WITTE v. KAUFMAN
Filed 8/1/06
CERTIFIED FOR PARTIAL PUBLICATION*
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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| THOMAS WITTE, Plaintiff and Appellant, v. JAMES KAUFMAN et al., Defendants and Respondents. | C049472
(Super. Ct. No. 04AS03863)
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APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Reversed in part and affirmed in part.
Thomas M. Witte, in pro. per., for Plaintiff and Appellant.
Knox, Lemmon and Anapolsky, Thomas S. Knox, and Glen C. Hansen for Defendants and Respondents Knox, Lemmon & Anapolsky.
John E. Stefanki; and James J. Kaufman for Defendant and Respondent James Kaufman.
Plaintiff appeals from several orders of the trial court granting defendants' special motions to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16; further undesignated section references are to the Code of Civil Procedure) and awarding defendants attorney fees. We conclude the court properly granted the anti-SLAPP motions but erred in the award of attorney fees. We reverse in part and remand for reconsideration of the motions for attorney fees.
Facts and Proceedings
Marven Stroh hired the law firm of Knox, Lemmon & Anapolsky (KLA) to represent him in a lawsuit against his brother, Douglas Stroh, for dissolution of their business partnership. On August 31, 2001, KLA filed a complaint on behalf of Marven Stroh against Douglas Stroh in Sacramento County Superior Court, case No. 01AS05353 (Stroh v. Stroh). Douglas Stroh hired attorney James Kaufman to represent him in the action.
In April 2003, KLA withdrew as attorney of record for Marven Stroh due to nonpayment of fees. On April 18, 2003, KLA filed suit against Marven Stroh in Sacramento County Superior Court, case No. 03AS02197 (KLA v. Stroh), seeking unpaid legal fees of $46,849.08. Marven Stroh hired plaintiff Thomas Witte to represent him in both KLA v. Stroh and Stroh v. Stroh. On June 2, 2003, plaintiff filed an answer and cross-complaint on behalf of Marven Stroh in KLA v. Stroh. On June 4, 2003, KLA obtained a prejudgment writ of attachment on several assets of the Stroh brothers partnership, including the Cozy Villa Mobile Home Park (Cozy Villa).
Trial in Stroh v. Stroh commenced on October 7, 2003. On February 4, 2004, Judge Steven Rodda issued a tentative decision directing that the partnership assets be sold and the proceeds divided between the Stroh brothers. James Sullivan of Sullivan Group Commercial Real Estate was assigned to handle the sale of Cozy Villa. An interlocutory judgment to this effect was entered on March 30, 2004.
On May 18, 2004, the Stroh brothers partnership entered into an agreement to sell Cozy Villa to Frans Roodenburg. Escrow for the sale was scheduled to close on June 16, 2004.
On June 2, 2004, KLA v. Stroh was arbitrated before Robert Biegler. On June 8, 2004, Biegler issued a decision awarding KLA $39,527.47 on its complaint and awarding Marven Stroh nothing on his cross-complaint. On June 10, 2004, plaintiff informed Marven Stroh of the arbitration award.
On June 11, 2004, KLA and plaintiff signed an agreement providing for the release of KLA's lien on Cozy Villa and the deposit of $51,846.14 of the proceeds from the sale of Cozy Villa in a trust account on behalf of KLA, plaintiff and Marven Stroh to be retained until KLA v. Stroh was resolved.
Also on June 11, Marven Stroh informed plaintiff he wanted to accept the arbitration award and directed him to contact KLA and Sullivan to facilitate settlement of the matter in order for the sale of Cozy Villa to close as scheduled. Plaintiff refused to comply, explaining that he believed he could negotiate a reduction of the arbitration award. Stroh insisted that plaintiff settle the matter for the amount of the award. When plaintiff again refused, Stroh informed him he was fired.
Later that day, Marven Stroh faxed plaintiff a note offering to pay him $15,000 for his services on condition that he obtain KLA's agreement to the arbitration award. The note also complained about the quality of plaintiff's services and threatened that, if plaintiff did not accept the $15,000, Stroh would obtain another attorney to litigate the matter. In closing, Stroh stated: â€
