Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Ct. No. INC046308 John G. Evans, Judge.
Gotfredson & Associates and E. Jay Gotfredson for Defendants and Appellants.
Alderlaw PC, Michael Alder, Shari S. Daneshrad, Donn Christensen; Law Office of Dale S. Gribow and Stephen L. Cooper for Plaintiffs and Appellants.
OPINION
King J.
Plaintiffs and appellants Dale S. Gribow and Law Offices Dale S. Gribow commenced this action against defendants and appellants Don C. Burns, Glen S. Robinson, and Law Offices of Robinson Burns. Gribow, Burns, and Robinson are attorneys. In the controlling pleading, the third amended complaint (TAC), Gribow alleged, in essence, that Burns and Robinson left Gribow’s firm to form a competing law firm and solicited clients away from Gribow and to the new firm, thereby breaching various duties owed to Gribow. Gribow alleged five causes of action in the TAC labeled: (1) fraud and deceit; (2) intentional interference with contractual relationship; (3) breach of fiduciary duty; (4) declaratory relief; and (5) breach of implied covenant of good faith and fair dealing.
Dale S. Gribow is the sole shareholder of Law Offices Dale S. Gribow, a corporation. For ease of reference, we will use Gribow to refer to the individual, the corporation, or both, allowing the context to determine the meaning. We will refer to individual defendants Don C. Burns and Glen S. Robinson by their last names and defendant Law Offices of Robinson Burns as Robinson Burns; we may also refer at times to defendants collectively as defendants.
Defendants filed a special motion to strike the second, third, and fifth causes of action pursuant to Code of Civil Procedure section 425.16, commonly referred to as an anti-SLAPP motion. The trial court found that all three causes of action were subject to the anti-SLAPP statute because they arose, at least partly, from activity protected by the anti-SLAPP statute, i.e., the solicitation of Gribow’s clients. The court further found that Gribow did not establish a probability of prevailing on the second and third causes of action because defendants’ activity was within the litigation privilege provided by Civil Code section 47, subdivision (b). The court therefore granted the motion as to these causes of action. The court denied the motion as to the fifth cause of action, stating that the litigation privilege did not apply to contract claims and its application to this claim did not further the policies underlying the privilege.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Defendants appealed from the denial of their anti-SLAPP motion as to the fifth cause of action, and Gribow appealed from the granting of the motion as to the second and third causes of action. Reviewing the matter de novo, we affirm the trial court’s ruling striking the second and third causes of action and reverse the decision as to the fifth cause of action. Although we do not disagree with the trial court’s conclusion that the litigation privilege does not apply to Gribow’s fifth cause of action, we conclude that Gribow has not established a probability of prevailing on the claim.
I. FACTUAL AND PROCEDURAL SUMMARY
A. The TAC
We summarize the material allegations in the TAC as follows.
In March 2002, Gribow “hired” Burns as a “de facto partner” to handle personal injury and medical malpractice cases and to manage the firm’s “civil personal injury and medical malpractice department.” Gribow agreed to pay Burns a stated percentage of the gross attorney fees earned on such cases, with a draw against commissions and payment for medical insurance. Burns agreed to work only on civil cases in Gribow’s law office. Based upon the suggestion and approval of Burns, Gribow subsequently hired Robinson on similar terms.
In one allegation, Gribow alleges that Robinson was hired in August 2002; in another, that he was hired in December 2003.
Burns and Robinson owed to Gribow fiduciary duties, including duties to give appropriate notice of withdrawal from the firm, not solicit clients of the firm prior to giving notice, refrain from competing with Gribow, not disparage the remaining members of the law firm or compete for clients using false statements, and not interfere with existing contracts and business opportunities regarding existing clients prior to giving notice of withdrawal. The agreements with Burns and Robinson also included “the covenant of good faith and fair dealing that is part of all contracts as a matter of law.”
