Munchin Rosenman
Filed 11/7/13 Jackson v. Katten Munchin Rosenman CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
CARLOS JACKSON,
Plaintiff and Appellant,
v.
KATTEN MUCHIN ROSENMAN, LLP, et
al.,
Defendants and Respondents.
B241596
(Los Angeles
County
Super. Ct.
No. BC472822)
APPEAL from
a judgment of the Superior Court
of
County. James R.
Dunn, Judge. Affirmed.
Carlos Jackson, in pro per,
Appellant.
Katten Muchin Rosenman and Cory A.
Baskin for Respondents.
__________________________
Plaintiff
and appellant Carlos Jackson (Jackson) appeals from the April 13, 2012 order
granting a Code of Civil Procedure section 425.16 (§ 425.16) special
motion to strike his complaint as a Strategic Lawsuit Against Public
Participation (SLAPP) and awarding attorneys fees of $10,800 to defendants and
respondents Katten Muchin Rosenmann, LLP, Joel Weiner, Gail Migdal and Gloria
Franke (collectively the Katten defendants).
Jackson’s sole contention is
that it was error to deny him an opportunity to file an
FACTUAL AND
PROCEDURAL BACKGROUND
In 2000, Jackson
and Universal Pictures entered into a settlement agreement regarding Jackson’s
claims that Universal took his screenplay, “Agent 008.†Pursuant to that agreement, Universal bought
the screenplay and was prohibited from denying that it had done so; the
agreement also required binding arbitration of all disputes relating to
it. Over the next several years, Jackson
sued Universal multiple times and Universal successfully compelled arbitration
of each matter.
In October 2009, Jackson
filed case No. BC424529 against Universal, the gravamen of which was that
Universal breached the settlement agreement
on August 28, 2009, when its in-house counsel, Keith Blau, told a business
associate of Jackson’s about the settlement agreement, disparaged Jackson’s
writing career and accused Jackson of being a vexatious litigant. Universal, represented by the Katten
defendants, filed a motion to compel arbitration and dismiss the case. The motion was granted, and the litigation stayed
(the March 2010 order). On May 10, 2010, the trial court
denied Jackson’s request to “rescindâ€
the March 2010 order.
On May 10, 2010, Jackson
filed an action against attorney Blau (case No. BC437269), which alleged
the identical facts as alleged against Universal in case No. BC424529. The trial court denied without prejudice Blau’s
motion to have Jackson declared a vexatious litigant. The separate law suits against Universal and
Blau were deemed related. On December 3,
2010, Jackson filed a motion for leave to file a second amended complaint in the
related cases to add as defendants Universal’s and Blau’s attorneys, the Katten
defendants, and also add five new causes of action (intentional infliction of
emotional distress, fraud, defamation, civil conspiracy and intent to defraud).
The motion was heard on March 23, 2011. On that date, the trial court granted Blau’s
motion to compel arbitration of case No. BC437269 and denied Jackson’s
motion to file an amended complaint on the grounds that, having compelled
arbitration, it no longer had jurisdiction to grant the motion to file an
amended complaint (the March 2011 order). Jackson’s motion to reconsider was denied as
untimely and, alternatively, on the merits. Division Seven of this court dismissed Jackson’s
appeal from the March 2011 order compelling arbitration because it was not an
appealable order (case
No. B235827). (
207 Cal.App.4th 1115, 1121 [orders compelling arbitration are appealable
from the final judgment].)
On November 3, 2011, Jackson commenced
this action against the Katten defendants only.
Although the Clerk’s Transcript does not include a copy of the complaint,
we glean its contents from other documents in the appellate record.
distress; (2) fraud; (3) defamation; (4) slander; (5) civil conspiracy to
defraud; and (6) intent to defraud. Each
cause of action was based on written and oral statements made by the Katten
defendants in the course and scope of their representation of Universal and
Blau in the related cases. For example,
Jackson alleges that the Katten defendants called him a vexatious litigant in a
July 2010 case management statement and at a court hearing. Jackson also alleges that the Katten
defendants brought the motion to compel arbitration knowing it was meritless.
