Huang v. Nguyen

Filed 10/17/07 Huang v. Nguyen CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed.

Law Offices of James K. Sweeney and James K. Sweeney for Plaintiffs and Respondents.

Bander Law Firm and Joel R. Bander for Defendants and Appellants.

_______________________________________

Defendant and appellant Ted Nguyen filed an unsuccessful anti-SLAPP motion (Code Civ. Proc., 425.16). He did not seek appellate review. One year later, he filed a second anti-SLAPP motion in the same action, purportedly based on new law, under the authority of Code of Civil Procedure section 1008, subdivision (b). The motion was denied, on the basis that the new authority on which Nguyen relied was distinguishable. Nguyen now appeals, attempting to challenge on appeal not only the denial of his motion for reconsideration, but also the initial denial of his anti-SLAPP motion. We conclude that only the denial of the motion for reconsideration is before us, and that the trial court did not err in denying that motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nguyen and his former wife Yanxia Huang were litigating a contentious divorce. Nguyen believed that Huang had an immigration business from which she was earning income that she failed to report in the course of the marital dissolution action. Nguyen sought to prove the existence of this business by presenting, in court, documents from the immigration files of some of Huangs clients.

United States Citizenship and Immigration Services (CIS) keeps confidential files on all immigrant applicants. In order to obtain copies of such files, the person seeking access files a form which must include the notarized signature of the immigrant applicant whose file is the subject of the request. Nguyen obtained the complete CIS files of Huang and two of her clients, Jinru Wang and Yang Cui. Huang, Wang and Cui allege that Nguyen obtained these files by forging their signatures on the request forms.^[1] Huang, Wang and Cui first learned that Nguyen had obtained their CIS files when he submitted documents from the files in the dissolution action.^[2]

1. Allegations of the Operative Complaint

The operative complaint is the first amended complaint, filed on March 25, 2005. This appeal surrounds two causes of action invasion of privacy and intentional infliction of emotional distress. In their invasion of privacy cause of action, plaintiffs^[3]allege that Nguyens act of obtaining their CIS files by improper, unauthorized and illegal means constituted an actionable invasion of their privacy. In their intentional infliction of emotional distress cause of action, plaintiffs challenge [t]he unauthorized invasion, access, use and publication in the public record of their CIS files.^[4]

2. Nguyens Anti-SLAPP Motion

On May 26, 2005, Nguyen filed his anti-SLAPP motion. Adjudication of an anti‑SLAPP motion involves a two-part process. First, the moving party bears the burden of establishing a prima facie showing that the plaintiffs cause of action arises from the defendants free speech or petition activity. Second, if the moving defendant meets that burden, the burden then shifts to the plaintiff to establish a probability of prevailing.^[5] (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)

In Nguyens motion, he conceded that he had obtained the CIS files, but argued that his sole purpose in doing so was to present those files to the Family Law Court as proof that [Huang] was running an immigration business and concealing that fact, and her earnings, from the court. As Nguyen used the files in the course of his litigation with Huang, Nguyen argued that the anti-SLAPP statute applied, as the causes of action against him arise directly out of [his] protected activity of publishing immigration documents in a judicial proceeding. Nguyen noted that there was no contention or proof that he used the CIS documents for any other purpose or, in fact, even read them.

Nguyen then argued that plaintiffs would be unable to establish a probability of prevailing because the absolute litigation privilege of Civil Code section 47, subdivision (b) applies.^[6] Nguyen argued that the only harm plaintiffs possibly could have suffered from his act of obtaining the documents would have arisen from his publication of those documents in the course of his marital dissolution action, and such publication is absolutely privileged.