In September 2004, Burns and Robinson left Gribow’s firm and formed the Robinson Burns firm. Prior to leaving, Burns and Robinson “influenced and made arrangements with some of [Gribow’s] clients to leave [Gribow’s] law firm and to retain Defendants and their new law firm.” In inducing clients to leave the Gribow firm, Burns and Robinson offered the clients reduced fees and advised the clients that Gribow was not competent to handle legal matters and did not have the clients’ best interests in mind. They drafted letters for the clients’ signatures terminating the clients’ relationships with Gribow and had the clients sign substitution of attorney forms causing defendants to replace Gribow as attorney of record in pending litigation. Burns and Robinson also convinced one of Gribow’s employees to copy confidential and proprietary computer files, information, and programs and deliver them to Burns and Robinson.
The clients solicited by Burns and Robinson included Richard Wasson (by and through his guardian ad litem, Ruth Wasson), Craig Fischlein (by and through his guardian ad litem, Maddi Fischlein), and Maddi Fischlein (collectively, Wasson and Fischlein), who were plaintiffs in a personal injury action (the Wasson-Fischlein action). Such solicitation included the making of false and misleading representations and “personally scurrilous representations” concerning Gribow. As a result, Wasson and Fischlein terminated their relationship with Gribow and substituted Robinson Burns as their counsel in the Wasson-Fischlein action. The Wasson-Fischlein action was subsequently resolved, resulting in attorney fees of approximately $5.6 million, which is being held in financial institutions under terms of stipulations between the parties and court orders.
By the foregoing actions, Burns and Robinson interfered with Gribow’s contractual relationships with Gribow’s clients and breached their fiduciary duties and the implied covenants of good faith and fair dealing. For each of the second, third, and fifth causes of action, Gribow sought “general and special damages” and “exemplary and punitive damages.”
B. The Anti-SLAPP Motion
Defendants’ anti-SLAPP motion was supported by declarations from Ruth Wasson, Sherri Gosselin, and Maddi Fischlein, among others. Wasson states that her 43-year-old son, Richard Wasson, was in an automobile accident in June 2002 that caused an injury to his brain resulting in limited physical and mental capacity. As a result, Richard functions at about an 11-year-old level. In July 2002, she retained Gribow to represent Richard in a lawsuit arising out of the accident. Following a conference arranged by Gribow to discuss settlement in June 2004 and another conference with Gribow the following month, Wasson became suspicious of Gribow’s motives, believed Gribow was being dishonest with her, and began to doubt Gribow’s integrity and knowledge of the case. She was also troubled by an apparent disagreement between Gribow and Burns regarding the merits of the case. After Burns told her he was going to work outside of Gribow’s firm, she asked him to take her son’s case. Neither Burns nor Robinson asked her to fire Gribow. Rather, she asked Burns to represent her son because she was concerned that Gribow was conducting a fraudulent scheme against the interests of her son. If Burns had not agreed to represent her son, she would still have fired Gribow to protect her son’s interests.
Sherri Gosselin and Patricia Brodersen, Richard Wasson’s sisters, made declarations that generally parallel Ruth Wasson’s declaration. Gosselin concludes: “When Mr. Burns later terminated his association with the Gribow office, we as a family decided Richard would be better off represented by him than the Gribow firm. We made our decision without urging from anyone, including Mr. Burns. I was at no time solicited by Mr. Burns or anyone acting in his behalf. Everyone in the family agreed that he and Glen Robinson, who left the Gribow firm to go with Mr. Burns, were the attorneys who knew the case and the attorneys in whom we had confidence. We agreed to ask Mr. Burns to represent Richard. Under no circumstances would we have continued with the Gribow firm.” Brodersen’s declaration concludes with a similar statement.
Craig Fischlein was injured in the accident with Richard Wasson and hospitalized for two months. In his declaration, he states that his wife, Maddi Fischlein, retained Gribow while he was hospitalized. He states that Burns was always the lawyer in charge of his case, and he came to respect and trust him. By the conclusion of the conference with Gribow in June 2004, he had lost confidence in Gribow. Subsequent letters written by Gribow were offensive and made him feel that Gribow was trying to deceive him. Neither Robinson nor Burns asked him or his wife to terminate their relationship with Gribow or to employ defendants. He and Maddi called Burns to ask if he would represent them, and Burns agreed to do so.
