ELIZABETH KARNAZES, Plaintiff and Appellant, v. TYLER ARES et al., Defendants; ASHLEY D. POSNER, Movant and Respondent.
No. B246308
Second Dist., Div. Two
Jan. 27, 2016
Rehearing Denied February 26, 2016
344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358
Elizabeth Karnazes, in pro. per., for Plaintiff and Appellant.
Posner Law and Ashley D. Posner for Movant and Respondent.
OPINION
CHAVEZ, J.—Elizabeth Karnazes (appellant) appeals from an order granting a special motion to strike appellant’s complaint filed by Ashley D. Posner (respondent) pursuant to
We find no error in the trial court’s ruling; therefore we affirm the order.
CONTENTIONS
Appellant makes the following contentions: (1) the trial court violated the law by failing to provide appellant with a copy of the tentative ruling that was provided to respondent prior to oral argument on the anti-SLAPP motion; (2) respondent’s motion was untimely and should have been denied for that reason; (3) respondent’s motion should have been denied because respondent is a person primarily engaged in the business of selling services under the
FACTUAL BACKGROUND2
In 2008, appellant invested the assets in her home equity line of credit with Tyler Ares (Ares), the adult son of a friend of appellant. Ares promised to prudently invest the funds, taking no significant risks. Ares further promised that appellant would make enough profit to pay the interest on the home equity line of credit plus a small profit. Ares stated that he would treat the assets as if they were his mother’s assets and would not lose the assets under any circumstances. Ares, and the other defendants, knew that appellant was a disabled person more susceptible to defendants’ wrongful acts than an able person and knew or should have known that appellant had no training in economics, was not an experienced investor, and needed her assets for financial support.
Ares and the other defendants did not safely and prudently invest appellant’s assets. Instead they lost her assets plus an amount that continues to accrue on her home equity line of credit.
Appellant asserts that respondent promised appellant he would help set up a repayment plan for Ares and the other defendants to pay back appellant the assets that were lost. However, instead of helping set up a repayment plan, respondent obtained privileged information from appellant to assist respondent in preventing appellant from recovering the damages caused by the actions of Ares and the other defendants.
Respondent is an attorney who was retained by his nephew, Ares, in October 2008 concerning claims made against Ares by appellant. Respondent knew appellant to be a friend of his sister, Ares’s mother. Beginning on October 26, 2008, appellant and respondent exchanged 16 messages upon which all of appellant’s claims against respondent are based. In these e-mails, respondent expressly informed appellant that he was acting as Ares’s attorney. Specifically, on October 29, 2008, respondent stated: “Please stop attempting to contact [Ares] directly. I represent him as his attorney and he
PROCEDURAL HISTORY
On October 12, 2010, appellant filed her complaint in Santa Clara County Superior Court. The complaint named as defendants Ares, his mother Gabrielle Ares, respondent, Gunn-Allen, ECHO trade, and Does 1-100. It asserted causes of action for negligence, fraud, breach of contract, common counts, and exemplary damages.
Appellant’s first amended complaint (FAC) was filed on December 5, 2011. The FAC alleged 22 causes of action against defendants. The 18th through 22d causes of action alleged fraud, fraudulent concealment, and promissory fraud against respondent. Specifically, appellant alleged that respondent falsely promised to help appellant set up a repayment plan and contract for Ares, Gabrielle Ares, and the other defendants. Respondent was obtaining privileged information from appellant and preventing appellant from recovering her damages.
A motion to change venue was granted, and on August 7, 2012, the Los Angeles County Superior Court received a notice of incoming case transfer and papers and documents on transfer.
On August 13, 2012, respondent filed his anti-SLAPP motion, arguing that the 18th through 22d causes of action in appellant’s complaint constituted a strategic lawsuit against public policy. The alleged fraudulent misrepresentations occurred in anticipation of litigation. Respondent argued that he was representing appellant’s stockbroker after the time of appellant’s alleged stock market losses. Therefore, respondent argued, the speech between appellant and respondent is constitutionally protected and absolutely privileged under
Addressing the second prong of the test under
On January 7, 2013, appellant filed her notice of appeal from the order.
DISCUSSION
I. Applicable law and standard of review
A special motion to strike under
Actions subject to dismissal under
“’Review of an order granting or denying a motion to strike under
II. The anti-SLAPP motion was properly granted
A. Timeliness
We first address the timeliness of respondent’s motion. Generally, “[a] party may not file an anti-SLAPP motion more than 60 days after the filing of the complaint, unless the trial court affirmatively exercises its discretion to allow a late filing. [Citation.]” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775; see
Appellant argues that respondent was served with the FAC on January 25, 2012, and had no viable grounds to claim he could not have timely filed his anti-SLAPP motion when he sought a change of venue or on some earlier date than August 13, 2012.
The parties do not indicate when the Los Angeles court mailed notice of receipt of the case; however such notice was filed on August 7, 2012. Because respondent’s anti-SLAPP motion was filed six days later, on August 13, 2012, it was undoubtedly filed within 30 days of the mailing of such notice. Thus, it was timely.
Appellant argues that South Sutter does not address the Los Angeles court’s five-month delay before the time of hearing. Appellant points out that nowhere in the record is there any proof or even argument that the trial court’s docket conditions required such a delay. However, a trial court may not properly deny an anti-SLAPP motion on the grounds that the hearing was not scheduled within 30 days after service of the motion. Instead,
B. Section 425.16 analysis
The threshold question in evaluating respondent’s anti-SLAPP motion is whether appellant’s complaint arises from protected activity. (Nygard, supra, 159 Cal.App.4th at p. 1035.) The trial court found that it does. We agree.
