GRIMES, J. —
The plaintiffs in this case (David Bergstein and affiliated business entities) sued the lawyers who represented their adversaries (David Molner and others) in litigation over various financial transactions. Plaintiffs asserted that the lawyers engaged in illegal conduct when they "solicited and received ... confidential, privileged, and/or proprietary information" from plaintiffs' former attorney, and used that information "in devising the legal strategy to be employed" in the litigation against plaintiffs.
The defendant lawyers filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. The trial court granted the motion and awarded attorney fees to defendants. The court concluded the complaint arose from protected First Amendment activity; there was insufficient evidence to show defendants' conduct was illegal as a matter of law; and plaintiffs did not show a probability of prevailing on their claims, both because the statute of limitations had run and because the litigation privilege barred plaintiffs' claims.
Plaintiffs are involved in acquiring, producing and distributing motion pictures, as well as in commercial transactions in other business sectors. Their activities require the involvement of entities or individuals willing to provide financing. David Molner and entities he controlled (Aramid Entertainment Fund Limited and others (Aramid)) participated in a number of financial transactions relating to plaintiffs' film production and distribution business, making a series of loans to plaintiffs from 2007 to 2009.
In 2009, the business relationship between plaintiffs and Aramid became "highly adversarial." Molner and Aramid hired defendants — Stroock & Stroock & Lavan LLP and its partner, Daniel Rozansky, and Levene Neale Bender Yoo & Brill L.L.P. and its partners, David Neale, Irving Gross, and Beth Young — to represent them in litigation against plaintiffs. (Plaintiffs describe this as "Molner's and Aramid's war" and a "`fight to the death' litigation struggle [that] spawned numerous lawsuits" in Cal., N.Y., and elsewhere.) The Levene Neale firm was "to craft and institute involuntary bankruptcy proceedings against Plaintiffs and affiliated entities," and the Stroock firm was "to construct and implement a litigation strategy against Plaintiffs and affiliated entities that involved filing a series of lawsuits at or about the same time as the involuntary bankruptcy proceedings were initiated."
Attorney Susan Tregub was plaintiff Bergstein's lawyer for over a decade, and she represented the other plaintiff entities as well. She was intimately familiar with and had access to plaintiffs' confidential, privileged and proprietary information, including core operating and financial documents, electronic records and other records, and was the custodian of critical documents related to plaintiffs. She effectively served as plaintiffs' general counsel, maintaining an office in the same suite with some of the plaintiff companies, and was paid a monthly retainer.
In late 2009, Ms. Tregub and plaintiff Bergstein had a falling out over fees, and Ms. Tregub "threatened [Mr. Bergstein] that `she would bring [him] down.'"
On March 16, 2010, Aramid, represented by the Stroock firm, sued plaintiff Bergstein for breach of personal guarantees given to secure loans from Aramid, and at about the same time, the Levene Neale firm, on behalf of
Ms. Tregub, despite her previous (and to some extent continuing) representation of plaintiffs, began working for Aramid and David Molner in November or December 2009. She "coordinated and organized" the filing of the involuntary bankruptcy proceedings, and she assisted Aramid in the litigation against plaintiffs "arising out of loan transactions in which she had been directly involved even though Aramid's interests were clearly directly adverse" to plaintiffs' interests.
On March 25, 2010, Mr. Bergstein and other plaintiffs sued Ms. Tregub for breach of fiduciary duty and professional negligence, ultimately (in Aug. 2012) obtaining a multimillion dollar verdict and punitive damages.
On April 20, 2012, two years or so after filing suit against Ms. Tregub, plaintiffs filed this lawsuit against defendants, alleging causes of action for aiding and abetting Ms. Tregub's breach of fiduciary duty; interference with contractual relations and prospective economic advantage; and unjust enrichment. In addition to the facts we have just recited and other colorful but irrelevant matters, the complaint alleged, by way of introduction, that: "In the course of their representation [of Aramid]," defendants "knowingly used the confidential, privileged, and/or proprietary information of Plaintiffs and affiliated entities to carry out a litigation attack" on plaintiffs. Defendants "solicited and received this confidential, privileged, and/or proprietary information from Susan Tregub, Plaintiffs' former attorney." Ms. Tregub "admittedly concealed material evidence at Defendants' direction."
