Amar v. Schuller CA2/1 ( 2014 )

Filed 6/24/14 Amar v. Schuller CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SHAOUL AMAR, B246492
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. EC059084)
v.
JEFFREY SCHULLER et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County. William D.
Stewart, Judge. Reversed.
Jeffrey S. Schuller, in pro. per.; Jeffrey S. Schuller and Jay Freedman for
Defendants and Appellants Henri Ric Schuller and Schuller & Schuller.
Michael H. Artan, for Defendant and Appellant Joseph A. Pertel.
Stone & Stone, Stanley H. Stone, for Plaintiff and Respondent.
___________________________________
A losing defendant in earlier civil litigation immediately sued his opponents’
attorneys, alleging their legal representation of his opponents breached duties owed to
him. The attorneys moved to strike the complaint pursuant to Code of Civil Procedure
section 425.16, the anti-SLAPP statute, arguing it arose from protected litigation
activity.1 The trial court denied the motion, apparently concluding the attorneys failed to
specify what portions of the complaint alleged protected activity. We reverse.
BACKGROUND
We obtain the background facts from “‘the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is based.’ (§
425.16, subd. (b).)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
Respondent Shaoul Amar alleges Henri and Jeffrey Schuller obtained his
confidential information during the course of a 20-year attorney-client relationship, and
Joseph Pertel had access to the information from the Schullers. In 2011, Pertel and the
Schullers represented Marc and Jacqueline Fronen in a lawsuit against Amar that alleged
Amar fraudulently induced the Fronens to convey real property to him. (Fronen et al. v.
Amar et al., case No. BC469858.) Amar failed to respond to the complaint, and on
January 17, 2012, the trial court entered a default judgment against him. Post-judgment
collection efforts are ongoing.
On July 31, 2012, Amar filed suit against the Schullers, their law firm, Schuller &
Schuller, and Pertel for legal malpractice, breach of fiduciary duty and intentional
infliction of emotional distress, alleging defendants used his confidential information
against him in the Fronen lawsuit. On October 12, 2012, Pertel moved to strike the
complaint pursuant to section 425.16, arguing each cause of action arose from his right to
petition the courts on behalf of the Fronens. The Schullers and Schuller & Schuller
1
Unspecified statutory references are to the Code of Civil Procedure.
SLAPP is an acronym for strategic lawsuit against public participation. (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 71-72, & fn. 1 (City of Cotati).)
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joined and filed a supporting declaration stating Amar had no attorney-client relationship
with the Schullers.
Amar opposed the motion, arguing defendants’ representation of the Fronens did
not constitute protected activity because it consisted of “conduct,” not written or oral
statements. (He did not explain how an attorney may act as legal counsel while making
no written or oral statements.) Amar further argued he would likely prevail because
Henri Schuller had represented an Amar-Fronen partnership in a number of real estate
transactions and had given Amar legal advice over the years, such that Amar “had come
to view the Schuller Firm as [his] attorneys.” Amar declared the Schullers “were privy to
ALL [his] personal issues[] and private matters,” that he “had disclosed to them much
information,” and that “such information ultimately [was] used” against him in several
lawsuits initiated by the Fronens. Brian Dozier, Amar’s business associate, also filed a
declaration in opposition to defendants’ anti-SLAPP motion, stating the Schullers
planned and executed a real estate transaction that involved himself, the Fronens and
Amar.
In reply, appellants argued Amar would not likely prevail because he had no
evidence of an attorney-client relationship between himself and appellants. On the
contrary, they argued, at his deposition Amar conceded he never had an attorney-client
relationship with Pertel, never shared confidential information with Jeffrey Schuller, and
did not know if Henri Shuller, shared his confidential information with Pertel or Jeffrey.
Further, appellants asserted Amar disclosed to them that his purpose in this suit was to
prevent appellants from representing the Fronens against him.
On November 16, 2012, the trial court denied appellants’ motions because they
failed in their papers to refer to specific portions of the four-page complaint. The court
stated it “should not be put in the position of reviewing the complaint and identifying the
paragraphs in each cause of action that meet the Defendant’s burden . . . .”
Appellants filed a timely notice of appeal.
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DISCUSSION
Appellants maintain the complaint arises from protected litigation-related activity
subject to section 425.16, and Amar has not established a probability of prevailing. We
agree.
