Klinger v. Alderette
Filed 8/6/13 Klinger v. Alderette CA2/2
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
TWO
BETSY KLINGER, as successor in
interest to Barney Klinger,
Plaintiff and Appellant,
v.
CRAIG ALDERETE, as successor in
interest to Shirley Alderete, et al.,
Defendants and Respondents.
B245403
(Los Angeles
County
Super. Ct.
No. BC487318)
APPEAL from
a judgment of the Superior Court
of
County.
Ruth Ann Kwan, Judge.
Affirmed.
Hillel
Chodos for Plaintiff and Appellant.
Knapp,
Petersen & Clarke, André E. Jardini, Maria A. Grover, Hilary M. Goldberg
for Defendants and Respondents.
___________________________________________________
>
Appellant contends that the trial court improperly held a
malicious prosecution action to be a
Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)
to establish a reasonable probability of prevailing on the merits. We further find that the trial court did not
abuse its discretion in awarding respondents attorney fees and costs.
BACKGROUND
The Underlying
Lawsuit
On April 6, 2012, Shirley Alderete filed
a lawsuit against Barney Klinger and approximately 40 other defendants stating
claims for asbestos-related injuries (the underlying lawsuit).
various construction projects at which he was exposed to asbestos. One of these projects was at the Schlitz
Brewery in Los Angeles, where
Alderete’s husband worked for Klinger as a pipefitter for approximately one
month in 1971. Alderete claimed that she
became exposed to asbestos through contact with her husband, particularly when
she would shake out and launder his dusty, asbestos-laden work clothes after he
returned home from work. Alderete’s
husband died of mesothelioma in 2004. In
her complaint filed in 2012, Alderete stated that she suffered “from a condition
related to exposure to asbestos and asbestos-containing products,†and she
sought damages for injuries suffered because of this condition.
The
complaint in the underlying lawsuit was served on Klinger on April 24, 2012. On May
9, 2012, Klinger’s attorney, Hillel Chodos, noticed Alderete’s
deposition and requested documents from her.
Alderete, through her attorneys, objected, asserting among other things
that the discovery requests violated the trial court’s discovery order.
On May 21, 2012, Klinger answered the
complaint. The next day, Alderete filed
a request for dismissal of Klinger, without prejudice, and the dismissal of
Klinger was entered by the clerk.
Alderete’s attorneys, however, forgot to serve Klinger’s attorney with a
copy of the request for dismissal, and Klinger’s attorney did not learn of the
dismissal until June 13, 2012. In the meantime, on behalf of Klinger, he
filed a motion to compel the deposition of Alderete and for production of
documents.
After
Klinger’s attorney learned of the dismissal, he sent a letter to Alderete’s
attorneys asserting that the action was brought without probable cause and with
sufficient malice to support a claim for malicious prosecution. He demanded that fees and costs incurred by
Klinger in the amount of $7,435 be paid in return for a waiver of any claim for
malicious prosecution. Alderete and her
attorneys responded by stating that there was good cause for the filing of the
action, and they refused to pay the amount demanded.
The Instant Matter
On June 27, 2012, two weeks after
learning of the dismissal, Klinger sued Alderete as well as her attorneys, Alan
Brayton, David Donadio and John Goldstein, and their firm Brayton Purcel, LLP
(BP) for malicious prosecution. (Alderete,
Brayton, Donadio, Goldstein, and BP are collectively referred to herein as
respondents.) Klinger alleged that
respondents knew the allegations in the underlying lawsuit against Klinger were
false, and that they had no evidence and could not obtain evidence to support
their claim. Further, according to
Klinger’s allegations, respondents’ claim was not legally tenable. Klinger alleged that he, through his
attorney, sought information supporting respondents’ claim, both through formal
and informal means, but respondents did not provide any such information. Klinger prayed for damages in excess of
$25,000 for costs incurred in defense of the underlying lawsuit and emotional
and mental distress.
In August
2012, respondents filed a special (anti-SLAPP) motion to strike Klinger’s
complaint pursuant to section 425.16.
Alderete’s attorney Donadio submitted a declaration in connection with
the motion. Donadio stated that, in
seeking to identify defendants for Alderete’s action, BP obtained a deposition
transcript containing testimony given by Alderete’s husband in a prior lawsuit
initiated before he died of mesothelioma in 2004. Attached to Donadio’s declaration were copies
of that transcript wherein Alderete’s husband testified that he worked for a
company called “Allied A.C.†that was owned by Klinger. Donadio stated that BP investigated Klinger’s
contractor licenses and found no entity named “Allied A.C.,†and that during
the time Mr. Alderete worked for him, only Klinger’s sole proprietor general
contractor license was active.
