LLC v. May (2008) 167 Cal. App. 4th 311, 319.”
White filed a timely notice of appeal.
Consolidation of the Appeals
On January 3, 2013, upon the stipulated motion of all the parties, we ordered the
consolidation of defendants’ appeal and White’s appeal for purposes of oral argument
and decision only. The parties filed separate briefs for the two appeals.
DISCUSSION
I. The Anti-Slapp Statute and Standard of Review
Section 425.16, “commonly referred to as the anti-SLAPP statute” provides “for
the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.”
(Club Members for an Honest Election v. Sierra Club (2008) 45 Cal. 4th 309, 312, 315.)
“The Legislature authorized the filing of a special motion to strike such claims,
(§ 425.16, subds. (b)(1), (f)), and expressly provided that section 425.16 should ‘be
construed broadly.’ (§ 425.16, subd. (a); see Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal. 4th 1106, 1119.) Such a motion requires a two-step process.
First, the defendant must make a prima facie showing that the ‘cause[s] of action . . .
aris[e] from’ the defendant’s actions ‘in furtherance of that [defendant’s] right of . . . free
speech . . . in connection with a public issue.’ (§ 425.16, subd. (b)(1).) If a defendant
meets this threshold showing, the plaintiff must establish ‘a probability that the plaintiff
will prevail on the claim[s].’ [Citation.]” (Id. at pp. 315-316.)
Section 425.16, subdivision (e) specifies the type of activity protected by the anti-
SLAPP statute. As relevant here,9 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
9Sagonowsky and White argue that section 425.16, subdivision (e)(2) applies to
Tour-Sarkissian’s FACC.
8
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, [or] (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 . . . .” (§ 425.16, subd. (e).) Based on this
provision, “ ‘statements, writings and pleadings in connection with civil litigation are
covered by the anti-SLAPP statute, and that statute does not require any showing that the
litigated matter concerns a matter of public interest.’ ” (Neville v. Chudacoff (2008) 160
Cal. App. 4th 1255, 1261 (Neville).)
“[T]he statutory phrase ‘cause of action . . . arising from’ means . . . 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.” (City of Cotati v. Cashman (2002) 29
Cal. 4th 69, 78.) To determine whether the plaintiffs’ claims arise from protected acts, we
“examine the principal thrust or gravamen of a plaintiff’s cause of action to determine
whether the anti-SLAPP statute applies. . . .” (Ramona Unified School Dist. v. Tsiknas
(2005) 135 Cal. App. 4th 510, 519-520.) We look to see whether the activity giving rise to
the complaint constitutes “ ‘[t]he allegedly wrongful and injury-producing conduct . . .
that provides the foundation for the claim[s]’ ” asserted in the lawsuit. (Hylton v. Frank
E. Rogozienski, Inc. (2009) 177 Cal. App. 4th 1264, 1272.) “In the anti-SLAPP context,
the critical consideration is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity. [Citations.]” (Navellier v. Sletten (2002) 29
Cal. 4th 82, 89 (Navellier).)
Where a cause of action is based on both protected activity and unprotected
activity, it is subject to section 425.16 “ ‘unless the protected conduct is “merely
incidental” to the unprotected conduct.’ ” (Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP (2005) 133 Cal. App. 4th 658, 672; see also Haight Ashbury Free
Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th 1539, 1553-1554
(Haight Ashbury Free Clinics) [entire cause of action properly stricken where any part is
protected and not merely “incidental” to unprotected claim].)
9
We review the trial court’s ruling on an anti-SLAPP motion independently, and
apply the de novo standard of review. (Kajima Engineering & Construction, Inc. v. City
of Los Angeles (2002) 95 Cal. App. 4th 921, 929.)
