Beaty v. Raasch

Filed 4/2/07 Beaty v. Raasch CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County. Soussan Bruguera, Judge. Affirmed in part and dismissed in part.

Jamie R. Schloss for Plaintiffs and Appellants.

Procter, McCarthy & Slaughter, William M. Slaughter, Gabriele Mezger-Lashly and Jeffrey J. Halfen for Defendants and Respondents.

Lan P. Nguyen, in pro. per., for Objector and Respondent.

In the underlying action, appellants Pamela Beaty and Kandis Leigh alleged that their landlords permitted toxic mold to infest their apartment, and then wrongfully terminated their rental agreement. Arthur Travieso, Lan Nguyen, and the law firm of Lewis, Brisbois, Bisgaard & Smith (LBB&S) represented respondents Harriet Raasch and Karen Raasch before and during the action.^[1] Appellants challenge orders denying them leave to assert claims against Travieso, Nguyen, and LBB&S, and to depose the attorneys who had represented Harriet Raasch and Karen Raasch. We affirm the denial of leave to assert claims against these attorneys, and dismiss the appeal regarding the denial of leave to depose opposing counsel.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Appellants initiated the underlying action in July 2004. On July 19, 2005, they filed their second amended complaint (SAC) against Harriet Raasch and Karen Raasch, as an individual and as trustee of the Raasch Trust. Also named as defendants were Harold Raasch, who had died in February 2004, and Daniel Skinner, who performed work on appellants apartment building. The SAC asserted claims for breach of contract, negligence, forcible detainer, wrongful eviction, conversion, violations of several statues governing landlord-tenant relations, and violation of the Los Angeles City rent control ordinance.

The SAC alleged the following facts: In September 1998, appellants rented one of two apartments in a building owned by Harriet and Harold Raasch. The apartment suffered from problems to its roof, water heater, electrical system, plumbing, and toilet, which the Raasches failed to repair adequately, despite appellants requests, and it developed an infestation of toxic mold due to the defective plumbing and roof. In June 2003, Harold Raasch retaliated against appellants for their complaints about the plumbing by illegally raising the rent. When the other building tenant reported the rent increase, inspectors for the City and County of Los Angeles examined the building and issued citations to the Raasches, who nonetheless failed to remediate the deficiencies in the building.

The SAC further alleges that after appellants and the other building tenant withheld their rent for December 2003, Harold Raasch arranged for a mold inspector to examine the building. On December 13, 2003, the inspector told appellants that they had a lawsuit on their hands, asked them to vacate the premises, and informed them that they would not be able to retrieve their possessions until December 19, 2003. The inspector also said that Harold Raasch would pay for their stay in a hotel while the apartment was being repaired.

According to the SAC, the Raasches and their daughter, Karen Raasch, maintained the building in a negligent fashion, and wrongfully terminated appellants tenancy, denied them access to their apartment and belongings for four months, and demanded rent for periods when the apartment was not habitable. It also alleges that the Raasches agents and attorneys, including Travieso and Nguyen, engaged in misconduct in connection with the termination of appellants tenancy and the loss of access to their belongings.

On October 18, 2005, appellants sought leave to amend the SAC to name Travieso, Nguyen, and LBB&S as Doe defendants under Civil Code section 1714.10 (section 1714.10), which establishes prefiling requirements for a complaint alleging a conspiracy between a lawyer and his or her client. Shortly thereafter, they filed a motion for leave to take Traviesos deposition. After a hearing on the motions on December 12, 2005, the trial court filed an order denying them on April 12, 2006.^[2]

DISCUSSION

Appellants contend that the trial court erred in denying them leave to (1) assert claims against Travieso, Nguyen, and LBB&S under section 1714.10 and (2) depose opposing counsel.^[3]

A. Prefiling Requirements

Appellantsdo not dispute that their proposed amendments to the SAC are subject to the prefiling requirements of section 1714.10, and thus our inquiry is

limited to whether they satisfied these requirements.^[4]As we explain below, they did not do so.