"During the period prior to the filing of legal proceedings against [plaintiffs], Defendants received a steady flow of confidential, privileged, and/or proprietary information [from] Tregub to assist them in their efforts. They exchanged drafts of pleadings with her, e-mailed back and forth about various issues, and participated in telephone conference calls and in person meetings while Tregub was present.... Defendants knowingly received from Tregub confidential, privileged, and/or proprietary information about Bergstein, his business dealings, and the various entities through which he conducted business. Defendants knowingly used Tregub's assistance in devising the legal strategy to be employed against Bergstein .... They used Tregub to obtain documents, identify witnesses, and solicit potential creditors...."
"Defendants' actions have caused Plaintiffs to be involved in lengthy, protracted, contentious, and expensive legal proceedings.... [T]he litigations, litigation fees and costs, resources devoted to the litigations, and
The substantive allegations of the complaint appear in paragraphs 45 through 145 of the complaint. Part I allegations (¶¶ 45-53) describe the background giving rise to the underlying litigation (described ante). Part II and part III allegations (¶¶ 54-110) describe, respectively, defendants' preparation for "a litigation war" against plaintiffs (¶¶ 54-71) and defendants' improper use of plaintiffs' confidential information, in preparation for the litigation and after it was filed (¶¶ 72-110). Part IV allegations describe plaintiffs' lawsuit against Ms. Tregub for professional negligence and breach of fiduciary duty and defendants' resistance to discovery demands in that lawsuit (¶¶ 111-120). Part V allegations allege defendants' knowledge of Ms. Tregub's representation of plaintiffs (¶¶ 121-127), and part VI allegations describe plaintiffs' damages (¶¶ 128-145).
We begin with a sampling of the substantive allegations of the complaint. Plaintiffs allege: "Aramid and Defendants began working with Tregub to initiate legal proceedings against Plaintiffs beginning in November or December 2009." This involved two projects, a "master complaint" against Mr. Bergstein and several affiliated entities and the involuntary bankruptcy petitions. Both projects involved defendants' "knowing solicitation, receipt, and use" of plaintiffs' confidential, privileged, and/or proprietary information.
"Prior to December 2009, Stroock and Rozansky began drafting the Master Complaint." Ms. Tregub revised the draft, and "[b]y working on and assisting with the preparation of the Master Complaint, Tregub provided confidential... information about Plaintiffs to Stroock and Rozansky," who "took and used this confidential ... information without Plaintiff's consent ...."
"During the preparation of the Master Complaint, Stroock and Rozansky ... invited Tregub to attend strategy sessions," at which they "strategized about ways to put maximum pressure on Plaintiffs including by the litigation contemplated in the Master Complaint and parallel bankruptcy proceedings."
Stroock and Rozansky used the master complaint containing plaintiffs' confidential information "as the basis for the complaints they intended to file"; solicited advice and support from the Levene Neale defendants "regarding the planned litigation for Aramid"; and "[u]ltimately, Stroock and Rozansky, on behalf of Aramid and working in conjunction with Tregub, filed multiple lawsuits in federal and state court against certain Plaintiffs."
"As Stroock and Rozansky knew, the factual information supporting the claims that were asserted ... were derived from the Master Complaint that Tregub ... and Defendants drafted ...."
Ms. Tregub also "worked hand-in-hand" with defendants Levene Neale and its partners "to prepare petitions, motions, and other papers necessary to force the entities affiliated with Bergstein into involuntary bankruptcy." The complaint then describes the consultations and communications between Ms. Tregub and the Levene Neale firm, and alleges the firm's solicitation and use of the information Ms. Tregub provided, including preparation of a master strategy memorandum, identification of entities to be placed in bankruptcy, and communications on that subject. In addition, the Levene Neale firm "orchestrated the improper purchase of a claim against entities affiliated with Plaintiffs," for use in the involuntary bankruptcy proceedings, by working with Ms. Tregub and using confidential information she provided; the complaint gives examples of communications on this topic.
A Levene Neale partner worked with and directed Ms. Tregub in contacting former employees of plaintiff-affiliated entities to prepare declarations in support of an emergency order appointing a trustee. Levene Neale filed the bankruptcy petitions and motion; communicated with Ms. Tregub on strategy; and so on. The complaint describes other efforts by the Stroock firm, involving involuntary bankruptcy proceedings in other jurisdictions, to acquire claims against another company to which Mr. Bergstein had lent millions of dollars, and to "scour[] the globe to locate other potential creditors" of that company.
