*1 5, Apr. S025858. [No. 1993.] RUBIN,
GERALD S. Plaintiff and v. Appellant, al., NORMA GREEN et Defendants and Respondents.
Counsel Barish, Grebow, Brown, Lincoln Stone and & Arthur Patricia A.
Grebow Susan Gruskin for Plaintiff and Appellant. Coldren, Hart, Coldren, John H.
David & Robert S. King Spangenberg, Bohachek, Bohachek, Pentecost, & Earl L. Lawrence R. Rubenstein Bujold, *4 Plaintiff Daniel and Richard A. as Amici Curiae on behalf of Samp J. Popeo and Appellant. Sale, Garrett, II,
Musick, Birgit Mary Peeler & W.R. Chamberlain Harry Bohen, Defendants Catherine P. and D. Rubin for M. Matthew Stone Joseph and Respondent. Stanton, Stanton, Bates, Fellmeth, & Bruce E. Crosby
Richard N. Robert C. Rubin, Altshuler, Berzon, Nussbaum, & and Fred H. Altshuler Berzon Amici Curiae of Defendants and Respondents. on behalf Opinion law,
ARABIAN, J. of frequently common was “the offense barratry At Blackstone, (4 Commentaries and suits and exciting stirring up quarrels” the crime 134) A version of statutory and was as a misdemeanor. punished because of it is seldom today, although prosecuted, perhaps survives “excited” at least three that the show the defendant proof requirement (Pen. annoy.” intent vex and suits “with a or malicious to groundless corrupt Code, 158, 159.) §§ solicitation, a only,
The modern law is not barratry, successor of common but is also agents, misdemeanor when the use of accomplished through to review this case subject to the State Bar. We discipline by granted action sue may consider whether a defendant an civil impending “solic- they wrongfully for the on the attorneys opposing party ground not only ited” the him. We conclude that this litigation against proceeding courts, that, but undermines the established access to the policy allowing solicita- redress of remedies for the of other availability given tion, maintainable. suit is not retaliatory this
I commence intention to of a “notice of action out grows The present The Green. Rubin Norma to Gerald mailed on August action” 450 San the approximately behalf of all of notice was on purportedly Park, a park Mobilehome Village of Cedar Bernardino residents County resident, notice, Green, Cedar Village herself a her co-owned Rubin. and sought the park operation enumerated 23 defects and federal law. of remedies under California variety letter, meet offering Green’s on his behalf to attorney replied Rubin’s reach a “attempt to discuss the grievances with a residents park group had that Green went on to assert mutually satisfactory reply resolution.” “in the Village of Cedar “made statements to various residents” threatening It law firm. attorneys’ for her soliciting agent clients” as process such conduct Green that Rubin would “not tolerate by warning concluded injury event of loss or and will seek compensation appropriate with his tenants Mr. Rubin’s contractual and business relationship letter, contesting many Green’s to Rubin’s employees.” attorneys responded *5 of their clients’ a desire to discuss a resolution indicating of its assertions but grievances. filed firm’s Rubin response, a week after the law
Approximately receiving Rubin’s Green and the law firm. against this action court both superior claims, which was that verified several tort of alleged gist complaint in anticipated as clients defendants had solicited Cedar residents Village conditions, in Rubin’s interfering against thereby Rubin over litigation park with contractual relations them. that, firm had the law agent,
The with Green as their complaint alleged economic and business “embarked on a malicious effort to harm [Rubin’s] residents, utilizing standing by Village] stirring up animosity among [Cedar residents, fear, communicating and and against intimidation coercion unjustly false of frivolous as a means to promise litigation profit [Rubin’s] relief enjoin- The well as expense.” sought damages equitable complaint to Village at Cedar ... ing soliciting defendants from “non-client residents Cedar concerning become law on matter legal clients of firm] [the Meanwhile, 7,1989, Green and over 120 other . . . .” on December Village firm, filed the defendant law residents of Cedar Village, represented Rubin, a failure alleging action noticed Green’s letter of August restraints on the and the imposition illegal maintain adequately park owners.1 sale of mobilehomes park denied for interim equitable
After the court his superior application with refused a that the failure-to-maintain suit be consolidated request action, a claim adding against this Rubin filed an amended complaint, for narrowing request defendants for “unfair business practices” him. against relief to acts of harassment encompass only The amended also offered a more detailed account of the solici- complaint Cedar the defendants on the residents of allegedly practiced by tation Village. firm in a engaged the amended the law had
According to complaint, residents of several mobilehome for pattern soliciting parks purpose the firm’s modus owners. commencing litigation against park Allegedly, help an to meet with residents to operandi arrange park was to invitation with the a resolution conditions negotiate owner; this, complaints regarding park turn, the firm to obtаin substantial would lead to a promise by in litigation monetary agreed join settlements for those residents who suit, lawsuit, A followed. against owner. a “form” notice preceded by suit, After mobilehome park often on behalf of a hundred or more filing residents, firm the law seek trial on the basis of early would preference to the (according advanced of some of the age resident-plaintiffs, thereby for full amended the defendant owner’s complaint) truncating opportunity discovery. the first amended court sustained a demurrer to superior general defendants’ conduct without leave to amend on the that
complaint ground (section 47(b)), (b) was under Civil Code section subdivision privileged the so-called A divided Court of reversed “litigation privilege.” Appeal firm did not to the acts of the law judgment, ruling the privilege apply and Green for alternative reasons.
