Optional Capital, Inc. v. DAS Corp.
166 Cal. Rptr. 3d 705
Cal. Ct. App.2014Background
- Optional Capital, a Korean corporation, alleged DAS and related defendants looted its funds in 2000–2002.
- Fiduciaries Kim parties transferred Optional funds to Alexandria; later funds moved to DAS and Credit Suisse in Geneva.
- Forfeiture actions and multiple lawsuits followed in U.S. federal court and Swiss proceedings.
- DAS settled with the Kim parties in DAS’s superior court litigation; Credit Suisse funds were released by Swiss authorities.
- Optional obtained a judgment in the Optional federal action; competing claims arose among DAS, Alexandria, and others.
- Optional sued in California state court for conversion and fraudulent conveyance, seeking remedies including a constructive trust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Optional’s claims arise from protected activity | Optional’s claims trace to wrongful transfer, not the settlement itself. | Claims arise from DAS’s settlement with the Kim parties and are protected. | No; claims do not arise from protected activity. |
| Whether the claims are barred by the litigation privilege | Privilege does not bar noncommunicative wrongful acts. | Settlement negotiations and related conduct are privileged. | Litigation privilege does not bar due to independent wrongful act. |
| Whether Optional state-law claims have a reasonable probability of success | Optional can trace funds and impose constructive trust. | Transfers were ordinary creditor behavior and speculative. | Optional shows reasonable probability of success on merits. |
Key Cases Cited
- Seltzer v. Barnes, 182 Cal.App.4th 953 (Cal. Ct. App. 2010) (settlement negotiations can be petitioning activity)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (definition of action ‘arising from’ protected activity)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (anti-SLAPP focus on defendant’s activity)
- McConnell v. Innovative Artists Talent & Literary Agency, Inc., 175 Cal.App.4th 169 (Cal. Ct. App. 2009) (conduct not automatically protected by a letter; must arise from litigation)
- Paul v. Friedman, 95 Cal.App.4th 853 (Cal. Ct. App. 2002) (conduct not protected where not connected to issue under review)
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (litigation privilege applies to communications in aid of legal proceedings)
- Jacob B. v. County of Shasta, 40 Cal.4th 948 (Cal. 2007) (gravamen governs scope of litigation privilege)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (standard for evaluating anti-SLAPP motions)