The complaint also alleges that after months of participating in communications involving Ms. Tregub, defendants attempted to hide their conduct by forwarding e-mails to and from Ms. Tregub through an intermediary, using a "pivot and pass" strategy, with Ms. Tregub proving information to Aramid, and Aramid forwarding the information to defendants.
Defendants "continued to assist Tregub in breaching her duties even after [the various lawsuits] were filed."
The complaint then describes the lawsuit plaintiffs filed against Ms. Tregub on March 25, 2010, for professional negligence and breach of fiduciary duty (the Tregub case); their requests for discovery from Ms. Tregub and subpoenas for documents from defendants; and defendants' "repeated refusals ... to abide by their discovery obligations in the Tregub Case...." The complaint alleges that when defendants began working with Ms. Tregub, they were
The complaint describes plaintiffs' "nearly insurmountable damage and injury to their business operations since the filing" of the bankruptcy proceedings and the loan litigation, and alleges their "value and businesses are diminished by" and Bergstein lost "the benefit of his Miramax deal because of" the ongoing litigation.
Defendants filed special motions to strike the complaint under the anti-SLAPP statute. Their motions alleged plaintiffs' claims were based on defendants' conduct in filing litigation; filing litigation is protected activity under the anti-SLAPP statute; and plaintiffs could not prevail on their claims because the claims were barred both by the statute of limitations and by the litigation privilege.
Plaintiffs' opposition contended their claims did not arise from protected activity. They asserted that the complaint alleged defendants participated in the theft of confidential and privileged documents and information, and in the unlawful purchase of claims for the purpose of forcing an involuntary bankruptcy, and that this was nonlitigation conduct not protected under the anti-SLAPP statute, "separate and distinct from [defendants'] ultimate filing of any litigation." Plaintiffs asserted their claims "are based on the `other conduct' [rather than statements made in connection with litigation] and their relation to litigation is `merely incidental.'" The gravamen of their complaint, they contended, was "Tregub's blatant disregard of her duty of loyalty to her clients and theft of privileged and confidential information — and, of course, Defendant's participation in those unlawful acts."
Plaintiffs' opposition included more than 2,000 pages of documents, including dozens of e-mail communications among Ms. Tregub, Mr. Molner and various defendants, and asserted that defendants' conduct was not protected by the anti-SLAPP statute because the conduct was illegal as a matter of law. On this last point, the entirety of plaintiffs' argument was this: "Here, Defendants engaged in conduct that they knew was illegal. They used Tregub's inside information to buy bankruptcy claims despite knowing that to do so was unlawful. See, e.g., 11 U.S.C. app. § 1003 [(Fed. Rules of Bankr. Proc., rule 1003)] (improper to purchase claims to force involuntary bankruptcy). They offer no defense to their active participation in illegal activities, and the anti-SLAPP statute offers no protection for Defendants' participation in illegal activities." In any event, plaintiffs contended, they showed a likelihood of prevailing on the statute of limitations and litigation privilege defenses asserted by defendants.
In this case, plaintiffs first contend that, as a threshold matter, the anti-SLAPP statute does not apply because defendants engaged in unlawful acts that are not protected by the anti-SLAPP statute. They further contend that "[c]laims arising from aiding and abetting breach of fiduciary duties" are not subject to the anti-SLAPP statute, "even if they occur in the context of litigation." They contend their claims are not barred by the statute of limitations or the litigation privilege, and they should have been permitted to amend their complaint to "rais[e] non-protected claims."
We find no merit in any of plaintiffs' contentions, and address them in turn.
Statements made in litigation, or in connection with litigation, are protected by Code of Civil Procedure section 425.16, subdivision (e). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [81 Cal.Rptr.2d 471, 969 P.2d 564].) Courts have taken a fairly expansive view of what
When a cause of action involves both protected and unprotected activity, the court looks to the gravamen of the claim to determine if the claim is a SLAPP. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673 [35 Cal.Rptr.3d 31] (Peregrine Funding).) Protected conduct which is merely incidental to the claim does not fall within the ambit of Code of Civil Procedure section 425.16. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [6 Cal.Rptr.3d 494]; Peregrine Funding, supra, at p. 672.) Determining the gravamen of the claims requires examination of the specific acts of alleged wrongdoing and not just the form of the claim. (Peregrine Funding, supra, at p. 671.)