First, acts that although a of the Court of concluded majority Appeal Cedar Village defendants to the law firm’s retention leading regulated by statute. park extensively 1Relations between and mobilehome owners are Code, agreement (Civ. seq.) requires et a written rental Residency Mobilehome Law 798§ contents, on charges park may imрose owners specifies regulates and its rents and related that residents, regulates the park management, and provides meetings for between residents and parks, termination of tenancies and the transfer of mobilehomes and mobilehome requirement that provides judicial penalties. provision and The latter includes remedies levels of park facilities or alleged before an action for the failure to maintain common residents, days by park service—a so-called “failure-to-maintain” suit—is instituted Code, (Civ. management. given be written notice of the intention to file such an action must precipitated the 798.84.) plaintiff Green to the that 30-day It was this “suit letter” from § present proceeding. “communicative,” was their conduct that aspect necessarily were residents noncom- actions was of defendants’ The dominant characteristic secondary. 47(b). municative, of section entitled to the protection and thus was not had established the Legislature concluded that Alternatively, majority statutory prohibition enacted a when it to the litigation privilege exception in and Profes- Business That embodied solicitation. prohibition, on in an agent to act as makes it unlаwful Code sections 6152 sions aas violations attorneys, punishing on behalf of the solicitation of business in defendants’ conduct held that the Court of Finally, Appeal misdemeanor. unfair clients constituted residents as Village Cedar allegedly soliciting (Bus. Act Business Practices the redress of which the Unfair competition, Code, right with a private & et seq.) provided plaintiff Prof. § relief. damages injunctive action for dissented, of section the litigation privilege
One that justice reasoning Green, suit, firm and of the law 47(b) to the conduct that the acts applied Village the Cedar inducing the amended amounted alleged complaint, immunity, aby separate residents to file a lawsuit and were thus protected action on a cause of and that the unfair statute did not confer competition dissenting We with against agree defendants for solicitation. plaintiff reasons, suit cannot be different justice, plaintiff’s albeit for somewhat maintained. in the amended complaint
As we the acts of defendants explain, 47(b). were thus They were within the of section meaning communicative We also liability. within the and immune from tort scope privilege an essen- claim lacks plaintiff’s wrongful conclude because solicitation attor- brought against tial attribute of a malicious action and is prosecution it is not adversaries a related neys representing litigation proceeding, not avoid may maintainable event. we hold that Finally, relief under 47(b) bar of section his claim as one for by pleading be direct that this action accordingly the unfair statute. We will competition dismissed.
II
relation” to judicial
For well over a
communications with “some
century,
liability by
privilege
have been
immune from tort
proceedings
absolutely
47(b).2
Traynor’s opinion
codified as section
At least since then-Justice
405],
California courts
Albertson v.
“(b) (2) . judicial proceeding In ... . . .”
1194
Indeed, we recently
have
reach.3
given
privilege
expansive
noted,
47(2)
“the
section
section
to
of
only exception
application
[now
[the]
47(b)]
suits
actions.
to tort
has been malicious prosecution
[Citations].”
Anderson,
(Silberg
supra,
(Silberg).)
v.
(2)
access to the
assuring litigants
of
“the utmost freedom of
applicable policy
(Albertson Raboff, supra,
secure and defend their
v.
rights
courts to
. . . .”
380.)
importance
46 Cal.2d at
We have
p.
recently reemphasized
In
virtually
Silberg,
unhindered access to the
several opinions.
courts
205,
supra,
47([b])
50 Cal.3d
we said that the
of section
“principal purpose
is to afford
...
the utmost freedom of access to the courts without
litigants
fear
(Id.
harassed
derivative tort
at
being
actions.”
subsequently by
And,
Bernhard,
213.)
Royal
Greenberg,
Oren
Oaks
Weiss &
Venture v.
Karma,
567,
1202],
(1986)
Inc.
42
we
Cal.3d 1157
728 P.2d
Cal.Rptr.
[232
declined to
tort to include the
permit
expansion
process
abuse of
lawsuit;
so,
reasoned,
alleged
of a
to do
we
would remove
improper filing
actions, re
existing barriers to the maintenance of malicious prosecution
that we said
a crucial rule in
to . . .
quirements
right
“play[]
protecting
Steams,
(Id.
1170.)
In
Cal.3d
judicial
supra,
. . . .”
Bear
50
1118, we called
cause malicious
requirement
probable
prosecution
(Id.
actions “essential to assure free access to the courts . . . .”
at p.
863,
(See
(1989)
872
Appel
also Sheldon
Co. v. Albert & Oliker
47 Cal.3d
336,
(Sheldon Appel)
765 P.2d
Cal.Rptr.
prosecution
[254
498]
[malicious
tort
claims
“carefully circumscribed so that
with
valid
litigants
potentially
.”].)
will not be deterred from
their claims to court.
. .
bringing
of this
light
day
extensive
it is late
to contend
history,
communications with
anticipated
“some relation” to an
lawsuit are not
375,
Raboff,
within the privilege. Following
supra,
Albertson v.
46 Cal.2d
numerous
have
decisions
communica
applied
privilege
prelitigation
tions,
no doubt as to its
leaving
facts
applicability
Labs,
(See,
amended
Block v. Sacramento Clinical
Inc.
complaint.
e.g.,
386,
(1982) 131
393
Cal.App.3d
Cal.Rptr.
[privilege applies
[182
438]
communications with “some relation to a
that is
contem
proceeding
actually
faith and under
plated
good
party
serious consideration
. . . a possible
481,
3(See, e.g.,
(1984)
Drasin v.
&
Jacoby Myers
Cal.App.3d
Cal.Rptr.
150
485
768]
[197
355,
143,
process];
(1985)
Ribas v.
Cal.Rptr.
Clark.
38 Cal.3d
364
P.2d
[abuse
637,
696
[212
distress];
privacy
A.L.R.4th
49
and intentional
infliction of emotional
417] [invasion
Levy (1972)
Pettitt
Cal.App.3d
Cal.Rptr.
[negligence
negligent
v.
28
487
[104
650]
[fraud];
misrepresentation];
(1987)
Cal.App.3d
Cal.Rptr.
Carden v.
698]
907 [235
Getzoff
Cal.Rptr.
Gas & Electric Co. v.
&
Bear Stearns
Co.
1195
(1982)
Cal.App.3d
135
& Manella
v. Irell
Rosenthal
the proceeding”];
actions”];
v. Natan
Ascherman
121,
court
[“potential
126
Cal.Rptr. 92]
[185
extends to
861,
[privilege
Cal.Rptr.
865
(1972)
656]
23 Cal.App.3d
[100
son
action];
contemplated
related to
interviews”
and
conversations
“preliminary
484,
and
[meeting
parties
of
490
28
Levy, supra,
Cal.App.3d
v.
Pettitt
Lerette
hearing”];
at the
evidence for presentаtion
“marshal their
counsel to
573, 577
(1976)
Cal.App.3d
[131
60
Inc.