1. Civil Code Section 1714.10

Subdivision (a) of section 1714.10 provides: No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorneys representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. . . .

[T]he legislative purpose of section 1714.10 [is] to eliminate frivolous allegations that attorneys have conspired with their clients. This statutory purpose is served by a construction that requires a prefiling procedure to determine whether the proposed conspiracy pleading is legally sufficient, and whether it is supported by a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the petitioner is credited. If either of these requirements is not met, the petition must be denied; if both are satisfied, it must be granted. (Hung v. Wang (1992) 8 Cal.App.4th 908, 931-932.)

Because section 1714.10 requires plaintiffs to show that they possess[] a legally sufficient claim which is substantiated, that is, supported by competent, admissible evidence (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719), their burden is similar to that imposed upon plaintiffs responding to a motion for summary judgment. (Hung v. Wang, supra, 8 Cal.App.4th at p. 931.) Whether a plaintiff has carried this burden is a question of law (ibid.), which we review de novo (Enterprise Ins. Co. v. Mulleague (1987) 196 Cal.App.3d 528, 540).

Appellants contend that they made an adequate prima facie case under section 1714.10 that Travieso, Nguyen, and LBB&S planned with their clients to evict appellants in a wrongful manner, and to violate numerous laws regulating landlord-tenant relations. Generally, subdivision (a) of section 1714.10 requires the party seeking to assert a conspiracy claim to file a verified petition . . . accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. However, this requirement is satisfied if the party submits an amended complaint, together with a verification and supporting declarations. (Burtscher v. Burtscher (1994) 26 Cal.App.4th 720, 725.)

At the threshold, respondents contend that appellants showing does not

meet these procedural requirements.^[5] In addition, they contend that the SAC does not adequately plead conspiracy claims against Trevieso, Nguyen, and LBB&S. On this matter, we note that the sole express allegation of a conspiracy in the SAC occurs within the claim for conversion, although the SAC elsewhere alleges that Treviso and Nguyen were guilty of forcible entry and detainer, and that they had engaged in other misconduct.

It is unnecessary for us to resolve these contentions. As we elaborate below (see pt. A. 4, post), appellants have not made the showing required under section 1714.10, even if we assume that the SAC contains properly pled claims and give full credit to appellants evidentiary showing.^[6]

2. Conspiracy

We begin by examining the principles applicable to conspiracies involving attorneys. Generally, [a] civil conspiracy does not give rise to a cause of action unless a civil wrong has been committed resulting in damage. The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from an act done in furtherance of the common design. [Citation.] (Thompson v. California Fair Plan Assn. (1990) 221 Cal.App.3d 760, 767.)

A conspiracy is not itself a tort, and thus it does not engender liability unless it involves an underlying tort. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 510-511.) The significance of a conspiracy lies in its capacity to spread liability for the tort: [c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] (Ibid.) However, liability does not spread to everyone purportedly associated with a conspiracy. As our Supreme Court explained in Doctors Co. v. Superior Court (1989) 49 Cal.3d 39, 44 (Doctors Co.), absent special circumstances, a claim for conspiracy fails if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing and was acting only as the agent or employee of the party who did have that duty.

In Doctors Co., the court explained the conditions under which attorneys may be liable for a tort under the theory that they engaged in a conspiracy with their clients. There, the plaintiff asserted a tort claim against an insurer, attorneys the insurer had hired to represent an insured party, and an expert witness, alleging that they had conspired to violate a provision of the Insurance Code. (Doctors Co., supra, 49 Cal.3d at pp. 42-43.) The court explained that attorneys may be liable as coconspirators with their clients when (1) the underlying tort involves a breach of the attorneys own independent duties to the injured party or (2) there is no breach of the attorneys own duties, but they acted in furtherance of their own financial gain. (Id. at p. 47; see also Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 391-392.) The court thus held that the conspiracy claim against the attorneys failed because the pertinent statutory duty attached only to the insurer, and nothing suggested that the attorneys had acted for their individual advantage, beyond their role as the insurers agents. (Doctors Co., supra, 49 Cal.3d at p. 45.)