Plaintiffs first argue that the anti-SLAPP statute does not apply because defendants' conduct was illegal as a matter of law, relying on Flatley v. Mauro (2006) 39 Cal.4th 299 [46 Cal.Rptr.3d 606, 139 P.3d 2] (Flatley).
In Flatley, the court held that "a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint." (Flatley, supra, 39 Cal.4th at p. 305.) The court stated the rule this way: where "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320.) In Flatley, an attorney's communications to the plaintiff (a demand letter and subsequent telephone calls) "constituted criminal extortion as a matter of law" and so were unprotected. (Id. at pp. 305, 332.) The evidence of the defendant's communications was uncontroverted. (Id. at p. 329.) The court emphasized that its conclusion that the defendant's communications constituted criminal extortion as a matter of law was "based on the specific and extreme circumstances of this case." (Id. at p. 332, fn. 16.)
Plaintiffs contend that "conclusive evidence that a violation of any state statute has occurred is sufficient to trigger application of the illegality
In Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644 [107 Cal.Rptr.3d 294] (Mendoza), a panel of this court expressly rejected the plaintiff's contention "that every violation of a statutory prohibition necessarily removes the violator out from under the protective umbrella of the anti-SLAPP statute." (Id. at p. 1653.) Mendoza explained: "Our reading of Flatley leads us to conclude that the Supreme Court's use of the phrase `illegal' was intended to mean criminal, and not merely violative of a statute. First, the court in Flatley discussed the attorney's underlying conduct in the context of the Penal Code's criminalization of extortion. Second, a reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the constitutional interests which the statute is designed to protect. As [the defendant] correctly observes, a plaintiff's complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory prohibition, giving rise to liability, and we decline to give plaintiffs a tool for avoiding the application of the anti-SLAPP statute merely by showing any statutory violation." (Mendoza, supra, 182 Cal.App.4th at p. 1654; see id. at p. 1648 [the defendant's republishing to its clients of information disclosed on "Megan's Law" Web site was protected activity, notwithstanding statutory prohibitions on the use of such information].)
Other courts have taken the same view, and Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153 [131 Cal.Rptr.3d 478] (Fremont) is particularly germane. In that case, the plaintiff argued that statements by the
For similar conclusions, see Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 971 [125 Cal.Rptr.3d 220] (Price) (rejecting claim that a union's allegedly defamatory statements in flyers were not covered under the anti-SLAPP statute because defamatory speech is illegal; "[t]he term `illegal' in Flatley means criminal, not merely violative of a statute"); see also Cross v. Cooper (2011) 197 Cal.App.4th 357, 390, 388 [127 Cal.Rptr.3d 903] ("even if [the plaintiff] conclusively demonstrated that [the defendant's] disclosure [of information on the location of a registered sex offender] was unauthorized as a matter of law, under Mendoza, that unauthorized, but noncriminal, conduct would not preclude anti-SLAPP protection"); Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [122 Cal.Rptr.3d 73] ("We understand Flatley to stand for this proposition: when a defendant's assertedly protected activity may or may not be criminal activity, the defendant may invoke the anti-SLAPP statute unless the activity is criminal as a matter of law."); G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616 [110 Cal.Rptr.3d 559] (failure to comply with rule 1.20 of the Cal. Rules of Court "is not the type of criminal activity addressed in ... Flatley"); Cabral v. Martins (2009) 177 Cal.App.4th 471, 481 [99 Cal.Rptr.3d 394] (the defendant attorneys' actions in probate proceedings and litigation defense "were neither inherently criminal nor otherwise outside the scope of normal, routine legal services"; even if their actions "had the effect of defeating or forestalling [the plaintiff's] ability to execute her judgment for child support, thereby (according to [the plaintiff]) violating the child support evasion statutes, this is not the kind of illegality involved in Flatley").