Organization,
v. Dean Witter
proceed
to judicial
taken
“steps
prior”
extends to
Cal.Rptr.
[privilege
592]
short,
within
clearly
acts more
few communicative
imagine
In
we can
ings].)
amended complaint,
alleged
than those
of
scope
privilege
is,
and
conditions
park
Cedar
residents
discussing
Village
and
with
meeting
lawsuit,
the com
filing
failure-to-maintain
the merits of the proposed
the litigation.
plaint
subsequent pleadings
Village
with the Cedar
communications
Nor does the fact that defendants’
In
conclud-
privilege.
acts destroy
residents
involved related
necessarily
involved noncommunica-
amended
ing
complaint
that the
gravamen
conduct,
v. Goland
Kimmel
opinion
tive
the Court of
relied on our
Appeal
Kimmel,
191,
held
we
P.2d
Ill Having concluded that the acts at issue here are within the of scope 47(b), section and are thus protected from tort we determine liability, must the extent of that As we protection. because claim explain, of plaintiffs actions, attorney solicitation lacks an essential feature of other derivative tort restrictions affecting maintenance of such actions—limitations on of such timing claims and the elements of the that must alleged wrong be Instead, established—are inapplicable. given gravamen of amended we are led to complaint, conclude that claim is not maintainable at plaintiffs all.
The core policy access to the protecting сourts section underlying 47(b) has led to the requirement that a derivative tort action seeking redress for communications within the privilege be until the suit is delayed original terminated favor of the derivative Its maintenance is further plaintiff. abuse, conditioned on a heightened showing of effect to a amounting faith, species bad the initial plaintiff suit. filing claims retaliatory has thus been limited conditions bor by incorporating rowed from the venerable common (See, law tort of malicious prosecution. 216; Steams, for example, Silberg, supra, 50 Cal.3d at Bear supra, 50 Cal.3d at p. Circumscribed actions are thus retaliatory permitted as a has, means of redressing wrong—groundless litigation—that partly but not entirely, already been established outcome the original proceeding.
Here, however, the gravamen plaintiffs is not that complaint claims of the Cedar Village litigants are themselves but that the groundless, methods firm employed by Green) law the use (through being solicitation, retained as counsel for the residents amounted to conduct the Legislature has made criminal. Because the which wrong seeks to redress is not the of an but filing unjustified soliciting lawsuit claims, are, file all meritorious appearances, рotentially what
others to conditions should be subject is not whether the solicitation claim question actions, whether but malicious analogous governing prosecution those A at all.4 a derivative be maintainable consideration such claim should *10 for by the Legislature established administrative and criminal sanctions solicitation, within with the remedies available to together attorney itself, that this lead us to conclude the of the suit scope failure-to-maintain action should be dismissed.
In endorsed unanimously Sheldon Cal.3d the court Appel, supra, 47 filed the litigation “in recent the volume of proposition years large ... (Id. in at American . .” increasing has become a of concern . . courts matter 872.) the use of After the restrictions on p. arguments canvassing supporting the malicious a prosecution controlling litigation tort as means of excessive contra, and those for promising remedy our concluded that “the most opinion excessive not lie of malicious litigation does an expansion prosecution (47 liability.” at p. Cal.3d
Instead, we “the of said that better means of the addressing problem unjustified litigation the the through facilitating of measures adoption of authorizing resolution of thе initial the speedy imposition lawsuit itself, sanctions for frivolous or within that first action delaying conduct rather than an of for one or through initiating the expansion opportunities additional first more of after the litigation rounds malicious prosecution 873.) Our (Sheldon action has been concluded.” Appel, supra, Cal.3d noted the in that opinion Legislature had taken several recently steps by by direction enhanced providing litigation sanctions for misconduct (Ibid.) attorneys. supra,
Considered of Cal.3d Appel, from Sheldon perspective access, in the way and assessed the cost to we find little judicial of light of furthered maintenance this derivative countervailing policies by a action. We reach by balancing that conclusion utility permitting a civil maintain claim litigant against action to an unlawful solicitation a untoward effects of such attorneys party against opposing on the administration of proceeding justice. civil in the wake likely It is not difficult to follow imagine consequences a rule parallel the defendant in a civil action to institute permitting litigation we filed judicially 4Whether notice the of the failure-to-maintain should outcome Village question a by the defendant law on behalf of Cedar residents is firm Green and other vigorously gravamen of parties. light that is contested of our conclusion that the plaintiff’s goes litigation claim of the to antecedent not to the merits failure-to-maintain but matters, we fact that it judicially beyond decline notice to that suit matter related was filed. on the for the adverse litigation seeking impose liability party based on the circumstances the formation of the surrounding attorney-client that led to the from relationship filing original suit. Apart provoking another round of all yet litigation, evils identified our cases prior accompanying retaliatory litigation-related suits based on communications would be such a tactic. The of colorable claims promoted by impairment counsel, access to effect disrupting intimidating attorneys facing on almost certain the distractions inherent retaliatory proceeding, requiring counsel to deal with as well as the defending personal predicate countersuit and, action in general, the effect on the unobstructed dampening presentation of claims which we have value limita identified as the central supporting actions, tions on other derivative tort with force to this suit. apply equal 214; (See, supra, 47 e.g., Silberg, supra, Appel, 50 Cal.3d at Sheldon *11 873; Stearns, 1131.) Cal.3d at supra, Bear 50 Cal.3d at hand, On the other and sanctions avail- given regulatory prosecutorial solicitation, able to with those available to remedy attorney together litigants itself, within the scope of action of a predicate utility proceeding noted, such as this one is As solicitation use marginal. attorney through crime, (Bus. of “runners” or & is a as a misdemeanor. “cappers” punishable Code, 6152-6153;5 see, (1976) Prof. 61 Municipal Hutchins v. Court e.g., §§ 158].) 