A. Applicable Legal Principles and Standard of Review
Section 425.16 provides, “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).) “As used in this section, ‘act in furtherance of a person’s right of
petition or free speech under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or writing made before
a . . . judicial proceeding, or any other official proceeding authorized by law, (2) any
written or oral statement or writing made in connection with an issue under consideration
or review by a . . . judicial body, or any other official proceeding authorized by law . . . .”
(Id., subd. (e).) Section 425.16 “shall be construed broadly.” (Id., subd. (a).)
“‘A cause of action “arising from” defendant’s litigation activity may
appropriately be the subject of a section 425.16 motion to strike.’” [Citations.] ‘Any act’
includes communicative conduct such as filing, funding, and prosecution of a civil action.
[Citation.] This includes qualifying acts committed by attorneys in representing clients in
litigation. [Citation.].” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Communications preparatory to or in anticipation of the bringing of an action also fall
under section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1115.) The anti-SLAPP statute protects defendant attorneys from suits
brought by third parties on any legal theory or cause of action “arising from” such
protected activities. (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th
141, 154.) This includes a nonclient’s claim against someone else’s lawyer based on that
lawyer’s representation of the other party. (Id. at p. 158.)
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We review the trial court’s ruling de novo. (Grewal v. Jammu (2011) 191
Cal.App.4th 977, 988.) We evaluate an anti-SLAPP motion using a two-prong approach.
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, we
determine whether the moving party has made a threshold showing that the challenged
cause of action arises from protected activity, and if so, whether the opposing party has
established a probability of prevailing on the claim. (Navellier v. Sletten, supra, 29
Cal.4th at p. 88.) “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. 89.)
In determining whether the threshold “arising from” requirement is met, we
consider “the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b); Navellier, supra, 29 Cal.4th
at p. 89.) In doing so, we look for “the principal thrust or gravamen of plaintiff’s cause
of action.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) A
cause of action “arises from” protected litigation activity when it is based on an
attorney’s activity that was done “in furtherance of the right of petition or free speech.”
(City of Cotati, supra, 29 Cal.4th at p. 78.) To be subject to the anti-SLAPP statute the
defendant’s protected activity itself must give rise to his or her asserted liability. (Ibid.;
Navellier, supra, 29 Cal.4th at p. 92.) Furthermore, when “a cause of action alleges both
protected and unprotected activity, the cause of action will be subject to section 425.16
unless the protected conduct is ‘merely incidental’ . . . .” (Mann v. Quality Old Time
Service, Inc. (2004) 120 Cal.App.4th 90, 103.) Thus, “[w]here both constitutionally
protected and unprotected conduct is implicated by a cause of action, a plaintiff may not
‘immunize’ a cause of action challenging protected free speech or petitioning activity
from a special motion under section 425.16 by the artifice of including extraneous
allegations concerning nonprotected activity.” (Scott v. Metabolife Internat., Inc. (2004)
115 Cal.App.4th 404, 414.)
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B. The Gravamen of Amar’s Complaint
Applying the foregoing principles, we conclude protected litigation activity forms
the gravamen of the complaint. Amar alleges appellants used his confidential
information in the course of the Fronen lawsuit, which violated their confidentiality and
fiduciary duties to him. Amar alleges the attorneys’ intentional breach of these duties
caused him extreme emotional distress. All three causes of action were based on
appellants’ representation of clients in prior litigation, which constitutes activity in
furtherance of the right of petition.
Amar argues appellants’ litigation activities are not within the scope of the anti-
SLAPP statute because the complaint and prior litigation arose from an underlying
dispute between the parties. He relies on City of Cotati, supra, 29 Cal.4th 69. There,
owners of a mobilehome park sued a city to challenge the validity of a mobilehome park
rent stabilization ordinance. The city then filed an action against the mobilehome park
owners for declaratory relief, claiming the ordinance was constitutional and valid.
Owners of the mobilehome park moved to strike the city’s lawsuit under section 425.16,
arguing the city sued them only to retaliate for bringing the first claim. The Supreme
Court held the city’s action did not arise from the owner’s initial lawsuit, but rather from
the dispute underlying both actions—the constitutionality of the city’s ordinance. The
court reasoned, “the actual controversy giving rise to both actions—the fundamental basis
of each request for declaratory relief—was the same underlying controversy respecting
City’s ordinance. City’s cause of action therefore was not one arising from Owners’
federal suit. Accordingly, City’s action was not subject to a special motion to strike.”