The rule in Doctors Co. receives further clarification in Pavicich v. Santucci, supra, 85 Cal.App.4th at pages 395-396. As the court in Pavicich indicated, Doctors Co. did not alter basic facts about conspiracy law, including that a party subject to the duty underlying a tort is liable as a conspirator for the tort only when the party is not immune from liability based upon applicable substantive tort law principles. (Quoting Applied Equipment Corp. v. Litton Saudi Arabia, Ltd., supra, 7 Cal.4th at p. 514.) Accordingly, an additional limitation on an attorneys liability under a theory of conspiracy stems from the so-called absolute privilege in subdivision (b) of Civil Code section 47, which provides broad protection to participants in litigation and other official proceedings.^[7] (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 567-584, pp. 828-862.) Generally, this privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.] (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)

The absolute privilege encompasses communications preceding a judicial or quasi-judicial proceeding, provided they have some relation to it. (5 Witkin, supra, Torts, 571, at p. 835.) So-called prelitigation statements may be privileged when they are made prior to a proceeding that has actually be[en] suggested or proposed, orally or in writing, provided that the proposal is in good faith -- as opposed to a mere negotiating tactic -- for the purpose of resolving the dispute, and the contemplated litigation is imminent. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34-35, italics omitted.) Thus, courts have held that demand letters from attorneys mentioning possible litigation while asserting a claim or requesting the settlement of a dispute fall within the absolute privilege. (E.g., Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919-922; Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 169-173; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 576-579.)

As our Supreme Court explained in Silberg v. Anderson, supra, 50 Cal.3d 205, the absolute privilege promotes several goals important to our system of justice, including ensuring free access to the courts, promoting complete and

truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, and thus it has been called the backbone to an effective and smoothly operating judicial system. [Citation.] (Id. at pp. 214-215, quoting McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 970.) Accordingly, [t]he only exception to its application to tort suits has been for malicious prosecution actions. [Citations.] (Silberg v. Anderson, supra, 50 Cal.3d at p. 216.) Aside from such actions, the absolute privilege generally defeats tort actions stemming from applicable communications, however labeled and whatever the theory of liability. (See 5 Witkin, supra, Torts, 563, at p. 820, quoting Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390.)

The absolute privilege thus bars liability for a tort predicated on a theory of conspiracy, when the tort itself relies on conduct within the scope of the privilege. In Pettit v. Levy (1972) 28 Cal.App.3d 484, 487-488, the plaintiffs asserted that the defendants had conspired to prepare and submit a forged building permit to officials of the City of Fresno to impede the plaintiffs own application for a building permit. The court held that this claim failed, reasoning that the preparation and filing of the permit fell within the scope of the absolute privilege. (Id. at pp. 488-492.) Similarly, in Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 641-643, the court concluded that the privilege precluded the claim that the defendants had conspired to prepare a forged will and file it in the probate court.

These principles apply to allegations of a conspiracy between an employer and its agents or employees. In Thompson v. California Fair Plan Assn., supra, 221 Cal.App.3d at page 763, the plaintiff filed an action for declaratory relief against an insurer, and obtained a judgment that reformed a fire insurance policy to name the plaintiff as an insured under the policy. The plaintiff later filed a second action against the insurer and two of its managers, alleging that they had conspired to deny the plaintiff benefits owed under the policy. (Id. at p. 764.) To avoid the statute of limitations, the plaintiff alleged that the last overt act of the conspiracy had been the insurers opposition to the prior lawsuit, which had occurred within the limitations period. (Id. at p. 766.) On appeal, the plaintiff argued that even if the insurers actions in the prior lawsuit were privileged, these actions supported the inference that the insurer had agreed with its employees to engage in other tortious conduct. (Ibid.) The court in Thompson rejected this contention, reasoning that the insurers defense of the first lawsuit could not serve as an overt act for the purposes of a conspiracy claim. (Id. at pp. 767-768.)