77 who solicitation Cal.App.3d Cal.Rptr. Attorneys engage [132 also are subject to the State Bar. Rule 1-400 of the Rules of discipline by Professional Conduct limitations on the of State Bar substantial imposes content and of or on of concern- timing attorneys communications behalf by ing availability for solici- professional employment explicitly prohibits (See 1-400(C), tation that is not rule Rules Prof. constitutionally protected. Bar.) Conduct of State Under its the State Bar has rulemaking power, adopted specific standards for communications that violate presumptively Note, (See on proscription Deering’s solicitation. Drafter’s Ann. attorney fоil, Bar, (1993 Rules of Court Rules Prof. Conduct of State pocket supp.) 1-400; 27, addition, rule 1989.) stds. the State Bar is adopted May statute with charged by the enforcement of the anti-solicitation statute and Code, 6030.) (Bus. to seek & empowered injunctive relief. Prof. § Plaintiff and amici curiae assert these remedies are insuf- supporting ficient. argue that the of has been fueled They growing litigiousness society solicitation, uncontrolled and that growth attorney practice se, that, malum an evil meritorious filing it lead to the although may Code, Legislature (Bus. 5The & recently amended the solicitation statute Prof. 6153) penalty year county to increase the to one in the for a first offense from six months § jail sixteen permit imprisonment a sentence of state for a second offense for between $10,000 (Stats. months years, together and three with a fine. ch. § claims, assert that discouraged by They the courts. to be ought vigorously illusory—so are as a matter practical solicitation existing against sanctions effective only have no real deterrent effect. enforced they seldom defendant the indirect “victim” of solicitation—the is to permit solution wrongful line between police or lawsuit—to pending a prospective such maintaining suits as and activities of that offense solicitation short this one. a indeed be may perceived
We are
solicitation
unpersuaded. Attorney
loosening
trend toward
ongoing
entwined as it is with
growing problem,
marketing
and related controls on the
attorney advertising
restrictions on
(1977)
We that a lawsuit such is inconsistent as this one 863, with the choice made in where we Appel, supra, Sheldon 47 Cal.3d for the specifically litigation disсounted another round of as an antidote fevers of litigiousness, instead increased use sanctions preferring with within that underlying legislative lawsuit and measures. Consistent view, remedies, litigants invoke made avail- may range recently some Legislature, able facilitate the out of early weeding patently “to meritless and to in the claims of sanctions initial permit imposition Proc., 873-874; see, (47 lawsuit . . . Civ. .” Cal.3d at Code pp. e.g., 128.5, 437c, 1038, case, reme- 409.3.) For the this plaintiff potential §§ dies include the fees he be the and costs should recovery prevailing failure-to-maintain party litigation, expenses and reasonable fees if including attorney employed the residents are determined to have 798.85; Code, (Civ. frivolous or Code Civ. delaying tactics their suit. § Proc., course, 128.5.) free a mali- is Ultimately, plaintiff prosecute § action, conditions are prosecution provided requisite pleaded cious proven.6
IV 47(b), he argues of section Despite applicability plaintiff entitled Business and Pro nevertheless because pursue standing fessions Code section 17204 member of grants any public such relief He that the courts seek “unfair out against competition.” points have given meaning, embracing “unfair a broad phrase competition” (Committee on Children’s Televi unlawful business . . . .” “any practice sion, Corp. (1983) Inc. v. General Foods 35 Cal.3d 209-210 [197 660], omitted.) 673 P.2d italics Because it is made unlawful Cal.Rptr. Business and Professions 6152 and argues, Code sections attorney solicitation as a of unfair It is thus qualifies species competition. enjoinable for the interests of. . . the by “any person acting general public.” Code, (Bus. & Prof. §
We traced the recently behind the unfair history purpose competition Bank Superior the West v. Court statute Cal.4th 545], 833 P.2d its as one of the so-called Cal.Rptr.2d noting origin 1930’s, “little FTC Acts” of the enacted states the wake of by many amendments to the Federal Trade Commission Act the commis enlarging sion’s regulatory jurisdiction practices to include unfair business harmed, merely general not the interests of business but of the competitors, as well. We unfair public statutory concluded that the essence of the *13 (Id. 1263-1264.) claim lies in its at competition restitutionary nature. pp. “ (7) the act’s is indeed Although coverage sweeping, embracing ‘any that can the time thing be called a business and that at same properly practice ” (Barquis v. Merchants Collection Assn. (1972) is forbidden law’ 7 94, 817]), Cal.3d 113 we that “the 496 P.2d observed Cal.Rptr. Legislature traded the law for and deliberately speed attributes of tort result, administrative need As a to state a claim under the act one simplicity. Instead, not the need show that plead prove only elements of a tort. one whether, record, 6Because such presented question it is not on this we do not reach the in action, subsequent prosecution a malicious defendants’ acts of evidence of the admissible probable solicitation would be on issues cause. the of malice and the absence of
1201 ” (Bank West v. deceived.’ ‘members of the are to be public likely Court, 1266-1267.)7 at Superior supra, pp. Cal.4th In members of evident conflict with the policy permitting embodied policy of “unfair public police spectrum competition” above, in access to the 47(b), section discussed insuring litigants open statutes, these two we courts. Confronted with an conflict between apparent Deukmejian v. (People must harmonize them as ex rel. insofar possible. County Cal.Rptr. Mendocino 36 Cal.3d 488 [204 1150].) P.2d Clark, in supra, closest is our decision Ribas v. precedent point noted, ante,