3. The Courts Ruling

The trial courts ruling is set forth in a minute order of August 2, 2005.^[7] That order states: Motion to Strike is denied. Plaintiffs lawsuit does not arise from defendants exercise of petition rights. Rather, plaintiffs action is based on the allegation that defendants illegally obtained confidential immigration files by forgery. Such an invasion of privacy claim arises from noncommunicative acts that are not covered by the litigation privilege. In other words, the court concluded that Nguyen had failed to meet his initial burden of establishing that the lawsuit arose from an act in furtherance of his petition rights, because the gravamen of the action was the noncommunicative act of obtaining the documents, not the communicative act of disclosing them in court. Nguyen did not appeal from the trial courts order denying his anti-SLAPP motion.

4. Renewed Motion

Exactly one year after the trial court denied his anti-SLAPP motion, Nguyen filed a renewed anti-SLAPP motion. Nguyen argued his anti-SLAPP motion could be renewed under Code of Civil Procedure section 1008, subdivision (b), which permits a party who unsuccessfully sought an order to make a subsequent application for the same order upon new or different facts, circumstances, or law. Nguyen purported to rely on new facts and new law. As for the allegedly new facts, Nguyen relied on the recently-acquired deposition testimony of plaintiffs, in which they admitted that they learned defendant had obtained the CIS files only when he used them in his dissolution action, and that plaintiffs had no knowledge that he even looked at the files beyond that. As to allegedly new law, Nguyen relied on Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen), a case decided in February 2006. Nguyen argued that Rusheen expanded the litigation privilege and the anti-SLAPP statute by holding that w[h]ere the gravamen of the action is a protected communicative act, necessarily related non-communicative acts are also protected.

5. The Courts Ruling

Plaintiffs opposed the motion, specifically arguing that Nguyen could not revive his right to appeal from the denial of his anti-SLAPP motion by simply renewing the motion. In any event, plaintiffs argued that Rusheen did not undermine the trial courts conclusion in any way.

On August 24, 2006, the trial court denied the motion, characterizing it as a motion for reconsideration. The court stated, The new law cited by defendant is distinguishable. In [Rusheen], the Court concluded that because the [plaintiffs] claim for abuse of process was based on the communicative act of filing an allegedly false declaration, . . . the post-judgment enforcement efforts were likewise privileged. In that case, the communicative act that gave rise to the suit was privileged. In our case, the act that gave rise to the suit was not a privileged communicative act. In other words, the procur[]ing of the immigration files was not a privileged act.

6. Notice of Appeal

On October 6, 2006, Nguyen filed a notice of appeal from the August 24, 2006 order. Although the trial court had identified Nguyens renewed motion as a motion for reconsideration, Nguyen simply indicated in his notice of appeal that the court had denied his anti-SLAPP motion. Moreover, in his designation of the record on appeal, he did not designate the proceedings on his initial anti-SLAPP motion.

ISSUES ON APPEAL

On appeal, Nguyen briefs the case as though we are to consider de novo, whether he is entitled to a dismissal of the action under the anti-SLAPP statute. We conclude, instead, that the sole issue before us is whether the trial court properly denied Nguyens renewed motion. In other words, we do not consider the merits of the August 2005 order denying Nguyens anti-SLAPP motion; that order is final. Instead, we simply consider whether Nguyens purported new facts and new law required reconsideration of that order. Concluding they did not, we affirm.

DISCUSSION

1. Scope of Review

Code of Civil Procedure section 1008, subdivision (b) provides, in pertinent part, that [a] party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law . . . . The party must identify the new or different facts, circumstances, or law on which it relies. Whether the new or different facts are sufficient to satisfy the requirements of [Code of Civil Procedure] section 1008, subdivision (b), is a question confided to the sound discretion of the trial court, with the exercise of which we will not interfere absent an obvious showing of abuse. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 971.)

Here, the trial court denied the motion for reconsideration. We therefore consider whether the trial court abused its discretion in concluding Nguyens new facts were insufficient to justify renewal, and whether the court erred in concluding Rusheen was distinguishable. We again repeat the trial courts initial ruling: the gravamen of this action is the noncommunicative act of obtaining the documents.