3. Appellants Showing

Appellants evidentiary showing supports the following version of the underlying events: In January 2003, appellants paid their rent late, citing financial problems. Subsequently, appellants and Robert Reincke, the other tenant in the building, complained about the building to the housing and health departments of the City and County of Los Angeles. On July 16, 2003, the City of Los Angeles Housing Department issued a notice to the Raasches that the building required repairs to its plumbing and remediation for sanitation problems. The Raasches refused to make the repairs.

On December 1, 2003, appellants and Reincke notified the Raasches by letter that they would withhold their rent until the Raasches complied with the implied warranty of habitability. On or about that date, plumbers worked on the building. In a letter dated December 2, 2003, the tenants asked the Raasches to halt the repairs pending the outcome of testing on the property. On December 3, 2003, the County of Los Angeles Department of Health Services (DHS) issued a notice directing the Raasches to eliminate possible water damage to the building.

In mid-December, Skinner, a mold remediator hired by the Raasches, told the tenants that the building contained dangerous mold, and asked them to move out. The next day, the tenants received a letter dated December 12, 2003, from Thomas Russell, who identified himself as the Raasches general counsel. Russell demanded that the tenants pay the rent that they owed, and stated that an unlawful detainer action would be filed against them if they did not comply within three days. He explained: [L]et me say that I have known Mr. and Mrs. Raasch for many years, and they are good and kind people. They have allowed you to pay rent late on many occasions, and they have tried to work with you. That day is over. You will now pay rent promptly in the full amount on the day that it is due, or you will be evicted.^[8]Russells letter also notified them that work would be performed on the building during the final two weeks of December 2003.

On or about the day that the tenants received Russells letter, Skinner again appeared at the building. He informed the tenants that he had been told that they were scumbags, and that a lawsuit would be filed against them. Appellants then called Harold Raasch, who asked the tenants to move out of the building while Skinner eliminated the mold, and assured them that he would pay for their hotel expenses. Appellants instead went to stay with a friend. Throughout the remainder of December 2003, they inquired about the date they could return to their apartment, and were told that the remediation work was incomplete.

On January 19, 2004, Rodney Mesriani informed Russell by letter that he represented appellants regarding their claims for loss and personal injury arising from the plumbing defects in the building.^[9]Mesriani attributed appellants injuries and loss of access to their property to the mold infestation, asserted that the Raasches were negligent in maintaining the building, and demanded that they accept full liability in this matter.

The next day, Russell replied to Mesriani that appellants demands were a scam by deadbeats. He also asked appellants not to contact the Raasches directly because Harold Raasch was critically ill, and indicated that other counsel representing the Raasches might respond. On the same date, attorney Travieso represented the Raaschs at a hearing in a DHS administrative action apparently initiated by appellants complaints. The hearing addressed compliance with the DHS notice regarding the building.

On January 21, 2004, Travieso and attorney Nguyen replied to Mesrianis letter, and informed him that LBB&S had been retained to represent the Raasches in those matters pertaining to the tenants building. Their letter stated: Sensitive to your clients concerns, the Raasch[es] agree to terminate and release your clients from their existing month-to-month tenancy.

In late January 2004, appellants learned from a health inspector that the building was to be inspected on January 26, 2004. On that date,

they went to the building, and discovered that it had big yellow tape all around it saying something like warning -- toxic. They encountered Karen Raasch, who was accompanied by Nguyen. According to Beaty, Nguyen was rude to appellants, and told them that their lease was terminated. Appellants were surprised by this announcement. When appellants asked whether they could enter the building to retrieve their possessions, Nguyen replied that if appellants tried to enter the house, they would call the cops, and appellants would be prosecuted for trespass.

On January 29, 2004, Nguyen informed Mesriani by letter that the inspector had been unable to complete the inspection because remediation was not finished, and suggested that appellants may have entered their apartment and disrupted the polyethylene containment field. She estimated that remediation would be complete on February 5, 2004, told Mesriani that no one should enter the building before a certificate of clearance was issued, and asked him to advise appellants not to go into their apartment without approval from her office.