Plaintiffs resist the conclusion in the post-Flatley cases, relying on Soukup, supra, 39 Cal.4th 260, a decision filed the same day as Flatley. Soukup involved the then recently enacted SLAPPback statute (Code Civ. Proc., § 425.18), and the court said that an illegal act "is an act `[f]orbidden by law,'" and that the term "illegal," as used in the SLAPPback statute, was not
The courts that subsequently decided Fremont, Mendoza, Price and the other pertinent authorities, however, did not get this "signal." That is because the SLAPPback statute is a very different law with a very different purpose, as Soukup itself makes clear. A "SLAPPback" is a malicious prosecution or abuse of process lawsuit that arises from the filing or maintenance of an earlier cause of action that has been dismissed as a SLAPP. The Legislature expressly stated "that a SLAPPback cause of action should be treated differently ... from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature's intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP ... litigation and by its restoration of public confidence in participatory democracy." (Code Civ. Proc., § 425.18, subd. (a).)
As Soukup points out, Code of Civil Procedure section 425.18 "treats SLAPPbacks differently from ordinary malicious prosecution actions in two ways. First, it makes inapplicable to special motions to strike a SLAPPback certain procedures that would normally apply to such motions and sets forth different procedures." (Soukup, supra, 39 Cal.4th at pp. 281-282.) After describing these differences, the court continued: "The import of these provisions is to stack the procedural deck in favor of the SLAPPback plaintiff confronted with a special motion to strike."
It was in this context that the Soukup court observed that the term "illegal as a matter of law" included statutory violations that were not criminal (in Soukup, a Lab. Code violation was at issue). Not only was the context different — SLAPPback suits rather than SLAPP suits — but also the court was
Further, Soukup tells us that, in SLAPPback cases, the "burden of establishing that the underlying action was illegal as a matter of law" is the plaintiff's burden. (Soukup, supra, 39 Cal.4th at p. 286.) And, in demonstrating the illegality, "the plaintiff must identify with particularity the statute or statutes violated by the filing and maintenance of the underlying action. [Citation.] This requirement of identifying a specific statute ... prevents a plaintiff from advancing a generalized claim that a defendant's conduct was illegal ..." and "provides notice to both the defendant and the court about the particular statute or statutes the defendant is alleged to have violated as a matter of law so as to allow the defendant to intelligibly respond to, and the court to assess, the claim. Additionally, ... the plaintiff must show the specific manner in which the statute or statutes were violated with reference to their elements. A generalized assertion that a particular statute was violated by the filing or maintenance of the underlying action without a particularized showing of the violation will be insufficient to demonstrate illegality as a matter of law." (Soukup, supra, 39 Cal.4th at p. 287.)
Plaintiffs' opposition to the special motion to strike did not comply with Soukup's requirement that plaintiffs "provide[] notice to both the defendant and the court" as to the particular statute they asserted defendants violated, "so as to allow the defendant to intelligibly respond to, and the court to assess, the claim."
We think it fair to assume that had plaintiffs provided the notice required by Soukup in their opposition papers, defendants may have disputed one or another element of the claim, such as whether they "acted with the intent of facilitating the commission" of Ms. Tregub's violation of the statute. (See Gerard v. Ross (1988) 204 Cal.App.3d 968, 983 [251 Cal.Rptr. 604] [articulating the knowledge required for aiding and abetting liability; "[a] defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he or she knew that a tort had been, or was to be, committed, and acted with the intent of facilitating the commission of that tort"].) And certainly if defendants had disputed any element of the claim they aided and abetted a violation of Business and Professions Code section 6068, no conclusion could be drawn, as a matter of law, that their conduct was illegal. (Flatley, supra, 39 Cal.4th at p. 316 ["If ... a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits."]; Birkner v. Lam (2007) 156 Cal.App.4th 275, 285 [67 Cal.Rptr.3d 190] ["`[C]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage ... simply because it is alleged to have been unlawful or unethical.'"].)
In short, Soukup does not help plaintiffs here. Its definition of illegality applied to the SLAPPback statute. And even if Soukup's broader definition of "illegal[ity] as a matter of law" were appropriate for application in the first prong of a SLAPP analysis, it would be improper to apply it here, where plaintiffs failed to give the "notice to both the defendant and the court" of the particular statutory violation, as expressly required by Soukup. (Soukup, supra, 39 Cal.4th at p. 287.)
In sum, Soukup does not advance plaintiffs' claim of illegality, and the authorities after Flatley reject it.
Plaintiffs next argue that, apart from the illegality claim, their claims do not arise from protected activity. They articulate their contention this way: "Even though the background of this lawsuit is the litigation between Molner and Bergstein, the defendants here are not being sued because they are Molner's litigation counsel or for any written or oral statement they made in a judicial proceeding. Rather, they are being sued for the unprotected conduct of aiding and abetting the breach of Tregub's fiduciary duties to [plaintiffs], for receiving confidential and privileged information belonging to [plaintiffs], for interfering with Tregub's contractual obligation to [plaintiffs] to maintain their confidences, and for interfering with [Bergstein's] prospective economic advantage."