Explaining
the reasons why BP decided to dismiss Klinger from the underlying lawsuit,
Donadio declared that shortly before Alderete dismissed Klinger, Donadio
learned that Alderete was suffering from lung cancer and not mesothelioma. Donadio also stated that the decision in
Cal.App.4th 15 (Campbell),
issued on May 21, 2012,
impacted “asbestos take-home exposure†cases.
The trial
court granted respondents’ anti-SLAPP motion on October 25, 2012.
In its statement of decision, the court noted that Klinger’s opposition
to the motion was not timely filed or served.
The court held that the malicious prosecution complaint arose from
protected activity, and that Klinger failed to meet his burden of prevailing on
the claim. The court further found that
Klinger did not show that respondents commenced or maintained the underlying
lawsuit without probable cause, that they initiated the lawsuit with malice, or
that the underlying lawsuit terminated in Klinger’s favor.
Following the
trial court’s ruling, respondents moved for attorney fees and costs incurred in
connection with the anti-SLAPP motion, seeking a total amount of $30,889. On January
10, 2013, the trial court found that the amount requested was
reasonable and granted the motion.
Klinger
appeals from the order granting the anti-SLAPP motion, arguing that the motion
should have been denied. He further
asserts that, even if the ruling on the anti-SLAPP motion is upheld, the order
awarding respondents fees and costs must be reversed, because the fees
requested were excessive and unreasonable.
We review
the order granting the anti-SLAPP motion de novo. (Flatley
v. Mauro (2006) 39 Cal.4th 299, 325.)
The order awarding respondents fees and costs is reviewed for an abuse
of discretion. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315,
1322.)
I. The Anti-SLAPP Motion Was Properly Granted
The
anti-SLAPP statute allows the courts to expeditiously dismiss “‘a meritless
suit filed primarily to chill the defendant’s exercise of
Strong-Tie, Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21;
139 Cal.App.4th 659, 670; § 425.16, subd. (a).)
There are two components to a motion to strike brought under section
425.16. First, the defendant must show
that the challenged cause of action is one arising from protected activity.
Inc. (2002) 29 Cal.4th 53, 67.)
Second, if the lawsuit affects constitutional rights, the plaintiff must
establish a reasonable probability that he or she will prevail on the merits of
the claims. (§ 425.16, subd. (b)(1); City
of Cotati v. Cashman (2002)
29 Cal.4th 69, 76; Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
Klinger
concedes that respondents met their burden on the first prong of the anti-SLAPP
analysis. His cause of action for
malicious prosecution arises from protected activity—Alderete’s filing of the
complaint in the underlying lawsuit.
(See Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 741; Sycamore
Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1398 (
Klinger
argues, however, that he sufficiently established a probability of prevailing
on his malicious prosecution claim and therefore he satisfied the second step
of the anti-SLAPP analysis. To establish
a probability of prevailing, a plaintiff must show that the complaint is
legally sufficient and is supported by prima facie evidence sufficient to
sustain a favorable judgment if the evidence is credited. (Navellier
v. Sletten (2002) 29 Cal.4th 82, 93; Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at
p. 738; Major v. Silna (2005)
134 Cal.App.4th 1485, 1498.) To avoid
being stricken as a SLAPP, the plaintiff must establish that his or her claim
has at least “minimal merit.†(
defendant’s evidence in support of the motion defeats the plaintiff’s attempt
to establish evidentiary support for the claim, as a matter of law. (Wilson
v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
“To prevail
on a malicious prosecution claim, the plaintiff must show that the prior action
(1) was commenced by or at the direction of the defendant and was pursued to a
legal termination favorable to the plaintiff; (2) was brought without probable
cause; and (3) was initiated with malice.â€
(Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 292.)
The trial court here found that Klinger failed to provide sufficient
evidence to support any one of these three elements.
Because we
find that the underlying lawsuit was not brought without probable cause, we
need not determine whether the other elements of Klinger’s claim were
established. Probable cause exists where
the plaintiff relies upon facts which he or she has reasonable cause to believe
are true, and when the legal theory underlying the cause of action is tenable
under the known facts. (
of the underlying lawsuit was legally tenable is a question of law. (Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878.) If “any reasonable attorney†would have
considered the claim tenable under the circumstances, then no claim for
malicious prosecution will lie. (
157 Cal.App.4th at p. 1402.) “In
determining whether the prior action was legally tenable, i.e., whether the
action was supported by probable cause, the court is to construe the
allegations of the underlying complaint liberally, in a light most favorable to
the malicious prosecution defendant.†(
Klinger contends
that three published opinions rendered the underlying lawsuit legally
untenable. The first of these is
335, 342, in which our Supreme Court held, in the context of asbestos
litigation, that a product manufacturer is not strictly liable or liable for
negligence “for harm caused by another manufacturer’s product unless the
defendant’s own product contributed substantially to the harm, or the defendant
participated substantially in creating a harmful combined use of the
products.†Klinger was not alleged to be
a product manufacturer, but rather a general contractor who employed Mr.