On February 5, 2004, Nguyen again wrote to Mesriani and indicated that appellants had thwarted the remediation process. According to Nguyen, their failure to pay their utility bills had interrupted the electrical power needed for the remediation, and workers had seen someone resembling Mesriani entering the building. She reaffirmed that the Raasches had agreed to terminate their lease, and that appellants must obtain the Raasches permission before entering the building. She also stated that Harold Raasch had died on February 4, 2004.

Mesriani responded to these letters on February 10, 2004. He denied that he or appellants had entered the building, and suggested that homeless people had broken the containment field. He stated: Our clients are concerned with their health. They have no intention of reentering the property until the completion of the remediation process and issuance of [a] certificate of clearance to retrieve their possessions, if any are salvageable, and only with Mrs. Raaschs permission.

In a letter dated February 11, 2004, Nguyen rejected Mesrianis suggestion that homeless people had entered appellants apartment. According to Nguyen, there were signs of tampering in the apartment but no evidence of a forced entry, indicating that a key was used to gain entry. She stated that [a]s of February 11, 2004, the locks in the building had been changed to prevent further breaches of containment.

At some point in February 2004 -- according to Beaty, about one week after appellants attempt to enter the apartment in late January -- a city inspector contacted appellants. They went to the building, which was still tented. There they encountered Travieso and Nguyen, who were trying to reach Skinner by cell phone about the status of the certificate of clearance. The city inspector who was present said that he would not enter the building in the absence of this certificate. When appellants asked Travieso if they could retrieve some of their possessions or move back in, he said, No, you are not allowed on the premises. Your keys will not work because the locks are changed. He added: If you try to get in, [you] will be trespassing. If you do anything, you will be sued.

A certificate of clearance was issued on February 17, 2004. On March 11, 2004, attorney Jamie Schloss informed Nguyen that he had been engaged to represent appellants, and asked her to set a date on which they could retrieve their belongings. In a letter dated March 16, 2004, Nguyen responded that they could enter the building on March 23, 2004. She reaffirmed that their tenancy had been terminated, and asked Schloss to estimate appellants damages for purposes of a settlement. After further correspondence between Schloss and Nguyen, appellants regained possession of their belongings on March 27, 2004.

In a supporting declaration, Schloss offered other evidence bearing on the underlying events. He tendered an offer of proof that an expert would testify that mold remediation in the building should have taken no more than 30 days. He also stated that shortly after appellants retained him, he phoned Nguyen, who was rude and referred to appellants in derogatory language. In addition, he stated that when appellants initiated litigation, Travieso made false statements to him during discovery, improperly communicated with the discovery referee, and engaged in misconduct with respect to pleadings.

4. Analysis

In our view, appellants failed to establish that they could prevail on any claim that they allege against Travieso, Nguyen, and LBB&S. As we explain below, their showing indicates only that (1) these attorneys acted as the agents of their clients, and that (2) they engaged exclusively in communicative conduct within the scope of the absolute privilege.

We limit our analysis to the claims that appellants address on appeal, namely, those related to what appellants characterize as a wrongful self-help eviction. (9 Witkin, Cal. Procedure, supra, Appeal, 594, at pp. 627-629.) There are nine such claims: six causes of action for violation for various statutes and a municipal ordinance governing landlord-tenant relations, including a claim for wrongful conduct to force a tenant to vacate; a cause of action for wrongful eviction; a cause of action for forcible entry and detainer; and a cause of action for conversion.