In short, in Coretronic, the lawsuit arose from the law firm's concealment of its representation of E&S while obtaining the plaintiff's sensitive information, not from the law firm's protected activity representing their clients in pending or threatened litigation. (Coretronic, supra, 192 Cal.App.4th at p. 1392.) As we said there, "it is not [the law firm's] advocacy that is the target of the complaint," but rather the fact of the law firm's dual representation that was the basis for the plaintiffs' claims of concealment and fraud. (Id. at p. 1392.) In this case, by contrast, it is precisely defendants' advocacy on behalf of their clients in the loan and bankruptcy litigation that forms the basis for all of plaintiffs' causes of action.
Peregrine Funding explains the point nicely: "Plaintiffs ... argue the fundamental basis or gravamen of their claims rests in [the defendant law firm's] breaches of duty and not its petitioning activity. But the fact is that some of the alleged actions constituting these breaches of duty involved petitioning activity the firm undertook on behalf of its client.... [S]ome of the specific conduct complained of involves positions the firm took in court, or in anticipation of litigation.... We cannot conclude these allegations of classic petitioning activity are merely incidental or collateral to plaintiff's claims against [the law firm]." (Peregrine Funding, supra, 133 Cal.App.4th at p. 673; see id. at p. 672 [law firm "orchestrated the bankruptcies of the entity-plaintiffs and then, after it withdrew from their representation, selectively responded to a discovery request by withholding documents that would have been harmful to ... themselves"; these acts "appear to constitute [protected conduct] in that they were litigation tactics the firm employed to benefit its client[']s position in an ongoing lawsuit"].)
Here, unlike any of the breach of loyalty cases, the "activity that gives rise to [defendants'] asserted liability" (Navellier v. Sletten, supra, 29 Cal.4th at p. 92, italics omitted) is defendants' conduct in receiving and using confidential information to prepare for and prosecute litigation against plaintiffs. In the complaint's own words, defendants "knowingly used the confidential, privileged, and/or proprietary information of Plaintiffs and affiliated entities to carry out a litigation attack on Plaintiffs and affiliated entities." Defendants' litigation activities are at the core of plaintiffs' claims. Clearly those claims arise from protected activity within the meaning of the anti-SLAPP statute.
Plaintiffs next contend they have in any event shown a probability of prevailing on their claims. They point out that under this second prong of the anti-SLAPP statute, they need only present evidence that, if believed, would be sufficient to establish a prima facie case and sustain a judgment in their favor. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) Defendants assert, however, that plaintiffs cannot prevail because their claims are barred as a matter of law, both by the litigation privilege and by the statute of limitations. We agree with both points.
To effect its purposes — access to the courts without fear of later harassment by derivative tort actions, encouraging open communication and zealous advocacy, promoting complete and truthful testimony, giving finality to judgments, and avoiding endless litigation — the litigation privilege "is absolute and applies regardless of malice," and "`has been given broad application.'" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063 [39 Cal.Rptr.3d 516, 128 P.3d 713].)
In a two-and-a-half page argument, plaintiffs contend their claims are not barred by the litigation privilege "because the complaint does not challenge defendants' communicative acts," but rather challenges "the lawyers' non-communicative conduct of aiding and abetting Tregub's breach of fiduciary duty and facilitating Tregub's breach of contract with [plaintiffs]." This contention contains the same flaw infecting plaintiffs' assertion that their claims do not arise from protected activity: the complaint itself plainly demonstrates otherwise. Notably, nowhere in plaintiffs' argument do they provide record citations for defendants' "non-communicative conduct."
Plaintiffs tell us that two cases are "instructive." One is Kimmel v. Goland (1990) 51 Cal.3d 202 [271 Cal.Rptr. 191, 793 P.2d 524] (Kimmel) and the
Neither of these cases assists the plaintiffs here, because they do not identify any of defendants' conduct that was not a communication made in a judicial proceeding (or prior thereto) to achieve the objects of the litigation. Simply claiming that "aiding and abetting Tregub's breach of fiduciary duty and facilitating Tregub's breach of contract" is "non-communicative conduct" does not make it so.