(City of Cotati, supra, 29 Cal.4th at p. 80, fn. omitted.) The court stated, the “City’s
complaint repeatedly refers to the underlying subject matter of Owners’ federal action
(i.e., the mobilehome park rent stabilization ordinance and arguments respecting its
validity), it contains no reference to the action itself.” (Id. at p. 77.) In sum, the
gravamen of the second lawsuit in City of Cotati was the City’s dispute regarding the
ordinance, not the mobilehome park’s owners’ lawsuit.
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Here, the Fronens sued Amar for fraud in order to reclaim their property. Amar
then sued appellants based on harm caused by their representation of the Fronens. Each
of Amar’s three causes of action references the Fronen lawsuit, and none references any
other controversy between the parties. The complaint thus arises from the Fronen
litigation, not some underlying dispute between Amar and the Fronens’ attorneys.
Amar argues his causes of action are not subject to the anti-SLAPP statute because
appellants’ litigation activity is only incidental to the claims. We have held “where a
cause of action alleges both protected and unprotected activity, the cause of action will be
subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the
unprotected conduct . . . .” (Mann v. Quality Old Time Service, Inc., supra, 120
Cal.App.4th at p. 103.) Here, though Amar references business and social
communications with the Schullers in his opposition, his causes of action do not arise
from these activities. Amar’s complaint alleges appellants’ breach of their duties
occurred only when the Fronen lawsuit began. Thus, the principal thrust of claim is
appellants’ use of his confidential information in the Fronen lawsuit and this protected
litigation activity is more than incidental to the complaint. Amar may not immunize his
causes of action “by the artifice of including extraneous allegations concerning
nonprotected activity.” (Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p.
414.)
We conclude appellants made the required threshold showing that Amar’s
complaint arises from their protected litigation activity. We therefore proceed to the
second prong of the anti-SLAPP analysis.
C. Probability of Prevailing on the Merits
Under the second prong of the anti-SLAPP analysis the burden shifts to the
plaintiff, who must establish “a probability of prevailing on [his] claim[s].” (§ 425.16,
subd. (b)(1).) To establish a probability of prevailing, “‘the plaintiff “must demonstrate
that the complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts sufficient to sustain a favorable judgment.”’” (Navellier, supra, 29
Cal.4th at pp. 88-89.) We accept as true all “competent and admissible evidence.”
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(Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1236.) Even though his burden was not high, Amar failed to meet it.
Amar produced no evidence below supporting his claims, but baldly asserted he
would prevail because defendants “represented” and acted as legal counsel for him before
representing the Fronens. But Amar produced no documentation evidencing the alleged
20-year attorney-client relationship with Henri Schuller and failed to specify how or
when appellants obtained his confidential information or used it against him. Amar’s
declaration that the Schullers “represented” him was so vague and conclusory as to be
meaningless and failed to specify what confidential information was obtained or how it
was used against him. Dozier’s declaration that Henri Schuller planned and executed a
real estate transaction for the Amar-Fronen partnership did not establish that Schuller
represented Amar, obtained his confidential information, or used the information against
him in the Fronen lawsuit.
In sum, Amar made no prima facie showing of facts sufficient to sustain a
favorable judgment in an action that indisputably arose from protected activity. On the
contrary, Joseph Pertel testified that Amar conceded his purpose for a lawsuit was to
prevent appellants from representing the Fronens, making his complaint precisely the
type of lawsuit the Legislature intended to forestall. (Dixon v. Superior Court (1994) 30
Cal.App.4th 733, 741 [“SLAPP plaintiffs do not intend to win their suits; rather, they are
filed solely for delay and distraction [citation], and to punish activists by imposing
litigation costs on them for exercising their constitutional right . . . .”].) The complaint
was therefore properly stricken.
Given this ruling, we need not reach other arguments made by appellants.
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DISPOSITION
The order denying appellants’ special motion to strike under section 425.16 is
reversed, and the matter is remanded with instructions to: (1) enter an order granting the
motion, and (2) hold a hearing, following further briefing, to determine the amount of
attorney fees to which appellants are entitled under section 425.16. Appellants are
awarded their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, Acting P. J.
WILEY, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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