II. Tour-Sarkissian’s Appeal
Judge Karnow found that the 2nd, 5th, 8th, 10th, and 12th through 15th causes of
action against Sagonowsky in the FACC arose from a protected activity and cited
Tuszynska, supra, 199 Cal. App. 4th 257 and Taheri Law Group v. Evans (2008) 160
Cal. App. 4th 482 (Taheri). The order stated that Tour-Sarkissian’s claims were “focused
directly on the communications involved in the hiring of attorneys” and, since these
communications were “in the context of retaining attorneys,” they were covered by the
anti-SLAPP statute under Tuszynska. We disagree. This case is a dispute over the failure
to pay litigation costs and attorney fees and any allegations in the FACC referring to
arguably protected activity were only incidental.
“[A] defendant in an ordinary private dispute cannot take advantage of the anti-
SLAPP statute simply because the complaint contains some references to speech or
petitioning activity by the defendant. [Citation.] [‘[T]he statute does not accord anti-
SLAPP protection to suits arising from any act having any connection, however remote,
with an official proceeding’].) . . . [I]t 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.” (Martinez v. Matabolife Internat., Inc. (2003) 113 Cal. App. 4th 181, 188.)
Sagonowsky contends that all of the causes of action that are the subject of the
special motion to strike incorporated by reference Sagonowsky’s alleged
misrepresentations regarding the civil and divorce actions and several causes of action set
forth these alleged misrepresentations in detail. Sagonowsky maintains that section
425.16, subdivision (e)(2) applies to all of these causes of action. She notes, “[A]
statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it
10
relates to the substantive issues in the litigation and is directed to persons having some
interest in the litigation,” even though it is not made in the court proceeding itself.
(Neville, supra, 160 Cal.App.4th at p. 1266.) She argues that the FACC makes it clear
that Tour-Sarkissian relied on these misrepresentations when it decided to represent her
in her two actions.
Contrary to Sagonowsky’s position, the causes of action in the FACC are not
covered by section 425.16, subdivision (e)(2) because Tour-Sarkissian is not seeking
relief from Sagonowsky for her protected conduct. The principal thrust of the causes of
action at issue in this appeal is that Sagonowsky made misrepresentations to get Tour-
Sarkissian to represent her. Sagonowsky’s misrepresentations about her lawsuits were
evidence that she was attempting to induce Tour-Sarkissian to represent her, but the
injury was that the law firm gave up other work to represent her and was not paid its fees
or reimbursed for the costs.10 (See, e.g., Gallimore v. State Farm Fire & Casualty Ins.
10 Tour-Sarkissian asserts that section 425.16 does not apply to “breach of
contract or fraud actions where the act of the party relates to the formation or
performance of contractual obligations and not with respect to the exercise of the right of
free speech.” (Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications
Engineers (1996) 49 Cal. App. 4th 1591, 1601-1602, overruled on another issue in Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58-67 and disapproved in
Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10, and
in Navellier, supra, 29 Cal.4th at pp. 91-95.) Tour-Sarkissian, however, ignores that the
foregoing statement has been clearly rejected by our Supreme Court in Navellier. Our
Supreme Court stated in Navellier: “Although Ericsson also questioned the applicability
of section 425.16 to ‘breach of contract or fraud actions where the act of the [defendant]
relates to the formation or performance of contractual obligations and not . . . to the
exercise of the right of free speech’ (Ericsson, . . . at pp. 1601-1602), that comment
cannot be reconciled with the plain language of the anti-SLAPP statute. Nothing in the
statute itself categorically excludes any particular type of action from its operation, and
no court has the ‘ “power to rewrite the statute so as to make it conform to a presumed
intention which is not expressed.” ’ [Citation.] For us to adopt such a narrowing
construction, moreover, would contravene the Legislature’s express command that
section 425.16 ‘shall be construed broadly.’ (§ 425.16, subd. (a).)” (Navellier, at p. 92.)