Cal.3d damages 355. As there the page plaintiff sought from a defendant had who on a conversation be- eavesdropped telephone tween his former wife and testified as to subsequently conversation; nature of their for invasion of complaint sought damages 637.2, privacy and related well torts as under Penal Code section damages granting injured Defendant persons right of action. eavesdropping 47(b). contended that her was under section testimony privileged her claim upholding we considered “the immunity, expressly appli- cability (Ribas of Civil Code v. section 47 to causes of action.” statutory Clark, supra, 364.) 38 Cal.3d at We of free access policy reasoned that to the courts underlying privilege was the context “equally compelling of common law and there is no claims for invasion of statutory privacy; valid basis for indicates distinguishing nothing between the two. Certainly, enacting Penal Code section intended immu- Legislature 637.2 nize causes of action under that statute the traditional privileges from (38 to various applicable forms of oral evidence.” Cal.3d at context, In an analogous the Courts of have considered variations Appeal on claim him plaintiff’s that the unfair statute competition grants unqualified standing to seek injunctive relief defendants against notwithstanding 47(b). absolute bar imposed by rejected section These decisions have effect, claim that a plaintiff may, around” absolute barriers to “plead by relabeling the nature of the unfair action as one under the brought competition statute. the case of out of an insurer’s Notably arising actions claims, alleged bad faith refusal to settle insurance under formerly brought *14 Court, 1254, 7We went on to note in Superior supra, Bank the West v. 2 Cal.4th that of “damages are not only nonpunitive monetary available under The [the act]. [Citations.] available under the disgorgement money Unfair Business Practices Act the that has been is of or, statute, wrongfully language ‘restarting] money obtained in the . . an order . . . . ” may (Id. 1266.) which have acquired by p. been means of . . at This competition.’ . unfair holding dispositive plaintiff’s is damages claim for here. 1202 Code, held that the have Appeal
the Insurance several decisions of Courts action, our decision imposed by such causes of implied private bar on 287, (1988) 301 Companies Fund Ins. 46 Cal.3d Moradi-Shalal v. Fireman’s 116, (Moradi-Shalal), circumvented not be may 758 P.2d Cal.Rptr. [250 58] Professions Code section the action as one under Business and by recasting 17200. case, (1990) Superior Cal.App.3d In Court 216 atypical Ins. Co. v. Safeco 585], insurance carrier for its
1491 sued an Cal.Rptr. plaintiff [265 claim; under he sought damages conduct an automobile collision settling 790.03, Code, (Ins. Code unfair Insurance practices provision § relief, (h)) fees subd. as well as compensatory damages, Code section 17200. damages under Business and Professions punitive (216 1493.) complaint at The Court of ordered Cal.App.3d p. Appeal 287, dismissed, Moradi-Shalal, only barred not supra, that 46 Cal.3d holding claims, the Business and the Insurance 17200 Code but “[section of] Moradi- for the barrier of scaling Professions Code no toehold provides Mora- this action would render Shalal. ... To to maintain permit plaintiff (216 di-Shalal meaningless.” Cal.App.3d Superior
The in Maler v. Court Courts of reached the same result Appeal 1592, 222], (1990) and Industrial 220 Cal.App.3d Cal.Rptr. 1598 [270 1093, Indemnity (1989) 1096 Superior Cal.App.3d [257 Co. v. Court 209 655], of action rights which held that Cal.Rptr. implied private both of insurers, in Moradi bad faith claims barred our alleging against opinion Shalal, relief under the were not resurrected the action as one for by casting (1988) (See Companies 205 unfair statute. also Lee v. Travelers competition 468]; Ins. Services v. 694-695 Doctors’ Co. Cal.App.3d Cal.Rptr. [252 674].) Superior Cal.Rptr. Court Cal.App.3d [275 was summarized succinctly these results reasoning underlying Kaus, in whiсh the a case Justice Court writing Appeal v. Rhoden 47(b) of section itself was at issue. Thornton applicability 1152], a decision (1966) 245 23 A.L.R.3d Cal.Rptr. Cal.App.2d he wrote process, to a claim of abuse of litigation privilege applying 47(b)] should not be “The section salutary purpose privilege [of create If it is desirable to a new label on the by putting complaint. frustrated defamation, we desire to protect not because an absolute privilege have to be the honest one to but because we do not want shady practitioner, client, we should while for his acting concerned with libel or slander actions him doing precisely not remove one concern and saddle with another for added.) (Id. at thing.” same italics noted,
That, effect, As achieve here. is the result seeks to communicative complaint clearly conduct of defendants *15 thus immune 47(b). absolutely It is within the of section otherwise scope with and interference contract civil tort liability, including plaintiff’s from subject acts to be the related claims. To the same communicative permit under the relief this same injunctive brought by plaintiff an proceeding If under- policies unfair statute undermines that the competition immunity. 47(b) рrivilege, are an absolute lying sufficiently strong section to support merely plaintiff because the resulting immunity evaporate should not in what is substance an discovers a different label for conveniently pleading identical from identical conduct as that grievance arising protected 47(b). section in
We that the result we reach is emphasize propelled part by precise circumstances in the collateral failure-to- adversary before us. Plaintiff is an residents; maintain latter are action the Cedar brought by Village repre- action; in in sented that action the same are defendants this attorneys who in defendant Green is one of the that same action. from plaintiffs Apart another in the hands of a spawning yet layer litigation, litigation placing a adversary with the tactical of a unfair weapon potential statutory compe- tition claim for we have injunctive would all of evils promote described above as suits based on accompanying retaliatory litigation-related ante, (See, 1195-1196.) communications. at pp.