In short, defendants have established all the elements necessary to assert the litigation privilege. As the trial court pointed out, plaintiffs' claims are based on allegations that defendants solicited and used confidential information for the purpose of filing various actions against plaintiffs. The complaint expressly alleges communicative activity throughout. These communicative activities of counsel were made in or in anticipation of judicial proceedings, and were plainly made "to achieve the objects of the litigation" and had "some connection or logical relation to the action." (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) Consequently, the litigation privilege applies to bar plaintiffs' claims.
Plaintiffs add a final paragraph to their argument on this point, quoting from Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1149 [57 Cal.Rptr.2d 284], where the court held that the litigation privilege should not be extended to "`litigating in the press.'" (See id. at p. 1139 [defendants' statements at a
While plaintiffs do not cite to the record in their argument, we presume they are referring to an allegation in the introductory section of the complaint, where they allege that "Stroock partner and well known entertainment transactional [lawyer] Schuyler Moore even bragged to the press that his clients, Aramid and Molner, and his firm would stop at nothing to kill Bergstein's other business ventures — specifically his efforts to arrange for the purchase and sale of Miramax from Disney." (In their opposition, defendants presented an e-mail from a Bloomberg News reporter to a lawyer involved in the Miramax acquisition, saying that "Schuyler Moore will be quoted saying that creditors of Mr. Bergstein's companies would block any attempt to acquire the film studio [(Miramax)].")
With that exception, there is nothing in the complaint about any statements by any of defendants to the press, much less any false statements. Nor is it clear that the statement in the reporter's e-mail is tortious. The complaint alleges there were many negative articles in the press, written by a reporter who spoke with Mr. Molner and Ms. Tregub, that damaged Mr. Bergstein, and that "Tregub communicated with reporters and shared Plaintiffs' and affiliated entities' confidential, privileged, and/or proprietary information long before any litigation was filed." But these are not allegations relating to defendants. In short, under Rothman v. Jackson, the litigation privilege would not shield defendants from liability based on making false statements to the press, but the complaint makes no such allegations.
Defendants also contend plaintiffs cannot prevail on their claims because they are barred as a matter of law by the statute of limitations. We agree.
Under Code of Civil Procedure section 340.6 (section 340.6), "[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first." (Id., subd. (a).)
In this case, plaintiffs filed suit on April 20, 2012. But:
On March 24, 2010, plaintiff Bergstein executed a declaration stating that, after he learned of the litigation Aramid filed against him and of the involuntary bankruptcy filings by the Levene Neale firm, he "immediately suspected that Tregub might be behind both the Aramid and the bankruptcy filings." And:
On March 26, 2010, plaintiff Bergstein's lawyers wrote to Mr. Rozansky and another lawyer at the Stroock firm about the bankruptcy proceedings and the Aramid complaint, and said, among other things: "We have received information that Susan Tregub ... has been assisting you and your law firm as well as certain alleged creditors ... in connection with those proceedings and in connection with the Aramid Complaint. It further appears that Ms. Tregub has disclosed to you and your law firm ... confidential information of [plaintiffs] that Ms. Tregub obtained while representing them...." And, "the [plaintiffs] intend to pursue any and all legal remedies they have that arise out of the use of any and all confidential information and assistance provided by Ms. Tregub.... Please be aware that we consider any communications between your firm and Ms. Tregub to be evidence that will have to be produced in any resulting litigation that will hereafter follow to determine the extent to which your firm was complicit in Ms. Tregub's breach of her fiduciary obligations...." And:
On April 2, 2010, after receiving a letter from Stroock lawyer Rozansky saying the Stroock lawyers had not received confidential information from Ms. Tregub, plaintiffs' lawyers again wrote to the Stroock lawyers. They said, for example: "[F]or at least the past several months attorneys in your firm have been communicating with Ms. Tregub, including receiving information from Ms. Tregub pertaining to some or all of the Plaintiffs and their various legal and business affairs." Those communications constituted "improper dissemination of confidential information" and violated attorney-client privilege, and "your firm's involvement in these actionable activities will not be tolerated. Moreover, your firm may be exposed to independent tort liability and ethics violations for receipt and/or use of such wrongfully obtained information from Ms. Tregub and Plaintiffs reserve all rights related to your conduct." The letter demanded immediate return of all documents in any form between the firm and Ms. Tregub pertaining to plaintiffs or their business dealings, and demanded the Stroock firm cease and desist from engaging in such communications with Ms. Tregub. Also:
On October 26, 2010, in a cross-complaint against Stroock's client Aramid, plaintiffs alleged that Aramid aided and abetted Tregub to breach her fiduciary duty by "inviting Tregub to attend strategy sessions with counsel for the Aramid Defendants, which Tregub did attend and participate in, to strategize about ways to put maximum pressure on Bergstein, including litigation to be filed against [Bergstein and others] and involuntary bankruptcy proceedings to be filed against [affiliated entities]...."