The court elaborated that “conduct alleged to constitute breach of contract may also come
within constitutionally protected speech or petitioning.” (Ibid.) Whether conduct is
11
Co. (2002) 102 Cal. App. 4th 1388, 1399 [the plaintiff alleged the defendant insurance
company had engaged in claims handling misconduct and violated statutory and
regulatory rules and, although the plaintiff alleged defendant’s communications to the
Department of Insurance were evidence of wrongdoing, there were no allegations that
those communications were wrongful in themselves or the cause of any injury to
plaintiff]; Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal. App. 4th 1532,
1540 [“In a malpractice suit, the client is not suing because the attorney petitioned on his
or her behalf, but because the attorney did not competently represent the client’s interests
while doing so”].)
It is not significant that Sagonowsky’s misrepresentations were triggered by her
pending civil and divorce actions. “[T]hat a cause of action arguably may have been
‘triggered’ by protected activity does not entail that it is one arising from such.
[Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of
action is based on the defendant’s protected free speech or petitioning activity.”
(Navellier, supra, 29 Cal.4th at p. 89.) Section 425.16 “ ‘does not accord anti-SLAPP
protection to suits arising from any act having any connection, however remote, with an
official proceeding. The statements or writings in question must occur in connection with
“an issue under consideration or review” in the proceeding.’ [Citations.]” (Blackburn,
supra, 116 Cal.App.4th at p. 677.)
In In re Episcopal Church Cases (2009) 45 Cal. 4th 467, a dispute emerged over
ownership of a building used by the local church for worship after the local church had
disaffiliated from the general church because of doctrinal differences. (Id. at pp. 474-
476.) Our Supreme Court rejected the argument that the action arose from the local
church’s protected activity of expressing its disagreement with and disafilliation from the
general church. The court concluded that the gravamen of the action was a property
dispute. (Id. at p. 477.) The court elaborated: “In filing this action, the Los Angeles
Diocese sought to resolve a property dispute. The property dispute is based on the fact
protected under the anti-SLAPP statute depends on the nature of the conduct rather than
the type of cause of action alleged. (Navellier, at pp. 92-93.)
12
that both sides claim ownership of the same property. This dispute, and not any protected
activity, is ‘the gravamen or principal thrust’ of the action. [Citation.] The additional
fact that protected activity may lurk in the background—and may explain why the rift
between the parties arose in the first place—does not transform a property dispute into a
SLAPP suit.” (Id. at pp. 477-478; see also Moriarty v. Laramar Management Corp.
(2014) 224 Cal. App. 4th 125, 138-140 [tenant’s claims against the landlords arising out of
an alleged breach of warranty of habitability were not protected even though they
followed the filing of an unlawful detainer]; United States Fire Ins. Co. v. Sheppard,
Mullin, Richter & Hampton LLP (2009) 171 Cal. App. 4th 1617, 1628 [reference to
protected activity is only incidental to the principal thrust of the complaint in a lawsuit
against former attorneys for damages and an injunction to prevent them from representing
opposing parties in litigation]; Wang v. Wal-Mart Real Estate Business Trust (2007) 153
Cal. App. 4th 790, 794, [anti-SLAPP statute did not apply to claims by sellers of real
property against the buyer and others because “causes of action [were] factually based on
allegations about the manner in which the private transactions between the parties were
conducted, and the governmental development permit applications were only incidental
or collateral to the principal purposes of those transactions”].)
Similarly here, the pending litigation preceded the alleged injury and was part of
the factual background to the present dispute. However, all of the causes of action were
based on Sagonowsky’s misrepresentations made during private negotiations to persuade
Tour-Sarkissian to represent her. This case is a fee dispute and all of the
misrepresentations related to the negotiating and agreeing to terms of a private
contractual relationship. It is “the defendant’s activity that gives rise to his or her
asserted liability—and whether that activity constitutes protected speech or petitioning.”
(Navellier, supra, 29 Cal.4th at p. 92.) Sagonowsky’s misrepresentations related to her
fee contract negotiations, not protected activity, and this case is a private dispute over
payment of attorney fees and litigation costs.