2. No New Facts

In his renewed motion, Nguyen relied on the allegedly new facts that plaintiffs had admitted in deposition that they learned Nguyen had obtained their files because he published them in the dissolution action and that plaintiffs had no knowledge that he otherwise looked at the files. These purportedly new facts have no effect on the trial courts ruling regarding the gravamen of the action.

Preliminarily, we note that the facts alleged are not new. In Nguyens initial anti-SLAPP motion, Nguyen argued that [t]here is no contention or proof that Defendant Nguyen used the documents for any . . . purpose [other than his dissolution action], or even read all the documents. In his reply in support of the anti-SLAPP motion, Nguyen stated, Plaintiffs do not contend that defendant read any sensitive documents, only that they were obtained. He further argued that plaintiffs did not know of defendants alleged actions until he submitted the few scant documents to the court. In other words, Nguyens initial anti-SLAPP motion was based on the facts that plaintiffs did not know that he had obtained the documents until he used them in the dissolution action and that plaintiffs did not contend that he had read the documents. That Nguyen now had further evidence of these facts does not render them new facts sufficient to justify a subsequent motion, especially when there is no indication in the record that Nguyens original motion was denied based on any dispute regarding these facts.

In any event, the purportedly new facts were irrelevant to the trial courts initial ruling. The trial court denied the anti-SLAPP motion on the basis that, even though Nguyen had used the documents in litigation, the gravamen of plaintiffs action was not the use of the documents, but the act of obtaining them by forgery. Nguyen argues that the publication of the documents in the dissolution action must be the gravamen of the complaint because but for the publication of the documents, the [plaintiffs] would not have known about the procurement of the immigration files, and therefore could not have filed the present action. Nguyen confuses the means of discovery of the tort with the tort itself. Just because plaintiffs may have learned of Nguyens invasion of their privacy by means of a privileged communication does not mean that their action is based on that communication. Plaintiffs deposition testimony regarding their discovery of Nguyens act of obtaining the documents, and their admission that they have no knowledge that he read the documents, are simply irrelevant to the trial courts conclusion regarding the gravamen of the action.

3. No New Law

The trial court denied Nguyens initial anti-SLAPP motion on the ground that Nguyen had failed to establish that the conduct challenged in the complaint arose out of Nguyens exercise of his right of petition. The trial court concluded that the gravamen of the action was Nguyens obtaining the documents by forgery, rather than his subsequent use of the documents in litigation.

In his renewed motion, Nguyen relied on Rusheen as purportedly new relevant law. Rusheen considered whether the absolute litigation privilege immunized the non‑communicative act of levying on a judgment debtors property. The appellate courts addressing the issue had agreed that the communicative act of applying for a writ of execution was immunized, but had disagreed over whether the subsequent act of carrying out the writ was also subject to the privilege. (Rusheen, supra, 37 Cal.4th 1048, 1052.) In Rusheen, the Supreme Court concluded that, when the judgment debtor fails to identify any allegedly wrongful conduct except the privileged communicative act by which the writ of execution was obtained, the gravamen of the action is the communicative act, and the subsequent non-communicative act of enforcing the writ is similarly immunized. (Id. at p. 1062.) As the court noted, the litigation privilege would be completely thwarted if it immunized the act of obtaining a judgment, but not the act of enforcing it. (Ibid.) The court therefore extended the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act. (Id. at p. 1063.)

In the course of setting forth its holding, the Supreme Court stated, [W]here the cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act. (Rusheen, supra, 37 Cal.4th at p. 1052.) In his renewed motion, Nguyen took the position that this language mandated a grant of his anti-SLAPP motion. He argued that the plaintiffs complaint was based on his communicative act of publishing the CIS documents in the dissolution action, so the privilege must extend to the necessarily related noncommunicative act of obtaining the documents. Nguyen is again mistaken, both as to the scope of the trial courts initial ruling, and the Rusheen case.