Respondent had the initial burden of showing that the causes of action against him arose from protected activity. (
In determining whether the moving party has met his burden, the trial court may consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Respondent included with his motion a declaration attaching e-mail communications with appellant dated between October 26, 2008, and December 4, 2008. The e-mail communications include a recitation of the reasons that respondent believed Ares should have no concern for any criminal or civil liability, and a request that “If you feel compelled to sue Tyler or anyone else . . . I would appreciate receiving a courtesy copy of any complaint.” Two days later, respondent again wrote to appellant indicating that he had reviewed all written statements made by appellant to Ares’s employer and reiterating that respondent “cannot see why Tyler or anyone else has any legal or any other sort of responsibility to make any offer to you based upon your trading losses.” Accordingly, respondent “respectfully reject[ed] [appellant’s] demands on Tyler’s behalf and consider[ed] this matter closed.” Respondent again requested a courtesy copy of any complaint that appellant might file. The same day, respondent wrote a second e-mail to appellant which stated clearly: “Tyler will not pay you any money for all of the reasons I have given to you. Please stop attempting to contact him directly. I represent him as his attorney and he will not communicate with you other than through counsel.”
Respondent later forwarded appellant a check representing the balance of the funds she had invested. After appellant threatened to contact Ares directly,
We find, as did the trial court, that all of respondent’s communications with appellant occurred within the context of anticipated litigation and settlement. The communications include a review of possible claims and references to Ares as respondent’s client. In addition, they contain a request for a copy of any complaint that might be filed in the matter under discussion. Thus, we find that respondent met his burden of showing that the claims against him arose from protected activity.
Having determined that the allegations against respondent arose from protected speech, we next must determine whether appellant demonstrated a probability of prevailing on her claims against respondent. (Nygard, supra, 159 Cal.App.4th at p. 1035.) As the trial court noted, appellant failed to include with her response any evidence suggesting that she had a probability of prevailing on the merits of her claims. Appellant claims that she alleged verified detailed facts in her complaint and in her response. However, pleadings do not constitute evidence. (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 241.)4 Appellant included no facts suggesting that respondent made any specific misrepresentations to appellant or that appellant relied on any such statements to her detriment.
III. The trial court did not violate appellant’s rights
Appellant asserts that the trial court violated her rights by failing to provide her with a copy of the tentative ruling provided to respondent prior to oral argument on respondent’s anti-SLAPP motion. Appellant argues that she was greatly prejudiced because she did not know the basis or logic behind the court’s tentative ruling, and did not know how to tailor her arguments to address the issues raised in the tentative ruling.
Appellant appeared telephonically for the hearing.
In support of her claim that her rights have been violated, appellant string cites several authorities, none of which support her claim that the trial court was required to provide her an electronic copy of the tentative ruling under the circumstances of this case. Appellant first makes general citations to article IV of the United States Constitution, Fourteenth Amendment; the California Constitution, article I;
Finally, appellant cites
IV. Section 425.17, subdivision (c) is inapplicable
Appellant argues that respondent’s motion should have been denied because respondent falls under the exception set forth in
“Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:
“(1) The statement or conduct consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services.
“(2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.”
Appellant argues that respondent is primarily engaged in the business of selling services, and that his statement or conduct was made in the course of delivering his services, and that his intended audience was the actual customer, appellant. The trial court disagreed, finding that the only evidence presented in the case was that respondent was engaged in services as an attorney. Appellant asserts, without citation to any case law, that attorneys are subject to
Respondent cites Flores v. Emerich & Fike (E.D.Cal. 2006) 416 F.Supp.2d 885 (Flores), which involved a lawsuit brought by apple growers against the attorneys who represented a fruit packing company against whom the apple growers had obtained judgment in a prior action. The lawsuit alleged against the attorneys malicious prosecution, malicious abuse of process, fraud, and conversion, among other things. (Id. at pp. 894-895.) The attorney defendants filed an anti-SLAPP motion, and the plaintiffs argued that the commercial speech exception provided under
We are persuaded by the reasoning in Flores. Similarly, here, the statements made by respondent were not statements of fact about his services for the purpose of promoting his services, nor were the statements made to an intended buyer or customer. All statements were made in the context of respondent’s representation of Ares in prelitigation negotiations with appellant. The commercial speech exception set forth under
V. Respondent’s alleged actions were not illegal
Appellant asserts that respondent’s alleged actions in defrauding appellant were illegal as a matter of law and thus did not come within the protections of the anti-SLAPP law. Appellant cites Mindys Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d 590, without explanation of its relevance. In Mindys, it was held that the attorney defendant’s action of filing a trademark application was protected by the anti-SLAPP law, but that the claims of malpractice,
Appellant also cites, without discussion, Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, a legal malpractice case, and Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, an accounting malpractice case. Neither case suggests that an attorney’s prelitigation communications on behalf of his client, such as those at issue here, may be considered illegal as a matter of law.
DISPOSITION
The order is affirmed. Respondent is awarded costs of appeal.
Ashmann-Gerst, Acting P. J., and Hoffstadt, J., concurred.
A petition for a rehearing was denied February 26, 2016, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied April 27, 2016, S233245.