The FACC in the present case is clearly distinguishable from the claims in Haight
Ashbury Free Clinics, supra, 184 Cal. App. 4th 1539, a case cited by Sagonowsky. In
13
Haight Ashbury Free Clinics, the plaintiff nonprofit corporation alleged that its founder
breached fiduciary duties by conspiring with attorneys to give false testimony in
depositions in ongoing litigation concerning the corporation’s interest in a partnership.
(Id. at pp. 1543, 1548.) The court held that the anti-SLAPP statute applied because the
alleged conspiratorial statements “about how to testify in upcoming depositions in a
pending lawsuit” were “made in connection with an issue under consideration by a
judicial body.” (Haight Ashbury Free Clinics, at p. 1548.) The court acknowledged that
most of the specific acts alleged as the basis for the plaintiff’s claim constituted
nonprotected activity and were not subject to the anti-SLAPP statute but “the mere fact
that there are numerically far fewer allegations of protected wrongdoing than there are
allegations of nonprotected wrongdoing does not mean that the allegations of protected
activity are merely incidental to either the causes of action of the nonprotected activity.”
(Haight Ashbury Free Clinics, at p. 1553.)
Here, unlike the situation in Haight Ashbury Clinics, Tour-Sarkissian’s claims
against Sagonowsky are not based on any act or statement by Sagonowsky “in connection
with an issue under consideration by a judicial body.” (See Haight Ashbury Free Clinics,
supra, 184 Cal.App.4th at p. 1548.) The FACC does not allege that Sagonowsky’s
misrepresentations related to any upcoming depositions, testimony, or any other
petitioning behavior. Sagonowsky was not sued for “any written or oral statement or
writing” made before a judicial proceeding or made in connection with an issue under
consideration or review by a judicial body. (§ 425.16, subd. (e).) Instead, Sagonowsky’s
liability arose from her failure to pay her attorney bills and costs after she promised to
pay them with allegedly no intent to pay them. The injury, according to the FACC, was
that Tour-Sarkissian was deprived of its fees and costs expended on Sagonowsky’s behalf
and was deprived “of the ability to seek employment by paying clients[.]” Thus, the
FACC does not attempt to impose liability on Sagonowsky for protected and
nonprotected conduct. The FACC alleges liability solely on nonprotected conduct.
14
In addition to Haight Ashbury Free Clinics, Sagonowsky asserts that Taheri,
supra, 160 Cal. App. 4th 482 and Tuszynska, supra, 199 Cal. App. 4th 257 support her
position. Both of these cases, however, are distinguishable from the present case.
In Taheri, supra, 160 Cal. App. 4th 482, a law firm alleged that an attorney, Neil C.
Evans, induced the client to terminate his relationship with the firm by promising the
client that he would be able to enforce a settlement agreement on behalf of the client. (Id.
at pp. 485-486.) The firm had advised the client that the settlement agreement was
unenforceable because it had been repudiated. (Id. at p. 486.) The appellate court held
that the commercial speech exception did not apply and rejected the law firm’s argument
that the lawsuit did not arise from protected activity but from Evans’s improper
solicitation of a client. (Id. at pp. 489-490.) The appellate court held that the anti-SLAPP
statute applied because the complaint “plainly shows it arose from Evans’s
communications with [the client] about pending litigation, and from Evans’s conduct in
enforcing the settlement agreement on [the client’s] behalf.” (Taheri, at p. 489.) The
plaintiff’s claims were based on allegations that Evans improperly solicited the law firm’s
client and the court concluded that “this is a case in which legal advice to a specific client
on a pending matter has occurred contemporaneously with the alleged solicitation of the
client.” (Id. at p. 492.)
In Taheri, the conduct underlying the pleading was the advice to a prospective
client about settling a lawsuit. (Taheri, supra, 160 Cal.App.4th at pp. 486, 489-490.) In
contrast, here, Tour-Sarkissian’s claims are not based on any statements or
recommendations about actions to be taken in pending litigation. As already explained,
Sagonowsky’s solicitation, according to the pleading, was to induce Tour-Sarkissian to
sign the retainer agreement and the injury was not based on any protected activity; the
communications concerning the pending lawsuit were incidental.11
11 We need not consider Tour-Sarkissian’s argument that the holding in Taheri is
limited to situations where a third party sues on the basis of an attorney-client
communication.