Of these claims, only three -- the claims for forcible entry and detainer, conversion, and wrongful conduct to force a tenant to vacate -- assert violations of duties that fall on persons other than landlords. (Code Civil Proc., 1159, 1160 [defining conditions under which [e]very person is guilty of forcible entry and detainer]; Pen. Code, 418 [Every person engaged in forcible entry or detainer commits a misdemeanor]; see 5 Witkin, supra, Torts, 699, at p. 1023 [Conversion is the wrongful exercise of dominion over personal property of another.]; Pen. Code, 518 [defining extortion].) The remaining duties underlying appellants claims attach solely to landlords. (Civ. Code 789.3 [landlords duty not to interrupt utilities], 1927 [landlords duty to respect tenants quiet possession], 1940.2 [landlords duty to refrain from wrongful conduct to influence tenant to vacate property], 1942.4 [landlords duties regarding rent], 1942.5 [lessees remedies for landlords improper conduct], 1950.5 [landlords duties regarding security deposits], 1954 [landlords right to enter property]; Los Angeles Mun. Code, 151 et seq. [defining landlords duties with respect to eviction] ; 7 Miller & Starr, Cal. Real Estate (3d. ed. 2004) 19:156-19:157, pp. 490-495 [wrongful eviction is a breach of the implied covenant of quiet enjoyment in the lease].)

Regarding the claims in question, nothing in appellants showing suggests that Travieso, Nguyen, and LBB&S acted outside their role as the Raasches attorneys in the matters for which they were engaged, or that they sought some financial gain or personal advantage beyond this role (Cooper v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252, 1259-1262 [attorneys do not act for their own financial gain under the rule in Doctors Co. when they earn only their fees as attorneys]). Moreover, their conduct, which consisted solely of asserting the Raaschess legal positions, fell with the scope of the absolute privilege.

Here, Russell raised the prospect of litigation to terminate appellants tenancy in his letter dated December 12, 2003. Once appellants vacated their apartment, Travieso and Nguyen told appellants and their counsel that their tenancy was terminated, and repeatedly asserted that the Raasches would resort to litigation if appellants tried to reenter the apartment without their consent. Appellants, on their part, engaged counsel who asserted claims against the Raasches.

In view of these facts, Russells reference to litigation to resolve the underlying disputes cannot be regarded as insincere, and there appears to have been a substantial possibility as early as December 2003 that litigation would soon occur. That appellants, rather than the Raasches, actually initiated litigation does not preclude Russells letter from triggering the absolute privilege. (Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th at p. 36 [it is immaterial whether party whose communications are at issue is potential plaintiff or defendant].) We therefore conclude that Russells letter triggered the absolute privilege, which encompassed his letter and the subsequent communications between the parties

and their counsel.^[10]

In view of these determinations, appellants conspiracy claims against the attorneys fail. The absolute privilege bars each claim against the attorneys, regardless of the duties allegedly breached under the claim.^[11](Thompson v. California Fair Plan Assn., supra, 221 Cal.App.3d at p. 763; Steiner v. Eikerling, supra, 181 Cal.App.3d at pp. 641-643; Pettit v. Levy, supra, 28 Cal.App.3d at pp. 487-488.) Furthermore, the rule established in Doctors Co. independently precludes the claims for conspiracy, to the extent that they rely on duties that do not attach to attorneys. (Doctors Co., supra, 49 Cal.3d at p. 45.)

Appellants contend that their prima facie case establishes that the attorneys went beyond the role of legal representatives, and thus are liable for the self-help eviction. In support of this contention, they rely on Burtscher v. Burtscher, supra, 26 Cal.App.4th 720. There, the plaintiffs complaint alleged that her former husbands current wife had wrongfully taken possession of her house while she was absent. (Id. at pp. 723-724.) When the plaintiff filed a motion under section 1714.10 to allege conspiracy claims against the wifes attorney, evidence was presented that the attorney had called a locksmith and storage company prior to the new wifes entry into the house, and arranged for the attorneys cousin, a deputy sheriff, to be present at the house. (Id. at pp. 726-727.) The attorney accompanied the wife to the house, where the locksmith opened the door, and the

deputy sheriff warned a guest in the house that he could be arrested for trespass. The attorney also arranged for the plaintiffs belongings to be placed in storage under the attorneys name and phone number. (Id. at p. 727.)

The court in Burtscher concluded that this showing established a prima facie case under section 1714.10. (Burtscher v. Burtscher, supra, 26 Cal.App.4th at p. 727.) It stated: [A]ttorney Hobbs resorted to self-help (with a little help from her cousin) in going onto the property and unilaterally retaking possession in circumstances where a lawyer would be serving a notice to quit, filing an unlawful detainer action and getting a court order. Hobbs actively participated in conduct that went way beyond the role of legal representative: self-help is not the practice of law. (Ibid.)