In ruling on Nguyens initial anti-SLAPP motion, the trial court concluded that the gravamen of plaintiffs action was not the publication of the CIS documents in the dissolution action, but defendants act of obtaining the documents by forgery. Thus, the Supreme Courts conclusion in Rusheen that the privilege extends to related noncommunicative acts simply does not apply.^[8]

Moreover, the Rusheen case was concerned with a noncommunicative act that necessarily followed from the allegedly wrongful, but immunized, act. Nguyens argument is based on the reverse a communicative act that followed from an allegedly wrongful noncommunicative act. Rusheen left standing, and cited with approval, case law establishing that prelitigation noncommunicative acts are not immunized, even though immunized communicative acts might follow. (Rusheen, supra, 37 Cal.4th at p. 1058.) In other words, the Rusheen case said nothing to undermine the trial courts initial conclusion that Nguyens testimonial ends do not render immunized his allegedly tortious means.

DISPOSITION

The trial courts order denying Nguyens renewed anti-SLAPP motion is affirmed. Plaintiffs shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Nguyen admits obtaining the files. He denies committing forgery to obtain them, although when his counsel was asked if he knew how Nguyen obtained the files, counsel answered, All I can say is that he got them, that he got the files. Plaintiffs evidence of forgery is fairly substantial, including an experts opinion that the fingerprint in the notarys log for Wangs signature in fact belongs to Nguyen.

^[2] Nguyen concedes that he submitted documents from Cuis CIS file in his dissolution action. He asserts that he did not submit any documents from Wangs file, and that the sole document of Huangs he submitted was a biographic information sheet.

^[3] Plaintiffs were Huang, Wang and Cui. Cui has since been dismissed.

^[4] It is apparent that while plaintiffs intentional infliction of emotional distress cause of action alleges the publication of the documents, the invasion of privacy cause of action does not. Nguyen argues, however, that there can be no actionable invasion of privacy without publication. He therefore assumes his publication of the documents in the dissolution action is, in fact, an implied part of the allegations in the invasion of privacy cause of action. He then uses this presumed allegation to argue that the invasion of privacy cause of action is based on his publication of the documents. An anti-SLAPP motion is directed to the actual allegations of the complaint, not the allegations the defendant would rather address. If Nguyen believed the complaint did not sufficiently allege all elements necessary for an invasion of privacy cause of action, that challenge should have been raised by demurrer.

^[5] At oral argument on this appeal, Nguyen relied on Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 286-287, for its discussion of the plaintiffs burden. But this case was concerned with a different statute altogether: the provision enabling a plaintiff to defeat an anti-SLAPP motion in a SLAPPback litigation. (Code Civ. Proc.,  428.18, subd. (h).) It has no relevance to the instant action.

^[6] We express no opinion on whether the privilege applies to Nguyens use of the CIS documents in his dissolution action, nor whether the limitation on the privilege for certain publications in marital dissolution actions applies. (Civ. Code,  47, subd. (b)(1).)

^[7] The record on appeal does not contain plaintiffs opposition to the motion, nor the reporters transcript of the hearing on the motion

^[8]Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, raised by Nguyen at oral argument, does not change our conclusion. In Gallanis-Politis, the anti‑SLAPP statute applied because the gravamen of the plaintiffs cause of action was an investigation conducted, and report prepared, in the course of responding to discovery in plaintiffs lawsuit. Such conduct is clearly an act in furtherance of the defendants right of petition. (Id., at pp. 610-612.) The appellate court concluded the entire cause of action was subject to the anti-SLAPP statute even though plaintiff had also alleged some other, unprotected activity. This is because, when a cause of action alleges both protected and unprotected conduct, the anti-SLAPP statute applies unless the protected conduct is merely incidental to the unprotected conduct. (Id., at pp. 613-615.) Again, we begin with the premise that, as found by the trial court, the gravamen of the complaint was Nguyens act of obtaining the documents by forgery. Any protected use of the documents (which was not even alleged in the invasion of privacy cause of action) was merely incidental to the forgery, and the anti-SLAPP statute does not apply.