On January 3, 2012, the Katten
defendants filed a demurrer and a special motion to strike the complaint as a
SLAPP. On January 5, 2012, the trial
court found this case (No. BC472822) related to case Nos. BC424529 and
BC437269, and assigned the three related cases to Judge James R. Dunn. The demurrer and anti-SLAPP motion were
continued to April 13, 2012. Jackson did
not file any written opposition to the motions. The day before the April 13, 2012 hearing,
Jackson sought leave to file a first amended complaint “in response to . . .
[Universal’s, Blau’s and the Katten defendants’] unjustified motion to compel
arbitration granted on March 23, 2011 [in case No. BC437269] and
defendant’s demurrer and anti-SLAPP motion in response to plaintiff’s new complaint
[in this case].†According to the
motion, Jackson “concedes that the original complaint is deficient as pled, and
respectfully requests that he be granted leave to amend the original complaint
filed on November 3, 2011 due to inadvertence, mistake and excusable neglect
for incompetent legal advice.†The
amended complaint sought to add two more tort causes of action: negligent emotional distress and interference
with prospective business advantage.
Jackson argued, “The amendment addresses the actions of the [Katten
defendants] in pursuing a course of action that evidences a desire to deceive
this court and to defraud [Jackson] by suggesting that the settlement agreement
entered into [by Universal and Jackson] protects [Blau] and entitles him to
take advantage of the arbitration clause therein.â€
At the
hearing the next day, Jackson stated that he did not file any opposition to the
anti-SLAPP motion because he understood filing an amended complaint would cause
the demurer and anti-SLAPP motions to be taken off calendar. Apparently realizing his error, Jackson asked
for a continuance to obtain counsel and file opposition to the anti-SLAPP
motion. The trial court granted the Katten
defendants’ anti-SLAPP motion and denied Jackson’s motion to file an amended
complaint. The trial court found: “As all of the conduct complained of in the
complaint arises from defendants’ alleged activity in connection with
underlying litigation, the first prong of [the anti-SLAPP statute] is satisfied
and the burden shifts to [Jackson] to establish a probability of prevailing on
the merits. As no written opposition was
received, [Jackson] tacitly concedes that he cannot establish a probability of
prevailing on the merits; moreover, [the Katten defendants are] persuasive in
arguing that [Jackson] can’t establish a probability of prevailing because: (1) their alleged conduct was protected by the
litigation privilege [citation]; and (2) [Jackson’s] complaint fails to allege
facts sufficient to constitute a cause of action.†The trial court awarded the Katten defendants
attorney’s fees of $10,800.
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April 19, 2012. Jackson timely appealed.
DISCUSSION
SLAPP
and the Standard of Review
The anti-SLAPP statute provides
that a “cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.â€
(§ 425.16, subd. (b)(1).) Ruling
on an anti-SLAPP motion is a two-step process.
First, the trial court must determine whether the defendant has made a
prima facie showing that the challenged cause of action arises from protected
activity. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th
809, 822.) If, and only if, the
defendant makes that showing must the trial court proceed to the second step – determination
of whether the plaintiff has shown a probability of prevailing on the claim. (Ibid.) The appellate court reviews a ruling on an
anti-SLAPP motion de novo, using the same two step process. (Coretronic
Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1387 (
Jackson’s
Motion to File an Amended Complaint Was Properly Denied
Jackson does not argue that his
original complaint could survive an anti-SLAPP motion. His sole contention on appeal is that the
trial court erred in denying his request to file an amended complaint and take
the anti-SLAPP motion off calendar. We disagree.
A plaintiff does not have the right
amend its complaint after it has been
found a SLAPP. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073;
but see Nguyen-Lam v. Cao (2009) 171 Cal.App.4th
858, 862-866 [trial court properly allowed amendment to allow plaintiff to
plead actual malice].) Nor can the
plaintiff avoid a hearing on an anti-SLAPP motion by filing an amended
complaint before the hearing. (Hansen
v. Department of Corrections &Rehabilitation (2008) 171 Cal.App.4th
1537, 1547, citing Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1054.) The Simmons court explained the reason for the rule:
“In enacting the
anti-SLAPP statute, the Legislature set up a mechanism through which complaints
that arise from the exercise of free speech rights ‘can be evaluated at an
early stage of the litigation process’ and resolved expeditiously.