Here, appellants argue that there is sufficient evidence that Travieso and Nguyen, like the attorney in Burtscher, actively participated in the alleged self-help eviction, pointing to their communications with appellants counsel and their conduct during their encounters with appellants at the building. For the reasons explained below, we disagree.

At the outset, we observe that unlike Burtscher, the absolute privilege operated here to shield the attorneys from liability arising from their communications with appellants and their counsel. Accordingly, the key issue is whether the attorneys engaged in other conduct that exposed them to liability. On this matter, appellants contend that there is sufficient evidence that the attorneys (1) made and implemented the decision to have the locks in the building changed in February 2003, and (2) unilaterally decided to prevent appellants from entering the building during the inspection in late January 2003. They are mistaken.

Regarding item (1), appellants point to evidence that neither the Raasches nor their daughter claimed responsibility for the decision to change the locks. Harold Raasch died in early February, and Karen Raasch testified in her deposition that she was unaware that the locks had been changed. Concerning Harriet Raaschs role, appellants submitted her response to their requests in discovery for admissions: [Harriet Raasch] was not involved in the management of the subject property. [Her] deceased husband . . . and his general counsel were involved with the management of the subject property. When it became apparent that Harold Raaschs health was rapidly declining, Karen Raasch became involved with the management of the subject property. (Italics added.) Because appellants showing otherwise establishes that Russell was the Raasches general counsel, their evidence does not raise the reasonable inference that Travieso, Nguyen, and LBB&S were responsible for the change of the locks.

Regarding item (2), appellants point to Karen Raaschs deposition testimony regarding her encounter with appellants at the building in late January 2003. During the deposition, Karen Raasch testified that her counsel -- apparently, Nguyen -- advised her not to speak with appellants, and she overheard her counsel caution appellants that they should have their own attorney present. When she was asked why appellants were denied access to the building, Travieso advised her not to answer the question on the basis of the attorney-client privilege. The following exchange then occurred:

Q. Did you have, aside from speaking to your counsel, did you have any objection to [appellants] getting into [their apartment] on the day where you first met them?

A. I listen to my counsel.

Q. So you yourself had no objection to, other than speaking to counsel, you yourself had no objection to [appellants] getting access to [their apartment].

A. I felt it was up to my counsel.

In our view, this evidence does not support the reasonable inference that Nguyen unilaterally decided to bar appellants from the building. Appellants showing otherwise establishes that Nguyen told appellants that their tenancy had been terminated, and they would be subject to prosecution for trespass if they entered. In making these statements, Nguyen reaffirmed a legal position the attorneys had already asserted to appellants counsel on behalf of the Raasches in the letter dated January 21, 2004. That Nguyen made the statements in person does not place them outside the scope of the privilege. (Asia Investment Co. v. Borowski,supra, 133 Cal.App.3d at pp. 842-843; 5 Witkin, Summary of Cal. Law, supra, Torts, 567, at pp. 827-828.)

Appellants also suggest that the attorneys are liable on a theory of conspiracy, even though their own conduct may be privileged, because this conduct raises the inference that they agreed to participate in their clients wrongful conduct. As we have explained (see pt. A.2, ante), the court in Thompson v. California Fair Plan Assn., supra, 221 Cal.App.3d 760, rejected a similar argument, and thus we conclude that the attorneys cannot be liable as conspirators when their activity in connection with the alleged conspiracy consisted solely of privileged communications. In sum, appellants did not establish a prima facie case under section 1714.10, subdivision (a).