Permitting distortions. In the plaintiff proceed would other produce derivative filed in typical action the wake of tortious allegedly litigation- communications, related had aggrieved been party occurred, antecedent in which the proceeding challenged communications and now seeks redress for them. injuries to have resulted from Unless conditions to a malicious action are requisite prosecution pleaded circumstances, and proven, 47(b) section relief in only denies such not because that result is deemed secure the interest necessary greater because, courts, ensuring unhindered access to the as we noted but also Silberg, supra, 50 Cal.3d itself an original litigation provides efficient forum which to trial the bias of witnesses and “expos during [e] evidence, falsity thereby enhancing finality judgments an avoiding unending an evil far worse than roundelay litigation, (Id. occasional unfair result.” at p. short, claim for relief here would permitting plaintiff’s upset
the carefully constructed balance freedom of an individual to between “the seek redress in being courts and the interest of a defendant potential free (Oren Greenberg, from unjustified litigation” Royal Venture v. Oaks Bernhard, Karma, Inc., supra, 1169) Weiss & by effectively Cal.3d at p. destroying in which a availability privilege litigation case *16 for the attorney was to claim that the conduct of the adversary prompted ultimate of the constituted solicitation. Whatever the outcome party opposite lawsuit, will have been litigation unfair additional ensuing competition claims stifled. fomented and the meritorious presentation potentially unfair that tack his claim under the Our conclusion plaintiff’s pleading in this case is litigation statute does not override the competition privilege unfair competition reinforced the fact that the by policy underlying under the statute can be other than by multiple parties plaintiff vindicated Code section 17204. standing broad of Business and Professions provision client, include the Apart litigants Attorney from the overreached these General, (Ibid.) and certain attorneys, city attorneys. Importantly, district who, are adversaries collateral members of unlike not public plaintiff, the same have unfair litigation involving attorneys standing pursue also noted, ante, (Ibid.) claims under the statute. both competition Finally, State Bar and are authorized to additional prosecutorial pursue authorities in the amended against attorney sanctions solicitation of the sort complaint. access,
Given the and of thе favoring judicial importance policy effectuating policy, role as a means of played by litigation privilege 47(b) we may by casting conclude that not avoid the bar of section claim injunctive his as one for relief under the unfair statute. competition
V The of the Court of is reversed and the cause is judgment Appeal remanded with directions to affirm the of the trial court. judgment
Lucas, J., Mosk, J., Kennard, J., C. and concurred. BAXTER, J. result as to reasoning plain- concur majority’s I dissent, however, I the majority’s tiff’s claim for from damages. respectfully decision to the extent that it claim for relief. precludes plaintiff’s In an the majority its view of attempt impose good public policy, a detailed and considered result is judicially repeals legislative remedy. even A unaf- entirely more anomalous than the who is approach. person fected enjoin solicitation can an action to illegal attorney bring however, A misconduct. harmed person, directly attorney’s who is more illegal solicitation has no direct The result is even judicial recourse. time troublesome on a broader level. an era of increased budgetary constraints on this state’s effective enforсe- judiciary, majority precludes ment of the ban on unlawful attorney solicitation. solicitation, as defined Busi- acknowledges
The majority ante, Professions unlawful. (Maj. opn., ness and Code section turn, *17 that, 1200.) in Business and Code provides Professions section in unfair who has to “Any engages, engaged, engage or person proposes (Italics may enjoined be court any competent jurisdiction.” competition that, added.) We have “. . is not restricted explained competition’ . ‘unfair to or conduct to business any fraudulent but extends deceptive unlawful The intended to courts to practice Legislature .... apparently permit enjoin conduct in ongoing wrongful activity business whatever context such Television, (Committee . . might occur . .” on Inc. v. General Children’s 783, 197, (1983) Corp. Foods 35 673 P.2d Cal.3d 209-210 Cal.Rptr. [197 660], Furthermore, added.) italics second Business and Professions Code section 17204 makes clear that member of the seek virtually any public may injunctive relief from unlawful business practice.
These statutes to one Unlawful solicita- point simple attorney conclusion. be tion the may enjoined. For most the not contend part, majority does otherwise, that acknowledging almost member of the has public standing to an action to bring enjoin such misconduct. The majority’s only exception conduct, is, is the harmed the the person directly that illegal person against whom the was I litigation shall I unlawfully why solicited. explain cannot concur this result. strange majority’s public
1. The policy view of I think it important to meet that majority’s fundamental sound premise public policy supports majority’s choice to disregard statutory pro- injunctive visions for relief. The view to be this court majority’s appears may disregard statute whenever so facilitates our doing policy personal This preferences. is not tenable. No matter how court strongly might this believe that good relief, public should policy prevent injunctive Legisla- ture has determined or good for bad is available. “Our function is not to judge (Wells wisdom of Bank Fargo statutes.” v. 1082, 841, Superior Court (1991) 53 Cal.3d 1099 811 P.2d. Cal.Rptr. [282 1025]; Delaney 785, Superior v. (1990) Court Cal.3d 50 804-805 [268 753, 934].) 789 Cal.Rptr. P.2d What a statute should beyond do is our (New to decide. authority York Times Co. v. Court 51 Superior Cal.3d Cal.Rptr. 811].) 796 P.2d We have no valid basis on Indeed, which usurp Legislature’s role. Business and disregarding Professions Code sections the majority necessarily also disregards Code of Civil Procedure section which “In the states: instrument, of a construction statute or officе judge simply therein, ascertain and declare what is terms or in substance contained not omitted, to insert what has been or to omit what has . . . .” been inserted Moreover, the contradicts its own majority public policy argument favor of unfettered and the illegal resulting solicitation access to the courts. To make its result more the majority acknowledges that the “broad palatable, standing provision of Business and Professions Code section 17204” allows other “multiple parties than unlawful solicita- plaintiff’ enjoin ante, tion. (Maj. enforcers include opn., potential everyone other than the whom the unlawful party against solicitation is directed: General, district Attorney certain attorneys, city attorneys, city prosecutors, and most importantly, any member of who is not the public soliciting attorney’s adversary Put underlying litigation. plain language, one, result is that every member of the public—except victim—can *18 seek injunctive By relief. a unlimited class of acknowledging potentially plaintiff-enforcers, the majority seems to undercut its preferred policy unfettered judicial access.1
The reliance on majority’s enforcers is another nonparty questionable There is no evidence in respect. the record that officials any public identified have ever intervened in by majority a to private dispute enjoin unlawful attorney solicitation. Even more unrealistic is the notion that private citizens with no stake in a will time and resources to dispute expend seek relief injunctive that will not benefit The them. reliance on majority’s Either, above, private enforcers is as noted it defeats unfet- contradictory. or, tered access by allowing an unlimited class alternatively, of enforcers unrealistic, reliance is view that unaf- thereby undercutting majority’s fected citizens will solve the problem of unlawful solicitation. attorney most is
Perhaps interesting rule sows the seeds of its majority’s rule, own Under demise. the majority’s a whom an person against attorney unlawfully seeks litigation cannot seek relief. nonaffected injunctive Any however, Thus, member of the public, is allowed to seek such relief. all the solicitation victim need do to avoid the majority’s ability restriction of his friend, relative, seek injunctive relief is to or persuade colleague bring injunctive action as a member of the public—a procedure Indeed, majority explicitly there approves. legal is no or ethical reason why action, victim solicitation could not agree to fund such an e.g., by paying citizen-plaintiff’s costs fees. The serves little legal majority purpose a rule under creating which a victim can do that which he indirectly cannot do directly. 1Although person I have referred to the against litigation unlawfully whom solicited as victim, being a I prospective also believe the unlawfully client who is solicited is a victim as Apparently, well. majority would prospective allow the client to seek relief. This result creates an unfair against litigation distinction between victims. person The whom much,
is unlawfully solicited suffers at least as probably greater, person harm than the who is a prospective client.