[Citation.] Section 425.16 is just one
of several California statutes that provide ‘a procedure for exposing and
dismissing certain causes of action lacking merit.’ [Citation.] [¶]
Allowing a SLAPP plaintiff leave to amend the complaint once the court
finds the prima facie showing has been met would completely undermine the
statute by providing the pleader a ready escape from section 425.16’s quick
dismissal remedy. Instead of having to
show a probability of success on the merits, the SLAPP plaintiff would be able
to go back to the drawing board with a second opportunity to disguise the
vexatious nature of the suit through more artful pleading. This would trigger a second round of
pleadings, a fresh motion to strike, and inevitably another request for leave
to amend. [¶] By the time the moving party would be able to
dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in
his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly
what could not be accomplished directly, i.e., depleting the defendant’s energy
and draining his or her resources. [Citation.] This would totally frustrate the Legislature’s
objective of providing a quick and inexpensive method of unmasking and
dismissing such suits. [Citation.]â€
(Simmons, supra,
92 Cal.App.4th at pp. 1073-1074.)
Under Hansen and
Jackson’s motion to file an amended complaint, brought the day before the
hearing on the anti-SLAPP motion. That the
torts Jackson sought to add arose from the same acts upon which the other
causes of action were based also supports the court’s ruling.
3.
Jackson’s
Complaint Was Properly Dismissed As a SLAPP
Although Jackson’s Opening and Reply
briefs focus on his thwarted attempt to file an amended complaint, and not on
the merits of the anti-SLAPP motion, we take a moment here to affirm the trial
court’s finding that the complaint was a SLAPP.
The complaint alleged six causes of action, all torts, each of which arose
from written or oral statements the Katten defendants made in the course of
their representation of Universal and/or Blau at judicial proceedings in the
related cases. With exceptions not
relevant here, statements made by attorneys in litigation are protected
activity under the anti-SLAPP statute. (
at p. 1388.) Thus, the trial court correctly found the first
prong of the anti-SLAPP statute met.
The trial court also properly found
the second prong met. This is because
the Katten defendants’ actions upon which each cause of action is based are
protected by the litigation privilege (Civ. Code, § 47, subd. (b)). In Action
Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232,
1241, our Supreme Court explained:
“The litigation
privilege . . . provides that a ‘publication or broadcast’ made as part
of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying
‘to all publications, irrespective of their maliciousness.’ [Citation.]
‘The usual formulation is that the 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 [has] some connection or logical relation to
the action.’ [Citation.] The privilege ‘is not limited to statements
made during a trial or other proceedings, but may extend to steps taken prior
thereto, or afterwards.’ [Citation.]â€
The privilege immunizes defendants from liability for all torts
except malicious prosecution. (
Angeles (2013) 212 Cal.App.4th 1283, 1293-1294.)
Here, because
each cause of action arises from written or oral statements made by the Katten
defendants in the course of their advocacy for Universal and Blau during judicial
proceedings, the litigation privilege bars any tort claims based on those
statements.
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4.
The
Trial Court Properly Awarded Attorney’s Fees
Jackson contends the trial court
erred in awarding the Katten defendants attorney’s fees. As we understand his argument, it is that
attorney’s fees were improper because the Katten defendants should not have
prevailed. As we have explained, the
trial court did not err in granting the Katten defendants’ anti-SLAPP
motion. As prevailing parties, the
Katten defendants were entitled to attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1)
[“[A] prevailing defendant on a special motion to strike shall be entitled to
recover his or her attorney’s fees and costs.â€].)
The April
13, 2012 order striking the complaint in case No. BC472822 as a SLAPP and
awarding attorney’s fees is affirmed. The
Katten defendants shall recover their costs on appeal.
RUBIN,
ACTING. P. J.
WE CONCUR:
FLIER,
J. GRIMES, J.
his Appellant’s Notice Designating Record on Appeal, Jackson designated the
complaint under the heading for administrative records. The Katten defendants filed a Respondents’
Notice Designating Record on Appeal, but did not designate the complaint. Appellant also sent the court a letter dated
June 6, 2013, together with attachments.
We have read and considered the letter and attached material.
Katten defendants’ demurrer was taken off calendar and their motion for
sanctions against Jackson and his former attorney was continued to May 9,
2012. That day, the Katten defendants
were awarded $19,200 in sanctions. (Code
Civ. Proc., § 128.7.) Jackson does
not appeal from that order.