B. Request for Leave to Depose Opposing Counsel

Appellants also challenge the trial courts order denying them leave to deposed opposing counsel, including Travieso, Nguyen, and LBB&S. This order is an interlocutory, nonappealable order (Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 984), and appellants have not noticed their appeal from a final judgment in the action. Moreover, the order is not appealable under Code of Civil Procedure section 906 as one that involves the merits or necessarily affects the order denying their motion pursuant to Civil Code section 1714.10, which is appealable (Civ. Code, 1714.10, subd. (d)). Appellants do not suggest that the depositions were needed for their showing under Civil Code section 1714.10, and thus the denial of leave to depose opposing counsel is unrelated to the denial of their motion in connection with that provision. We therefore dismiss this appeal to the extent that it arises from the order denying appellants leave to depose opposing counsel. (Datig v. Dove Books, Inc., supra, 73 Cal.App.4th at p. 984.)

DISPOSITION

The appeal is dismissed insofar as it is taken from the order denying appellants leave to conduct the depositions of opposing counsel. The order denying appellants leave to amend their complaint under Civil Code section 1714.10 is affirmed. Costs on appeal are awarded to respondents Harriet Raasch and Karen Raasch, as an individual and as trustee of the Raasch Trust.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

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^[1] Nguyen has also filed a respondents brief on her own behalf.

^[2] Appellants filed their notice of appeal on February 1, 2006, after the trial court orally announced its rulings on December 12, 2005, but before it filed its written order. Because the trial court initially indicated that no written order would be filed and its rulings are recorded in the minute order for December 12, 2005, the minute order constituted an appealable order regarding these rulings. (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 55, pp. 584-585; Cal. Rules of Court, rule 8.104(d)(2).)

^[3] Following oral argument and after this matter had been taken under submission, appellants requested leave to augment the record with a letter from Nguyen to Skinner dated April 6, 2004, that was produced in discovery in January 2007, and several related documents. This request is denied as untimely, and because the letter and documents were never before the trial court when it issued the rulings at issue and are otherwise irrelevant to our disposition of this appeal.

^[4] Because appellants do not contend in their opening brief that the claims they intend to assert against Travieso, Nguyen, and LBB&S fall outside the scope of section 1714.10, they have forfeited any such contention. (9 Witkin, Cal. Procedure, supra, Appeal, 594, pp. 627-629.) We therefore examine whether their claims are adequate under theories of liability governed by section 1714.10.

^[5] This showing consists of the SAC and the proposed Doe amendments, accompanied by a verification by Beaty, declarations from Beaty and appellants counsel, and several documents, including discovery responses from respondents and a report from the discovery referee on an unrelated matter.

^[6] The parties raised numerous evidentiary objections to the pertinent adverse showing, but the trial court declined to rule on these objections at the hearing on appellants motion, despite a request from appellants. On appeal, appellants ask that we rule on their objections, but do not offer any argument in support of these objections in their opening brief. Accordingly, they have forfeited these objections. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 109; Horowitz v. Noble (1978) 79 Cal.App.3d 120, 138-139.)

^[7] Civil Code section 47 provides that [a] privileged publication or broadcast is one made: [] . . . [] (b) In any . . . (2) judicial proceeding . . . .

^[8] Regarding the matters cited in Russells letter, we note that respondents submitted evidence that appellants were repeatedly tardy in paying their rent in 2003, including their rent for the month of November 2003. Although appellants do not dispute this evidence, our analysis of their contentions does not rely on it (see pt. A.4., post).

^[9] Although appellants did not include copies of this letter and other relevant documents in their showing, their opening brief cites the copies of this letter and the other documents submitted by respondents. We therefore include these documents in our assessment of appellants showing.

^[10] The privileged communications include Russells statement that he believed appellants conduct was a scam by deadbeats and Nguyens alleged unflattering reference to appellants (5 Witkin, Summary of Cal. Law, supra, Torts, 561, at p. 818), as well as Nguyens and Traviesos threats of litigation against appellants (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 842-843; see Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 393-394).

^[11] Under appellants showing, the absolute privilege also bars their claims against the attorneys insofar as these claims may rely on theories of liability other than conspiracy, including direct liability and liability as aiders and abettors. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 208, fn. 6; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 374-375.) Accordingly, appellants failed to establish a prima facie case regarding the attorneys under a theory of aiding and abetting, which falls within the scope of section 1714.10 (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10).