Maddi Fischlein’s declaration generally parallels Craig’s declaration and concludes: “I was glad when Don Burns and Glen Robinson left the Gribow firm. Craig and I called [Burns] to ask if he and [Robinson] would represent us if we discharged Gribow. He said they would. Neither he nor Mr. Robinson asked us to quit Gribow and go with them. We asked them. After what we had been through with Gribow... the only reason we stayed with the Gribow firm at all was that Don Burns and Glen Robinson were still there. If they hadn’t been able to represent us, we would have found another lawyer, but whatever the case, we would not have stayed with Gribow.”
Gribow supported his opposition to the motion with his own declaration. He brought this action, he explains, “for the wrongful and fraudulent taking of legal business from me, namely, two particular clients, Richard Wasson and Craig Fischlein.” According to Gribow, he and Burns entered into an agreement creating a “partnership arrangement” in March 2002 whereby Burns would manage the personal injury and medical malpractice cases and the two would share in the legal fees. In July 2002, Richard Wasson and Craig Fischlein retained Gribow to represent them for claims arising from their automobile accident. At some point, Gribow hired Robinson as an associate. Gribow subsequently agreed to an arrangement with Robinson similar to his profit sharing arrangement with Burns. Gribow considered Robinson as “a partner and agent of the firm.” In July and August 2004, Gribow “was standing by both of the clients and doing whatever was necessary to prepare for trial as was Mr. Burns and Mr. Robinson.” On September 1, 2004, Burns and Robinson filed for a fictitious business name, “Law Office of Robinson Burns, ” entered into a lease for a new office, and began soliciting business on Robinson Burns letterhead. By September 4, 2004, Wasson and Fischlein signed substitution of attorney forms replacing Gribow with Robinson Burns. On September 6, 2004, the Wassons and Fischleins sent letters to Gribow discharging him as their attorney. The next day, Robinson informed Gribow of his resignation and the Wassons and Fischleins signed a new retainer agreement with Robinson Burns. Two days later, Burns submitted his resignation to Gribow. The Wasson-Fischlein action was subsequently tried and judgment was entered in Richard Wasson’s favor in the amount of $12.34 million and in Craig Fischlein’s favor in the amount of $10 million. A related insurance bad faith case was subsequently filed by Robinson Burns, which settled in November 2006. The attorney fees for the Wasson-Fischlein action and the insurance bad faith case are currently held in trust pursuant to a court order.
Following oral argument on the anti-SLAPP motion, the court took the matter under submission. Gribow thereafter submitted approximately 395 pages of documents that were, according to Gribow’s counsel, inadvertently omitted from his opposition papers. The same documents had been previously submitted by Gribow in support of his opposition to a motion for summary judgment. Defendants objected to the belated submission. The court subsequently stated that it “is not limited to the declarations that were filed in [the anti-SLAPP] motion; it is free to examine the entire file, including the Complaint and any declarations that were filed in the... action. The Court did so, including reading the entire Motion for Summary Judgment that had previously been filed.” Where relevant, we will discuss this additional evidence below.
C. The Court’s Ruling
The court issued a statement of decision granting the anti-SLAPP motion as to the second and third causes of action for intentional interference with contract and breach of fiduciary duty, respectively, and denied the motion as to the fifth cause of action for breach of the implied covenant of good faith and fair dealing. The court found that each challenged cause of action is “subject to the anti-SLAPP statute because they arose, at least partly, from a protected activity. Specifically, the causes of action arose directly from communications between the clients and defendants about pending lawsuits against the clients....” As such, “the communications were made in connection with an issue under consideration or review by a judicial body” for purposes of section 425.16, subdivision (e), clause (2). Relying on Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482 (Taheri), the court explained that “[s]olicitation of clients is a protected activity.”
As to the second cause of action, the court found that the gravamen of the claim is that defendants wrongfully solicited Gribow’s clients. Such conduct, the court explained, “comes within the litigation privilege of [Civil Code section 47, subdivision (b)] and so it is absolutely privileged. That is, it cannot give rise to liability for intentional interference with prospective economic advantage or for any other tort except malicious prosecution.” The court therefore granted the anti-SLAPP motion as to the second cause of action.