15
In Tuszynska, supra, 199 Cal. App. 4th 257, a female attorney who provided legal
services to members of a sheriffs’ association under a prepaid legal services plan brought
an action for gender discrimination against the sheriffs’ association, its prepaid legal
services plan, and a former plan administrator contending that she received fewer case
assignments than male attorneys with less experience. (Id. at p. 261.) The Fourth
District reversed the trial court’s denial of the defendants’ special motion to strike and
concluded that the trial court had improperly “conflate[d] defendants’ alleged injury-
producing conduct—their failure to assign new cases to plaintiff . . . —with the unlawful,
gender-based discriminatory motive plaintiff was ascribing to defendants’ conduct—that
plaintiff was not receiving new assignments or continued funding because she was a
woman.” (Id. at p. 268.) The court stated that “defendants’ attorney selection and
litigation funding decisions, and any communications made in connection with those
decisions, constitute protected speech and petitioning activities.” (Ibid.) The court
concluded that plaintiff’s gender discrimination claims were “based squarely on
defendant’s attorney selection and litigation funding decisions themselves, and,
concomitantly, communications defendants made in connection with making those
decisions.” (Id. at p. 269.) The court added, “Plaintiff’s gender discrimination claims
would have no basis in the absence of defendants’ attorney selection and litigation
funding decisions themselves. Thus here, defendants’ selection and funding decisions
constitute the gravamen, principal thrust, and core injury-producing conduct underlying
plaintiff’s gender discrimination claims.” (Id. at p. 270.)
Sagonowsky asserts that similarly, here, Tour-Sarkissian is attempting to create a
false dichotomy between Sagonowsky’s protected activity in making statements about
her pending litigation and her promises to pay the attorney fees and costs.
The present case is clearly distinguishable from Tuszynska. The plaintiff’s gender
discrimination claims in Tuszynska were based on the defendant’s conduct related to how
the defendants selected attorneys to represent the sheriff’s association and how the
defendants decided whether to fund litigation on behalf of the sheriff’s association.
(Tuszynska, supra, 199 Cal.App.4th at p. 268.) In contrast, here, the principal thrust of
16
the misconduct alleged in the FACC is the conduct inducing Tour-Sarkissian to represent
Sagonowsky in her civil and divorce actions.
When granting the special motion to strike, the trial court in the present case
interpreted Tuszynska as holding that whenever claims are based on communications
related to the hiring of attorneys, those claims fall under section 425.16. This is
incorrect. An action based on communications during an interview to hire an attorney is
not always protected under the anti-SLAPP statute. “ ‘ “[T]he nature or form of the
action is not what is critical but rather that it is against a person who has exercised certain
rights.” ’ ” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 739.) Here, the
causes of action were based on misrepresentations related to inducing the law firm to
represent Sagonowsky in her civil and family actions. As already stressed, the fraud was
not based on any “act in furtherance of” Sagonowsky’s “ ‘right of petition or free speech
under the United States or California Constitution in connection with a public issue[.]’ ”
(§ 425.16, subd. (e).)
Sagonowsky maintains that section 425.16 should apply because the FACC
operated to chill Sagonowsky’s lawsuit against Tour-Sarkissian for malpractice. Even if
we were to presume that the FACC did discourage or chill Sagonowsky from pursuing
her malpractice claim against Tour-Sarkissian, this is immaterial to the question whether
the anti-SLAPP statute applies. The purpose of the anti-SLAPP statute is “to dispose of
lawsuits that are brought to chill the valid exercise of constitutional rights” of petition or
free speech (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1055-1056), in order to
encourage participation in matters of public significance and prevent meritless litigation
designed to chill the exercise of First Amendment rights. (§ 425.16, subd. (a).) The
purpose of section 425.16 is not related to malpractice actions.