Nor should we nature of the unlawful conduct the forget egregious rule majority’s will allow to occur unabated. Business Professions Code sections 6152 and 6153 make it unlawful and criminal for an use attorney a “runner or to solicit for the capper any attorney any ... business” Code, (Bus. or & public private place. Prof. Put simply, § Legislature chose sections 6152 and 6153 to make unlawful and criminal however, the worst forms of majority, solicitation. precludes effective enforcemеnt of the legislative ban. 2. Statutory conflict
1 also from depart the majority’s to the it approach “apparent conflict” perceives between Civil Code (b) (hereafter, section subdivision Civil 47(b)) Code section and the Business and Professions Code for provisions injunctive relief from unlawful business Civil Code practices. section 47’s privilege communications course a judicial proceeding was first enacted in more than a century ago. Business and Professions Code solicitation, sections 6152 and the statutory proscriptions of attorney later, were enacted more than 60 I years 1939. find it difficult to believe *19 the Legislature intended to make prohibit—indeed, criminal—that which was privileged.
Moreover, when, the Legislature enacted Business and Profes- sions Code sections 17203 and for providing injunctive relief from an unlawful business practice, it was clear that attorney solicitation was an unlawful practice under already-enacted Business and Professions Code section 6152. It is not reasonable to conclude that the Legislature would have provided for injunctive relief against an unlawful practice (attorney solicitation) if the Legislature believed such relief was Civil prohibited by Cоde 47(b). section The majority presumably believes the Legislature was unaware of a prohibition Civil 47(b) Code against section injunctive relief and inadvertently created a conflict by for such relief providing under Business and Professions Code sections 17203 and 17204.1 am reluctant to attribute such ignorance to the Legislature. I am also nonplussed as to how the majority finds a conflict between the two statutes. When the Legislature enacted Business and Professions Code sections 17203 and 17204 allowing relief, for injunctive there was no decision by this court holding solicitation is Thus, under privileged Civil 47(b). Code section when it enacted sections 17203 and the Legislature could not have created a conflict between those provisions that did something not then exist—the privilege for unlawful attorney solicitation that we announce first time today. The conflict perceived by the is of its majority making, own not the Legislature’s.2 events
Subsequent also refute the majority’s view that relief is available to those only not harmed the unlawful In by solicitation. Legislature amended Business and Professions Code section 6154 to provide contract for “Any professional services secured at law or by attorney firm in law this state through services of a runner or is void. capper action any firm against any or law under attorney the Unfair Practices Act . . . any judgment shall include an order or law firm divesting attorney fees any and other received compensation such void pursuant minimum, contract.” At a this amendment makes clear that the State Bar disciplinary was system not viewed by as the Legislature exclusive means of Moreover, enforcing ban statutory on solicitation. majority creates an anomaly light of this divestiture The victim provision. of unlawful attorney solicitation is from precluded any relief—compensatory citizen, however, or injunctive. other Any can obtain not only injunctive relief, but also the additional relief under monetary Business and Professions Code section 6154. The litigation equivalent of a hunter bounty can obtain monetary relief without A showing any harm. harmed demonstrably litigant, however, is handed only platitude as to the need for more Under litigation. view, the majority it seems if but the everyone victim is protected or compensated.
3. Majority’s authorities I
Nor am persuaded
authorities on which the
relies. The
majority
obvious point should be made first. None of the decisions cited
*20
and,
dealt
majority
with attorney solicitation
more
none of them
important,
2The majority states that
is late
day
to contend
“[I]t
that communications with ‘some
relation’ to an anticipated
ante,
lawsuit are not
privilege.” (Maj.
1194.)
within the
opn.,
p.
at
This statement misses the
Although
mark.
some communications have been held to be
privileged,
in none of
by
the cases cited
majority
has
solicitation been deemed
unlawful
(Albertson
privileged.
Raboff(1956)
v.
46 Cal.2d
[filing
pendens];
375
P.2d
of lis
[295
405]
Labs,
Block v. Sacramento
(1982)
Clinical
Inc.
49 A.L.R.4th which calls the point,” “closest majority precedent that, court noted of Civil privilege applying judicial proceedings 47(b), Code law section court would not between common distinguish The statutory damages privacy. causes action for for invasion of court relevant, did not consider issue though, as to relief. What is injunctive that pursue the court allow plaintiff did an action substantial statutory penalties. Ribas makes clear that the under Civil Code privilege remedies, 47(b) section not does all those necessarily preclude especially created If by other statutes. allowed Ribas was to seek plaintiff substantial I monetary penalties, see no reason why present plaintiff all, should not be allowed to seek injunctive injunctive relief. After relief is less than likely have a on monetary penalties to effect court access. chilling
Equally is the reliance inapposite unpersuasive on Court of majority’s Appeal cases our decision in Fireman’s Fund applying Moradi-Shalal v. Ins. Companies (1988) 46 Cal.3d (Moradi P.2d Cal.Rptr. 58] Shalаl), 790.03, in which we held that Insurance Code section subdivision (h) did not provide private cause of action for against insurers. damages The linchpin holding our has Legislature was that not manifested “[T]he Cal.3d, intent to create such a (46 cause of private action.” at relief, Moradi-Shalal did injunctive not seek there was so no issue before this court to whether such an action been would have under proper extent, however, Business and Professions Code or otherwise. To the that issue, we touched on the we suggested would have been appropriate. More specifically, to the response argument our decision insurers, would eliminate any meaningful redress for abuses we explained that, courts retain jurisdiction “[T]he civil or impose damages other remedies against insurers (Id., common law . . appropriate actions . .” added.) italics
In the Court of subsequent cases Appeal noted majority, *21 plaintiffs Moradi-Shalal, sought to overcome the supra, effect of 46 Cal.3d 287, by recasting their causes grounds of action on than the other Insurance notes, Code. As the majority the Courts refused to allow the Appeal however, attempted circumvention. The much majority, reads too into those decisions. The first was Lee Companies (1988) v. Travelers 205 Cal.App.3d 468], 691 in Cal.Rptr. [252 which the court refused to the plaintiff allow Moradi-Shalal, 287, plead around supra, 46 Cal.3d alleging common law 1210
