Bergstein v. Stroock & Stroock & Lavan LLP
236 Cal. App. 4th 793
| Cal. Ct. App. | 2015Background
- Plaintiffs (David Bergstein and related entities) alleged that opposing-party counsel (Stroock & Stroock & Lavan LLP and Levene Neale firms and partners) solicited and received confidential, privileged, proprietary information from plaintiffs’ former long‑time lawyer Susan Tregub and used it to plan and prosecute litigation (including a “master complaint” and involuntary bankruptcy petitions).
- Tregub had a falling-out with Bergstein in late 2009 and began assisting Aramid/Molner and defendants in late 2009/early 2010; plaintiffs later sued Tregub and obtained a verdict against her.
- Plaintiffs filed suit (Apr. 20, 2012) against the defendant law firms for aiding and abetting breach of fiduciary duty, interference with contractual/prospective economic relations, and unjust enrichment, alleging defendants knowingly solicited/used privileged information and coordinated litigation strategy with Tregub.
- Defendants brought anti‑SLAPP special motions to strike under Cal. Code Civ. Proc. § 425.16, arguing the claims arose from protected petitioning activity (litigation-related conduct) and that plaintiffs could not show a probability of prevailing because the claims were time‑barred and barred by the litigation privilege.
- The trial court granted the anti‑SLAPP motions and awarded fees; the Court of Appeal affirmed, holding plaintiffs’ claims arose from protected litigation activity, the Flatley “illegality” exception did not apply, and plaintiffs failed under the second prong because of the litigation privilege and the one‑year discovery rule in § 340.6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether anti‑SLAPP applies or is precluded because defendants engaged in “illegal” conduct | Bergstein: defendants aided Tregub’s statutory violation (B&P §6068) and thus Flatley illegality exception bars anti‑SLAPP | Defendants: conduct was litigation‑related and protected; Flatley limited to criminal conduct; plaintiffs failed to identify statutory violation in opposition | Anti‑SLAPP applies; Flatley illegality exception doesn’t bar motion (post‑Flatley authority limits Flatley to criminal conduct and plaintiffs failed to plead/identify statutory violation as required) |
| Whether the gravamen of the complaint is protected petitioning activity | Bergstein: claims target non‑communicative misconduct (theft of privileged info, aiding breach) not protected | Defendants: allegations center on litigation strategy, drafting pleadings, filings and communications—classic petitioning acts | Court: gravamen is defendants’ litigation activities; claims arise from protected petitioning activity |
| Whether plaintiffs showed a probability of prevailing despite protected activity (litigation privilege) | Bergstein: claims are based on non‑communicative aiding/abetting and thus not barred by litigation privilege; press statements (if any) unprotected | Defendants: communications and pre‑filing strategy are privileged under Civ. Code §47(b); privilege is broad and absolute for litigation‑related communications | Court: litigation privilege applies; plaintiffs cannot show probability of prevailing |
| Whether claims are time‑barred under Code Civ. Proc. §340.6 | Bergstein: discovery of defendants’ communications occurred in April 2011 (after many disclosures), so claim timely; alternatively four‑year limitations applies | Defendants: plaintiffs discovered or should have discovered facts constituting wrongful acts in March–April 2010; §340.6 one‑year discovery rule applies | Court: §340.6 applies; plaintiffs had suspicion and notice in March–April 2010 so claim untimely; no equitable tolling or concealment shown |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (illegality exception to anti‑SLAPP; court limited to communications that are criminal extortion as a matter of law)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (2006) (SLAPPback context; illegality must be established as a matter of law with particularized statutory identification)
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (2002) (two‑step anti‑SLAPP framework)
- Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal.App.4th 658 (2005) (gravamen analysis when protected and unprotected acts mixed)
- Mendoza v. ADP Screening & Selection Servs., Inc., 182 Cal.App.4th 1644 (2010) (Flatley’s “illegal” means criminal; statutory violations not per se outside anti‑SLAPP)
- Fremont Reorganizing Corp. v. Faigin, 198 Cal.App.4th 1153 (2011) (Flatley limited to criminal conduct; litigation‑related attorney confidentiality breaches do not automatically defeat anti‑SLAPP)
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (elements and scope of the litigation privilege)
- Kimmel v. Goland, 51 Cal.3d 202 (1990) (litigation privilege does not bar recovery for noncommunicative torts such as illegal secret recordings when distinct from communications)
- Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 (1988) (discovery rule: limitations period accrues when plaintiff suspects wrongdoing and has incentive to investigate)