Mathur v. Allegrino

Filed 6/23/06 Mathur v. Allegrino CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.

Mahesh B. Mathur, Gulfstream Aerospace Corporation (Gulfstream) and General Dynamics Corporation (General Dynamics) appeal from an order denying their special motion to strike a cross-complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. (All undesignated statutory references are to the Code of Civil Procedure.) We conclude that the anti-SLAPP statute is inapplicable because the cross-complaint does not arise from acts in furtherance of the constitutional right of petition or free speech in connection with a public issue. (§ 425.16, subds. (b)(1), (e).) Accordingly, we affirm the order denying the anti-SLAPP motion.

FACTUAL AND PROCEDURAL BACKGROUND

Mathur, a Georgia resident and employee of Gulfstream, hired attorney Anthony J. Allegrino II to obtain an immigration visa for his daughter's fiancée for the fixed price of $830, with any other legal fees to be separately negotiated. Mathur provided Allegrino his credit card number for the purpose of charging the legal fees set forth in their written agreement. Thereafter, Allegrino charged at total of $13,014 on Mathur's credit card. Although Mathur left numerous telephone messages for Allegrino regarding the charges, Allegrino never returned his calls. Thomas Ramee, Deputy General Counsel of Gulfstream, offered his pro bono services to Mathur to get the charges reversed. In May 2002, Ramee wrote a letter to Mathur's credit issuer, First USA Bank, N.A., explaining why the charges should not be honored.

In January 2003, Mathur commenced a fee dispute arbitration with the San Diego County Bar Association under Business and Professions Code section 6200 et seq. The arbitrators found that Allegrino charged Mathur $13,149 without prior authorization and awarded him $15,359.51. In April 2003, Allegrino sued Mathur, Ramee, Gulfstream and General Dynamics, Gulfstream's parent corporation, alleging damages based on the untrue statements in Ramee's letter to First USA Bank (Law Offices of Anthony J. Allegrino II v. Mahesh B. Mathur et al. (Super. Ct. San Diego County, 2003, No. GIC809043).) The trial court dismissed Ramee from this action based on lack of personal jurisdiction, granted the anti-SLAPP motion filed by the remaining defendants and entered judgment against Allegrino. Allegrino appealed the judgment, but the appeal was dismissed because he failed to timely file an opening brief.

In October 2003, the California State Bar filed a notice of disciplinary charges against Allegrino based, in part, on his actions toward Mathur. In November 2004, a State Bar Court judge recommended a two-year suspension from the practice of law, finding Allegrino was culpable on the allegations against him contained in the notice and two other pending matters. In September 2005, the California Supreme Court affirmed Allegrino's suspension. In the interim, Mathur filed this action against Allegrino for breach of contract, legal malpractice, fraud, negligent misrepresentation and unfair business practices and to enforce the arbitration fee award.

Allegrino cross-complained against Mathur, Gulfstream and General Dynamics (collectively the cross-defendants) alleging causes of action for intentional interference with contract, interference with prospective business advantage and negligence. The cross-defendants moved to strike the cross-complaint under section 425.16; however, the trial court deferred ruling on the motion to strike and gave Allegrino leave to amend his cross-complaint because he failed to allege how and when the cross-defendants interfered and who committed the acts.

Allegrino filed a first amended cross-complaint alleging that in May 2002, Mathur and Ramee attempted to induce Allegrino to refund Mathur's money by threatening him with criminal charges and a civil action during a telephone call. Mathur and Ramee also allegedly threatened to interfere with an employment contract Allegrino had with two foreign companies, Yukos Oil Corporation and Company Rigma. Thereafter, Mathur and Ramee allegedly contacted these foreign companies for the purpose of negatively impacting his contractual relationship and he lost his October 2001 contract with these companies as a result of this contact.

The trial court denied the cross-defendants' motion to strike the amended cross-complaint under section 425.16, concluding that the anti-SLAPP statute did not apply. The cross-defendants appeal from this order.