Regarding the third cause of action for breach of fiduciary duty, the court noted that the solicitation of clients is again a basis for the claim. However, Gribow has “alleged other unprotected conduct as breaches as well, specifically, a duty to give notice of withdrawal, a duty to refrain from competing with [Gribow] and a duty not to disparage [Gribow].” These allegations did not preclude the application of the anti-SLAPP statute. The allegations of solicitation, the court explained, “represent the bulk of the allegations underlying the cause of action. Moreover, the harm purportedly caused by the protected conduct forms the bulk of [Gribow’s] damages. Like the second cause of action, the protected activity (‘solicitation’) comes within the litigation privilege... and so it is absolutely privileged. In addition, the Court finds the evidence submitted by [Gribow] does not demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” The court therefore granted the motion as to the third cause of action.
The court denied the motion as to the fifth cause of action for breach of the implied covenant of good faith and fair dealing because “the litigation privilege does not apply to contract claims” and “application of the litigation privilege does not further the policies underlying the privilege.”
II. ANALYSIS
A. Anti-SLAPP Principles and Standard of Review
The anti-SLAPP statute, section 425.16, was enacted “to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statute provides, in part: “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 or 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.” (§ 425.16, subd. (b)(1).) An “‘act in furtherance of a person’s right of petition or free speech... in connection with a public issue’” includes “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[.]” (§ 425.16, subd. (e), cl. (2).)
The statute establishes a “two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation].” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; § 425.16, subd. (b)(1); see also Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239 [defendant’s “only burden was to establish that the claims fell within the ambit of the statute”].) The statute’s “definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, at p. 92.) A “plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308, fn. omitted.) If a challenged cause of action involves both protected and unprotected conduct, the cause of action will be subject to the anti-SLAPP statute unless the protected conduct is merely incidental or collateral to the unprotected conduct. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 (Peregrine Funding); Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103 (Mann); see also Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551, fn. 7 [“where the defendant shows that the gravamen of a cause of action is based on nonincidental protected activity as well as nonprotected activity, it has satisfied the first prong of the SLAPP analysis”].)
If the court finds that the defendant has made a sufficient showing that a cause of action arises from protected activity, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; § 425.16, subd. (b)(1).) “For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ [Citation.] In making this assessment it is ‘the court’s responsibility... to accept as true the evidence favorable to the plaintiff....’ [Citation.] The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
On appeal, we review the court’s order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 [Fourth Dist., Div. Two].)
B. Waiver of Right to Bring Anti-SLAPP Motion as to Second Cause of Action
Initially, we address an argument by Gribow that defendants have waived the right to file their anti-SLAPP motion as to the second cause of action for intentional interference with contractual relations. Gribow points out that the original complaint was filed in October 2004 and included a cause of action for intentional interference with contractual relationship. A first amended complaint (filed in May 2005) and a second amended complaint (filed in February 2009) also included the same claim. Yet, while this claim has been in this case since October 2004, defendants did not file their anti-SLAPP motion until after the TAC was filed more than four years later. Therefore, Gribow argues, defendants have waived the right to file an anti-SLAPP motion as to this claim.
Gribow does not make a similar argument as to the breach of fiduciary duty and implied contract claims, which were not asserted until the second amended complaint was filed in February 2009.
Gribow relies upon the maxim of jurisprudence that “[a]ny one may waive the advantage of a law intended solely for his benefit.” (Civ. Code, § 3513.) “Waiver, ” for purposes of this principle, “means the intentional relinquishment or abandonment of a known right.” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048.) The “known right” in this case is the right to file an anti-SLAPP motion. The right is created by the anti-SLAPP statute. Under this statute, an anti-SLAPP motion must “be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Code Civ. Proc. § 425.16, subd. (f).) The word “complaint” in this statute includes an amended complaint. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 314-315.) Therefore, each successive pleading gives rise to a new and independent right in the defendants to file an anti-SLAPP motion as to such pleading. (See Code Civ. Proc. § 425.16, subd. (f); Yu v. Signet Bank/Virginia, supra, at pp. 314-315.) It follows that a failure to file an anti-SLAPP motion as to an earlier pleading has no effect on the subsequently created right to file a motion as to later pleadings. Defendants had a statutory right to file their anti-SLAPP motion up until the 60th day following service of the TAC. By filing their motion as to the TAC within the time permitted, defendants expressly asserted that right. No relinquishment or abandonment of the right occurred. We therefore reject this argument.
