Rhee v. Lim

Filed 11/14/08 Rhee v. Lim CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Reginald A. Dunn, Judge. Affirmed.

Law Offices of James A. Kim and James A. Kim for Defendant and Appellant.

Law Offices of Kil & Sinkov and Michael Sinkov for Plaintiff and Respondent.

__________________________________

Defendant and appellant Robert Lim appeals from an order denying his motion to strike the complaint filed by plaintiff and respondent Chase Rhee pursuant Code of Civil Procedure section 425.16.^[1] Lim contends: 1) all of the statements alleged in the complaint were privileged prelitigation demands for an accounting; and 2) the lawsuit seeks a prior restraint on Lims communications with news reporters. We conclude that Lims statements did not constitute protected prelitigation communication and Lims contentions concerning prior restraints are not properly before us in connection with his motion to strike the complaint pursuant to section 425.16. Therefore, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On December 10, 2007, Rhee filed a complaint against Lim for defamation and harassment. He sought temporary and permanent injunctions, as well as monetary damages. The complaint alleged the following: Lim and Rhee were business partners from 1982 through 1996. For several years afterward, Lim complained to Rhee that he had not received his share of tax refunds and net proceeds, while Rhee maintained that he had. Rhee is a member of the board of directors of Mirae Bank. On June 30, 2002, Lim sent a letter to Mirae Bank stating that he had not received any part of his share of proceeds from a 1989 property disposition. On January 29, 2004, Lim wrote to Rhee that Rhee had cheated him out of his share of the proceeds, which amounted to $110,000. On October 8, 2007, Lim attended the opening ceremony at Pacific States University, where Rhee teaches a class. On October 9, 2007, Lim threatened to repeat his charges against Rhee to Rhees fellow faculty members at the University. In October and November 2007, Lim contacted a reporter for the Korea Times several times and said Rhee had cheated him out of his share of proceeds from a 1989 property sale. The reporter contacted Rhee to ask his reaction to Lims charges. Rhee provided documentation to the reporter to refute the accusations. Lim has threatened to repeat his accusations to the board of directors of Mirae Bank and continues to contact reporters. Rhee was hospitalized for two weeks as a result of a bleeding ulcer.

On January 23, 2008, Lim filed a motion to strike the complaint under section 425.16, subsections (e)(3) and (4), on the grounds that the statements to the local Korean press and a local community bank were statements in a public forum in connection with a matter of public interest, namely, that Rhee was untrustworthy. In addition, Lim argued that Rhee could not succeed on the merits, because the June 2002 letter was outside the one-year statute of limitations for defamation actions and the statements to the reporter were constitutionally protected opinion or privileged under Civil Code section 47, subdivision (c).

Rhee opposed the motion on the ground that the action arose out of a private conflict and did not involve a public issue. Lim filed a reply arguing that his statements directly to Rhee were protected prelitigation demands or communications made in contemplation of litigation, including the June 30, 2002 letter which Lim claimed was sent to Rhee at his place of business and not to the bank, the newspapers were public forums, and the allegations of wrongful business dealings were matters of public interest.

After a hearing on February 27, 2008, the trial court denied the motion to strike on the ground that Lim failed to demonstrate that his statements were of public interest under section 425.16. Lim filed a timely notice of appeal.

DISCUSSION

Statutory Scheme

Section 425.16 provides for a special motion to strike [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue . . . , unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) Courts have interpreted this language as creating a two-step process for determining whether an action is a SLAPP. [Citations.] (Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 918 (Rivero).) In the first step, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue,. . . . [Citation.] Section 425.16, subdivision (e), defines an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue as including (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. ( 425.16, subd. (e).) The Legislature has directed that the courts construe this language broadly. ( 425.16, subd. (a).) (Rivero, supra, at p. 918.)

If the defendant meets this burden of demonstrating that the complaint comes within the provisions of section 425.16, the burden then shifts to plaintiff to demonstrate a probability that he or she will prevail on the claim. [Citations.] (Rivero, supra, 105 Cal.App.4th at p. 919.)

Section 904.1 provides an immediate right of appeal [f]rom an order granting or denying a special motion to strike under Section 425.16. On appeal we review independently whether the complaint against the appellant arises from appellants exercise of a valid right to free speech and petition and if so, whether the respondent established a probability of prevailing on the complaint. [Citation.] [Citation.] (Rivero, supra, 105 Cal.App.4th at p. 919.)

Prelitigation Demands

Lim contends the trial court should have granted the motion to strike, because his statements were protected prelitigation demands for an accounting and funds owed to him. We disagree.

Section 425.16 is construed broadly, to protect the right of litigants to the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions. [Citations.] [Citations.] (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) Recently, the Supreme Court stated that [a] prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. [Citations.] (Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) (Rohde v. Wolf, supra, at p. 36.)

Lims statements concerned a financial transaction between Lim and Rhee that concluded in 1996 and Lims suspicions by January 2000 that he had not received a proper accounting or payments due to him. It is clear that the statute of limitations on any potential action related to Lims suspicions expired long before Lim had made many of his statements to Rhee and others, nor did Lim declare in support of the motion to strike that he contemplated litigation in good faith. The letter that Lim sent to the Mirae Bank and Lims communications with reporters do not appear to have any connection with litigation contemplated by Lim. The motion to strike based on section 425.16 was properly denied.

Prior Restraint

Lim contends that the injunctions requested in the complaint amount to a prior restraint on speech, which is properly subject to a motion to strike. However, Lim did not file a motion to strike the injunctions sought in the complaint on the ground that they were improper prior restraints on speech. He brought a special motion to strike the complaint pursuant to section 425.16. Lim cannot obtain review of an issue that he failed to raise in the trial court and would not have been entitled to immediately appeal if he had raised it.

DISPOSITION

The order is affirmed. Respondent Chase Rhee is awarded his costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.