Finton Construction, Inc. v. Bidna & Keys, APLC
238 Cal. App. 4th 200
| Cal. Ct. App. | 2015Background
- Finton Construction, Inc. (FCI) sued opposing counsel (Bidna & Keys, Bidna, Longerbone) for conversion, receipt of stolen property, and injunctive relief based on defendants’ possession of a hard drive purportedly copied when an employee left FCI for a competitor.
- The hard drive was provided to defendants as part of representation in Reeves v. Finton Construction (underlying litigation); stipulated and later court orders authorized copying and limited use of the drive for litigation.
- FCI pursued multiple collateral actions (police report, State Bar complaints, motion to disqualify counsel) and then filed the instant civil suit against opposing counsel alleging wrongful possession/use of the drive.
- Defendants brought a special motion to strike under the anti‑SLAPP statute (§ 425.16), asserting their receipt/retention of the drive was protected litigation-related activity and that FCI lacked evidence to show a probability of prevailing.
- The trial court granted the anti‑SLAPP motion, finding defendants’ conduct protected by the litigation privilege (Civ. Code § 47(b)) and that FCI failed to submit admissible evidence establishing ownership/theft or defendants’ knowing receipt of stolen property.
- The Court of Appeal affirmed, publishing the opinion to criticize the litigant’s tactics and to underscore protection for attorney litigation conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ receipt/retention of the hard drive is "protected activity" under the anti‑SLAPP statute | FCI argued the anti‑SLAPP statute shouldn't apply because the conduct was unlawful (i.e., possession of stolen property) | Defendants argued their acts were communicative and in furtherance of litigation (representation of clients), thus per se protected | Held: Acts arose from protected litigation activity; anti‑SLAPP applies |
| Whether any narrow "illegal conduct" exception (Flatley) removes protection | FCI asserted the conduct was illegal so Flatley exception applies | Defendants said Flatley applies only where illegality is conceded or conclusively proven (criminality), which is not the case here | Held: Flatley exception inapplicable; FCI did not conclusively show criminal illegality |
| Whether the litigation privilege (Civ. Code § 47(b)) bars the tort claims | FCI contended privilege shouldn't shield wrongful possession/receipt claims | Defendants invoked the litigation privilege to immunize communications/acts done in preparation and conduct of litigation | Held: Litigation privilege applies to receipt/retention/use of the drive in litigation context; it bars FCI’s claims |
| Whether FCI demonstrated a probability of prevailing on conversion/receipt of stolen property | FCI relied on a deposition excerpt and allegations to show ownership/theft and knowing receipt | Defendants argued FCI submitted no admissible evidence proving ownership, theft, or defendants’ knowledge that property was stolen | Held: FCI failed to produce admissible evidence sufficient to show minimal merit; anti‑SLAPP dismissal proper |
Key Cases Cited
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (2003) (sets forth anti‑SLAPP application and procedure)
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (narrow exception where conceded or conclusively shown criminal illegality removes anti‑SLAPP protection)
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (attorney communicative acts in litigation are per se petitioning activity under anti‑SLAPP)
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (scope and purpose of the litigation privilege)
- Scalzo v. Baker, 185 Cal.App.4th 91 (2010) (litigation privilege can apply even where materials were illegally obtained if use is within litigation context)
- Navellier v. Sletten, 29 Cal.4th 82 (2002) (both prongs—protected activity and lack of minimal merit—must be satisfied for anti‑SLAPP dismissal)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (2002) (plaintiff must produce admissible evidence showing probability of prevailing on the merits)