Alderete as a pipefitter.
any, application to a general contractor employer.
The second
and third cases relied on by Klinger, Campbell,
Cal.App.4th 1222, were both decided after Alderete initiated the underlying
lawsuit. As acknowledged by Donadio in
his declaration, Campbell limits the
scope of certain defendants’ liability in “asbestos take-home exposure†cases
such as the underlying lawsuit, in which the plaintiff claimed she was exposed
to asbestos by laundering her husband’s clothing. (See
Campbell, at p. 34.) Although the defendant in
general contractor employer, at least some of the reasoning expressed in
potentially apply to the underlying lawsuit.
But that does not change the fact that Campbell was decided on May 21, 2012, nearly a month after the
underlying lawsuit was filed. And
Alderete dismissed her lawsuit against Klinger the day after
until June 13, 2012, well after Klinger was dismissed, and in any case was
decided largely on the basis that the plaintiffs failed to submit sufficient
evidence in opposing a motion for summary judgment. Thus, none of the three cases relied on by
Klinger rendered the underlying lawsuit legally untenable at the time it was
filed, and Alderete did not continue to prosecute the action against Klinger
after the one case that potentially affected the legal tenability (
We further
find that Alderete (and her lawyers) had reasonable cause to believe that the
allegations against Klinger were true.
Evidence supported the conclusion that Alderete’s husband contracted
mesothelioma through his work as a pipefitter.
Her husband’s testimony from 2004 supported the conclusion that he
worked for Klinger (or his company) for a time as a pipefitter. Donadio’s declaration established a
reasonable basis to conclude that Alderete worked directly for Klinger, since
only Klinger’s sole proprietor’s license was active during the time period at
issue. At the time the underlying
lawsuit was filed, Alderete was thought to have mesothelioma. It was reasonable to deduce that Alderete was
exposed to asbestos because she laundered her husband’s clothing on days that
he worked for Klinger, among other employers.
Employers have been held liable for asbestos exposure. (Kinsman
v. Unocal Corp. (2005) 37 Cal.4th 659, 682; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953,
962.) Given these facts and the legal
authority at the time, we find that Klinger did not establish a probability of
prevailing on his malicious prosecution claim.
II. We Find No Abuse of Discretion in the Fees
Award
In
reviewing an award of attorney fees and costs on an anti-SLAPP motion, we
examine whether the trial court abused its discretion, i.e., whether it
exceeded the bounds of reason. (
Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.) “[A]n experienced trial judge is in a much
better position than an appellate court to assess the value of the legal
services rendered in his or her court, and the amount of a fee awarded by such
a judge will therefore not be set aside on appeal absent a showing that it is
manifestly excessive in the circumstances.â€
(Children’s Hospital & Medical
Center v. Bontá (2002) 97 Cal.App.4th 740, 782.)
After
receiving briefing and hearing oral argument, the trial court issued a detailed
decision awarding attorney fees and costs incurred by respondents. As noted in that decision, respondents’
attorneys submitted declarations and time records demonstrating that their work
on the anti-SLAPP motion required a significant review of the underlying
file. The work expended on the matter
and the fees charged do not appear to be manifestly excessive, especially when
considering that much of the work was done at a specially discounted rate. Further, the record supports the trial
court’s conclusion that fees charged by respondents’ initial counsel, Mark
Abelson, were recoverable.
We also find
that the trial court did not abuse its discretion by awarding fees requested
for work done by two of the attorney respondents, Donadio and Goldstein. Donadio’s and Goldstein’s declarations stated
that they performed various tasks in assisting with the anti-SLAPP motion,
while they continued to represent Alderete in the underlying lawsuit. In Ramona
Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524-525, it was
held that an attorney who was a defendant could recover attorney fees for work performed
that benefited her as well as her codefendants.
Similarly, in Healdsburg Citizens
for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988,
997, the court found that, even though a party-attorney herself benefited from
work she performed, the work also benefited her copetitioners, and thus an
award of fees was proper. Since the work
performed on this matter by Donadio and Goldstein benefited Alderete, the trial
court did not err by finding the fees recoverable.
DISPOSITION
The order
granting the anti-SLAPP motion and the related order awarding fees and costs
are affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
FERNS, J.*
_________________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California
Constitution.
name="_ftn1" title="">[1] All
further references to statutes are to the Code of Civil Procedure unless
otherwise stated.
this appeal was pending, both Klinger and Alderete died. Pursuant to orders of this Court, successors
in interest have been substituted in their places.