Accordingly, we reverse the trial court’s granting of Sagonowsky’s special motion
to dismiss. Since we conclude that the causes of action did not arise from protected
activity under the anti-SLAPP statute, we need not decide whether Tour-Sarkissian
established a probability of prevailing on the merits.
17
III. White’s Appeal
The trial court denied White’s special motion to strike the 12th through 15th
causes of action of the FACC.12 The trial court found that these causes of action were
based on White’s statements made in order to retain Tour-Sarkissian as counsel and “did
not ‘occur in connection with “an issue under consideration or review” in the [underlying
actions],’ ” and cited Blackburn, supra, 116 Cal.App.4th at page 677. White argues that
his communications to Tour-Sarkissian arose from protected speech and petitioning
activity.
The causes of action against White were based on alleged misrepresentations he
made to induce Tour-Sarkissian to provide legal representation for Sagonowsky. He
allegedly made statements that Sagonowsky would reimburse the law firm for the costs
that were advanced by Tour-Sarkissian and that she would pay the attorney fees. The
causes of action also alleged that he made false statements about the civil and divorce
actions in order to get Tour-Sarkissian to agree to represent Sagonowsky in these actions.
For the same reasons that we have concluded that the anti-SLAPP statute does not cover
the claims against Sagonowsky, we hold that Tour-Sarkissian’s causes of action against
White did not arise from protected speech. These claims are based on alleged
misrepresentations designed to get Tour-Sarkissian to agree to represent Sagonowsky in
the civil and divorce actions and thus the gravamen of the FACC was not based on
White’s protected conduct. As already discussed earlier with regard to Sagonowsky’s
anti-SLAPP argument, to the extent these causes of action included communications
related to pending litigation, these communications were incidental.
White notes that he is an attorney and declares that Tour-Sarkissian knew he was
an attorney when the parties met. He claims that the purpose of the meetings was to
advance Sagonowsky’s interests in the divorce and civil action. He disputes Tour-
Sarkissian’s characterization of the parties’ meetings as solicitation or contract
negotiations and claims that they discussed substantive legal issues. He insists that any
12
Theses causes of action were intentional and negligent misrepresentation,
concealment, and promissory fraud.
18
negotiations were incidental to the substantive legal issues that were discussed. White
contends that the lower court improperly cited to Blackburn, supra, 116 Cal. App. 4th 670
when it ruled that White’s statements to Tour-Sarkissian were made in order to retain
Tour-Sarkissian as counsel and were not in connection with any pending litigation.
The parties might have discussed substantive legal issues at their meetings but, as
already discussed, the injury was based on soliciting Tour-Sarkissian to sign the retainer
agreements and was not based on protected activity. Private business relationships, such
as an agreement regarding fees, are not subject to the anti-SLAPP statute. (Blackburn,
supra, 116 Cal.App.4th at pp. 676-677.)
In Blackburn, supra, 116 Cal. App. 4th 670, the Court of Appeal held that the
gravamen of the plaintiff’s fraud cause of action was the defendant’s bidding up the price
of real property without the intent to perform, resulting in plaintiff’s paying a higher price
for the property at a sheriff’s auction. (Id. at p. 676.) The court explained that the
“ministerial event of a sheriff’s sale or auction simply does not concern an issue under
review or determine some disputed matter as contemplated under the anti-SLAPP law”
and was merely a “business dealing or transaction[.]” (Id. at pp. 676-677.)
Similarly, here, Tour-Sarkissian’s causes of action against White did not concern
an issue under official review that required a determination to be based upon the exercise
of White’s free speech or petition rights. Rather, White and Tour-Sarkissian engaged in
business dealings or transactions of a contractual nature, leading Tour-Sarkissian to agree
to represent Sagonowsky.