DISCUSSION

I. Burden of Proof and Standard of Review

In ruling on an anti-SLAPP motion the trial court engages in a two-step process, first deciding whether the moving defendant met its burden of demonstrating that the act underlying the plaintiff's or cross-complainant's cause of action fits one of the categories set forth in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The defendant, however, does not need to establish that its actions are constitutionally protected under the First Amendment as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon).) If the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a "probability" of prevailing on the claim. (Equilon, supra, 29 Cal.4th at p. 67.) We review de novo the trial court's rulings on an anti-SLAPP motion. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)

II. Analysis

As a threshold matter, we do not address the cross-defendants' argument that the amended cross-complaint fails to state viable claims because this is not an appropriate inquiry on an anti-SLAPP motion. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [focus of the motion is not on the form of the cause of action].) Rather, we examine whether the cross-defendants met their burden of proving that the cross-complaint "arises from" protected activity by demonstrating that the act underlying Allegrino's claims fits one of the categories set forth in section 425.16, subdivision (e). (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)

Here, the first amended cross-complaint alleges that the cross-defendants (1) interfered with an employment contract Allegrino had with two foreign companies, causing him to lose his contract and (2) threatened him with criminal charges and a civil action. The principal thrust or gravaman of the cross-complaint is that Allegrino suffered damages because the cross-defendants contacted his foreign employers and accused him of illegal conduct, causing him to lose his employment contract. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 ["collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute"].) The alleged act underlying Allegrino's causes of action – contacting Allegrino's foreign employers and accusing him of illegal conduct – was not made before or in connection with a judicial or other type of official proceeding and is not protected by the anti-SLAPP statute. (§ 425.16, subd. (e)(1) & (2).)

Although protected petitioning activity includes the filing of litigation (Navellier v. Sletten, supra, 29 Cal.4th. at p. 90), the allegation that the cross-defendants threatened legal action is merely incidental to the unprotected conduct of contacting Allegrino's foreign employers. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) Allegrino's damages are based on the alleged communication with his foreign employers and not the threats to commence legal action. As such, the allegation that the cross-defendants threatened Allegrino with legal action is insufficient to bring the claims within the ambit of section 425.16, subdivision (e)(1) or (2).

The cross-defendants also contend that Allegrino's causes of action arise from a statement made in connection with an issue of public interest within the meaning of section 425.16, subdivision (e)(4), because his underlying conduct involved an internet scam of interest to a large segment of the population. We reject this contention because the cross-defendants have not shown that the statements at issue concerned conduct that could directly affect a large number of people beyond the direct participants or involved a topic of widespread, public interest. (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.)

To determine whether the conduct involved a matter of public interest, we must examine the nature of the speech in terms of specifics, not mere generalities, or else "nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute." (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601.) While internet scams generally might affect large numbers of people and implicate a public interest, the challenged speech involved Allegrino's alleged transgressions toward Mathur, not internet scams in general, and was not a matter of widespread public interest. The cases cited by the cross-defendants are inapposite. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 472-473, 479 [defamatory newsletter circulated to members of a large homeowners association of public interest because it concerned how the association would be governed]; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 236-240 [defamatory magazine article accusing a political consultant of domestic violence was of public interest because individual was a public figure and had made the prevention of domestic violence a cornerstone in his advertising campaigns for politicians known around the world]; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 651, disapproved on other grounds in Equilon, supra, 29 Cal.4th 53 [religious institution was an entity of public interest because of extensive media coverage, membership and assets].)

Because Allegrino's cross-claims do not "arise from" the cross-defendants' constitutionally protected petitioning activity or right to free speech in connection with a public issue, they are not subject to the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) The mere fact that an action was filed after some protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78; Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) In view of our conclusion that Allegrino's causes of action did not arise from protected activity, we need not address the cross-defendants' contention that their communications were privileged as a matter of law because this argument bears only on the issue of whether Allegrino can establish a probability of prevailing on the merits of his claims, an issue we need not reach. The merits of Allegrino's allegations will be determined in the course of further proceedings.

DISPOSITION

The order denying the motion to strike is affirmed. Allegrino is awarded costs on appeal.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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