causes of action for There was no issue as to relief damages. injunctive Indus- under the and in Business Professions Code or otherwise. Similarly, Indemnity Superior trial Co. v. Court (1989) 209 1093 Cal.App.3d 655], 1093 the refused to the plaintiff court allow Cal.App.3d Cal.Rptr. [257 Moradi-Shalal, 287, supra, damages to recover to avoid 46 by seeking Cal.3d under Business and Professions Code section there was no Again, 17203. Superior true in Maler Court issue as to The same injunctive relief. was v. and Doctors’ Co. Ins. (1990) in 220 1592 Cal.App.3d Cal.Rptr. [270 222] Superior 674], Services v. Court (1990) 225 1284 Cal.App.3d Cal.Rptr. [275 Moradi-Shalal, supra, in which the courts did not consider whether 46 287, injunctive Cal.3d relief. precluded
In one cited reference only cases is there even a majority Superior Ins. Co. v. Court injunctive relief. In 216 Cal.App.3d Safeco (Safeco), sought damages 1491 under Cal.Rptr. both plaintiff 585] 17200, the Insurance Code and Business and Professions Code section and Moradi-Shalal, the court supra, this circumvent correctly rejected attempt claims, In Cal.3d 287. the court also stated that describing plаintiff’s Code], “Under this second Business and Professions theory [the injunction, to an claimed an entitlement additional compensatory damages, action, compensation for prosecuting punitive damages, attorneys’ (Safeco, supra, added.) fees.” at italics The court Cal.App.3d that in explained facts at bench are from those indistinguishable “[t]he Moradi-Shalal[, course, supra, (Id., 46 Cal.3d Of 287].” entirely correct. The cases were different because Moradi- view was not in Shalal, supra, 46 Cal.3d there was no claim for relief. As injunctive Safeco, supra, 216 important, nothing that the Cal.App.3d suggests claim for relief injunctive was more than a anything makeweight allegation. For all practical suit to have been for purposes appears compensatory punitive The fact that the never damages. court even discussed claim for (the injunctive entire discussion was a mere three opinion paragraphs) suggests no serious issue was ever raised as to relief. short,
In relies on five majority Court of decisions—four of Appeal all, which have no relevance at and one of which has a three-word reference to the issue. Moradi-Shalal,
The majority’s reliancе on the supra, progeny Cal.3d other, fundamental, First, two misplaced more perhaps respects. intended, issue that case whether was had Legislature enacting Code, 790.03, (Ins. statute particular (h)), subd. cause to create a private § damages. of action light of our cause of action holding that no such *22 intended, have courts to subsequent was it would been anomalous for (i.e., the same damages) conclude that the same could be recovered for misconduct, under Whether them a different statute. merely by seeking different relief under a different is another sought question. could be statute
Second, context, with the were faced two post-Moradi-Shalal courts We held in no Legislature statutes. Moradi-Shalal that intended private 790.03, Code, (Ins. (h)). cause of action under statute To allow one subd. § the same relief under a different statute would that the conclusion require Legislature give intended with hand took another. away one what it with not That is now contrary, situation before us. To the has Legislature in one statute provided for relief for unlawfiil practices. business Code, (Bus. & Prof. There is no statute in which the competing § Legislature has manifested intent to relief. preclude such
4. majority’s practical The result Rather than buttressing deci- integrity judicial system, today’s sion taints it. judicial access to the is Adequate system thing. Illegal one access is one another. No disputes that solicitation is attorney wrong unlawful, repugnant—so much that the Legislature so made it even has court, however, The criminal. victim refuses allow the of this crime any direct redress. I to a Up point, agree, reflected in the by my concurrence majority’s decision not to damages. allow recovery But prohibiting victim from injunctive relief seeking the balance too in favor tips far criminal conduct.
Conversely, allowing injunctive relief in any meaningful does not way legal restrict access to courts. Unlike a claim damages, for separate request injunctive relief can be decided If quickly relatively easily. found, matter, solicitation is not that will be the end of the and the attorney (as found, well as his clients) will have If full is judicial access. solicitation bud, it be, will nipped be as it any right should but to legal access Moreover, remains unimpeded. regardless of whether solicita- any unlawful found, tion is underlying action allowed proceed, regardless whether it has merit. That alone ensures full access for judicial litigants. Thе only person whose access is restricted is the engages who unlawful solicitation.
Prohibiting injunctive relief also makes no Why sense to victim. must he idly stand by while him litigation against is unlawfully solicited? That is itself, a crime in and of regardless of the possible merit of litigation. *23 victim should not be denied the to the criminal statutory right enjoin conduct.3 I
Finally, am troubled fundamental that we must majority’s premise take the draconian measure of a victim unlawful refusing solicitation his concrete specific, statutory so that we can ensure unfettered access right the courts. California has tens of thousands of ethical competent, attorneys. Any person with even a remotely meritorious claim can and will find an (One attorney. rule is to consequence majority’s penalize vast who majority attorneys solicitation.) refuse to unlawful engage By solicitation, enforcing the statutory remedy for unlawful we would not be restricting judicial access for claim or any person. only person who would be at the courthouse stopped door would be the who stoops unlawful engage solicitation. His client can come that door and through have his full day court. We need not encourage the crime of solicitation to ensure judicial access. reasons,
For I foregoing concur reversal of the majority’s judgment of the Court of to the extent that the Appeal allowed judgment plantiff seek for the damages unlawful solicitation. I would affirm the however, Court of Appeal’s judgment, to the extent that it allowed plaintiff to seek injunctive relief.
Panelli, J., J., and George, concurred. majority suggests 3The adequate victim has recourse in the form of a malicious ante, (Maj. 1200.) action. prosecution opn., ignores at impractical. That is It the fact that unlawful solicitation is a crime in and of itself. Whether the solicitation is unlawful has Thus, nothing to do with whether the underlying action solicited is meritorious. even if the successful, litigation proves retroactively that does not eliminate the fact that a crime was action, however, committed. The defendant in such an for could not thereafter recover prosecution malicious because he could not show that it had terminated in his favor. Nor is it clear that the majority recovery would allow even for ultimately solicitation of an action that proves meritless. The majority apparently would allow malicious recovery damages action, ante, prosecution of the but wrongful not for the solicitation (Maj. opn., itself. fn.