In arguing that Blackburn is distinguishable from the present case, White points
out that the sheriff’s auction in Blackburn came after litigation had concluded while
Sagonowsky’s divorce and civil actions were pending when he made the statements to
Tour-Sarkissian. Secondly, he maintains that the statements made by the defendant in
Blackburn were in the context of a “ministerial event” while, according to White, White
was advising Sagonowsky regarding her selection of a law firm and the handling of the
litigation. Thirdly, he notes that neither the plaintiff nor the defendant was an attorney in
Blackburn, while he is an attorney.
19
White’s attempts to distinguish Blackburn from the present case are unavailing. It
is immaterial that the litigation in the present case was pending while the litigation in the
prior case had concluded. Section 425.16, subdivision (e) does not require the
communications be connected to “pending” litigation but simply requires the
communications be “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[.]” (§ 425.16, subd. (e)(2).)
In his attempt to distinguish the present case from Blackburn and repeatedly in his
arguments that the anti-SLAPP statute applies, White stresses that he is an attorney, that
Tour-Sarkissian knew at the first meeting that he was an attorney, that he advised
Sagonowsky about her divorce and civil actions, that he advised Sagonowsky regarding
her selection of counsel and the transition of the litigation to Tour-Sarkissian, that he
provided information about the family and divorce actions, and that he gave Tour-
Sarkissian pleadings and evidence in the divorce and civil actions. He claims that his
communications concerned substantive legal issues and thus they were connected with
litigation and covered by section 425.16, subdivision (e)(2).
The foregoing argument has little merit. The fact that White is an attorney is not
dispositive and does not make any claims against him protected under the anti-SLAPP
statute. “Not all attorney conduct in connection with litigation, or in the course of
representing clients, is protected by section 425.16. (Freeman v. Schack (2007) 154
Cal. App. 4th 719 [contract and tort action against attorney for representing adverse
interests in litigation not subject to the anti-SLAPP statute]; Benasra v. Mitchell
Silberberg & Knupp LLP (2004) 123 Cal. App. 4th 1179 [action against attorney for
breach of duty of loyalty arising from representation of clients with conflicting interests
not subject to the anti-SLAPP statute]; Moore v. Shaw (2004) 116 Cal. App. 4th 182
[action against estate planning attorney for participation in breach of trust not subject to
anti-SLAPP motion].” (California Back Specialists Medical Group v. Rand (2008) 160
Cal. App. 4th 1032, 1037 [failure of attorney to pay medical lien out of settlement
proceeds did not constitute protected petitioning activity because the complaint was
20
“based on the underlying controversy between private parties about the validity and
satisfaction of the liens”].) Even if White were advising Sagonowsky regarding her
selection of counsel or the transition of the litigation to Tour-Sarkissian, the FACC does
not allege any injury related to these communications and the alleged fraud is not based
on any of this advice. As already stressed, the injury is related to the signing of the
retainer agreements and Sagonowsky’s failure to reimburse Tour-Sarkissian for costs
advanced and to pay the attorney fees.
White also relies on Tuszynska, supra, 199 Cal. App. 4th 257 and Taheri, supra,
160 Cal. App. 4th 482 to argue that the anti-SLAPP statute applies. As already discussed
with regard to Sagonowsky’s special motion to strike, these cases are distinguishable and
not helpful to White. All of the references to protected activity in the causes of action
against White were collateral.
Since we conclude that the trial court correctly found that White failed to satisfy
the threshold showing that the anti-SLAPP statute applies to the claims against him, we
need not address the trial court’s finding that Tour-Sarkissian demonstrated a probability
of prevailing.
DISPOSITION
The order granting Sagonowsky’s special motion to strike Tour-Sarkissian’s 2nd,
5th, 8th, 10th, and 12th through 15th causes of action under section 425.16 is reversed.
Sagonowsky is to pay the costs of appeal.
The order denying White’s special motion to strike Tour-Sarkissian’s 12th through
15th causes of action under section 425.16 is affirmed. White is to pay the costs of
appeal.
21
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Brick, J.*
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
22