Plaintiffs counter by contending section 340.6 does not apply, and instead the four-year statute of limitations in Code of Civil Procedure section 343 — the limitations period for "[a]n action for relief not hereinbefore provided for" — applies. This is because, they say, they are not suing defendants for "a wrongful act or omission ... arising in the performance of professional services," but rather for the "independently tortious conduct" of aiding and abetting Tregub's breach of fiduciary duty, interfering with Ms. Tregub's contract with Mr. Bergstein, and so on. We have heard, and rejected, this contention before, and it fares no better in the context of the statute of limitations.
We are not persuaded to change our view that, based on its plain language, section 340.6 applies to all actions "against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services...." (Id., subd. (a); see Vafi, supra, 193 Cal.App.4th at p. 881.)
Plaintiffs next insist they have produced prima facie evidence showing their claims are timely under the discovery rule. They say they did not learn
While we accept these assertions as true, they do not affect the accrual of the statute of limitations. That is perfectly plain from Jolly: "A plaintiff need not be aware of the specific `facts' necessary to establish the claim; that is a process contemplated by pretrial discovery"; so long as a "suspicion of wrongdoing" exists, "it is clear that the plaintiff must go find the facts...." (Jolly, supra, 44 Cal.3d at p. 1111.) Plaintiffs do not and cannot say they had no suspicion of wrongdoing by defendants until April 26, 2011; their own statements show otherwise. Further, their claims that "the discovery rule must prevent the statute of limitations from running until [they] had sufficient evidence to support their prima facie case" is likewise unsupported by any pertinent legal authority, and is affirmatively contradicted by Jolly.
Finally, plaintiffs contend defendants are equitably estopped from raising the statute of limitations as a defense, "because of their active efforts to keep plaintiffs from uncovering the truth of their activities," and they have "satisfied the requirements for fraudulent concealment." These assertions are based upon defendants' "repeated[] deni[al]" of receiving confidential information and their resistance to discovery in the Tregub case. These claims are meritless.
In sum, section 340.6 means exactly what it says: an action against an attorney for a wrongful act (except actual fraud) arising in the performance of professional services must be commenced within one year of discovery of the facts constituting the wrongful act. Nothing occurred in this case to toll the statute or estop defendants from raising it as a defense. Because plaintiffs did not file their lawsuit within the one-year limitations period, they cannot show a probability of prevailing on the merits of their claims.
Plaintiffs contend that "false statements made to the press about Bergstein are not protected conduct," and they have therefore stated a viable claim for tortious interference with prospective economic advantage, "even if there are other allegations in the same cause of action that are properly subject to an anti-SLAPP motion," citing Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1212 [128 Cal.Rptr.3d 205] ("where a cause of action arises from both protected activity and unprotected activity, the plaintiff may satisfy its obligation in the second prong by simply showing a probability of prevailing on any part of the cause of action"). They also claim they should have leave to amend the complaint to raise "non-protected claims, including defendants' false statements to the press," citing Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 871-873 [90 Cal.Rptr.3d 205] (trial court properly authorized plaintiff to amend her defamation complaint to plead actual malice, in conformity with the proof presented at the hearing on the anti-SLAPP motion; policy concerns against amendment in the anti-SLAPP context did not apply in that circumstance).
Plaintiffs' contentions have no merit. First, as we have already pointed out, the complaint did not allege defendants made false statements to the press,
Plaintiffs appealed the attorney fee order, but argue only that the award should be reversed if the order granting the anti-SLAPP motions is reversed. Because we affirm the trial court's grant of the anti-SLAPP motions, we also affirm the attorney fee order.
The orders are affirmed. Defendants shall recover their costs on appeal.
Bigelow, P. J., and Flier, J., concurred.