C. First Prong: Causes of Action Arise From Protected Activity
Defendants contend that each of the challenged causes of action arise from protected activity because they each involve allegations that they solicited Gribow’s clients—in particular, Wasson and Fischlein—to leave Gribow’s firm and join defendants’ new firm. The clients were involved in litigation pending in the trial court. Such solicitation, they assert, constitutes protected activity as statements “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[.]” (§ 425.16, subd. (e), cl. (2).) They rely, as did the trial court, on Taheri, supra, 160 Cal.App.4th 482.
In Taheri, the plaintiff law firm (Taheri) sued an attorney, Evans, for intentional interference with prospective economic advantage and intentional interference with business relations. (Taheri, supra, 160 Cal.App.4th at p. 485.) Taheri alleged that Evans knew of the economic relationship between Taheri and its clients, the Sorokurs, and induced the Sorokurs to terminate their relationship with Taheri and hire Evans based on Evans’s promises to enforce the clients’ settlement agreement. (Id. at pp. 485-486.) Evans then filed an anti-SLAPP motion, which the trial court granted. The Court of Appeal affirmed. Taheri argued that the cause of action did not arise from protected activity because it “arose from Evans’s conduct soliciting a client, ‘not what [Evans] did when he got into the case.’” (Id. at p. 489.) The Court of Appeal rejected this argument: Taheri’s “complaint plainly shows it arose from Evans’s communications with Sorokurs about pending litigation, and from Evans’s conduct in enforcing the settlement agreement on Sorokurs’s behalf. The fact that some of Evans’s communications took place while Taheri was Sorokurs’s attorney—communications which Sorokurs says he initiated—is irrelevant to the question whether the lawsuit arises from communications ‘made in connection with an issue under consideration or review by a... judicial body....’ (§ 425.16, subd. (e)(2).)” (Ibid.) The court further explained: “Taheri’s causes of action arise directly from communications between Sorokurs and Evans about the pending lawsuits against Sorokurs.... In short, it is difficult to conjure a clearer scenario than the case before us of a lawsuit arising from protected activity.” (Ibid.)
Gribow argues that Taheri is distinguishable because, unlike the soliciting attorney in Taheri, Burns and Robinson had a prior relationship with Gribow and the clients. The distinction is irrelevant. The issue in Taheri was whether Evans’s solicitation of Taheri’s clients constituted statements made in connection with an issue under consideration by a judicial body for purposes of the anti-SLAPP statute. (Taheri, supra, 160 Cal.App.4th at p. 489.) What mattered to the Taheri court is the fact that Evans’s communications with Taheri’s clients concerned pending litigation. (Ibid.) Whether Evans did or did not have a prior relationship with Taheri had no bearing on the court’s analysis or holding. Nor should it. A solicitation of a client by an attorney that constitutes a statement made in connection with an issue under consideration by a judicial body does not have a different quality merely because it is uttered by an attorney who has a preexisting relationship to the client’s attorney. We therefore reject the attempt to distinguish Taheri on this basis.
The trial court correctly relied on Taheri for its conclusions as to the first prong of the anti-SLAPP analysis. It is clear from our review of the TAC that defendants’ alleged solicitation of Gribow’s clients—in particular, the Wasson and Fischlein clients—to leave Gribow’s firm and join defendants’ new firm is central and essential to each of the challenged causes of action. In the allegations applicable to all causes of action, Gribow alleges, for example: (1) “Defendants deceived [Gribow] by concealing their conduct in establishing their new law practice and soliciting [Gribow’s] clients... ”; (2) defendants “did intentionally, personally or otherwise contact said clients with the intent to induce a breach [of the clients’ contracts with Gribow]”; (3) defendants “persuaded, solicited and encouraged [Wasson and Fischlein] to leave [Gribow] and to follow Defendants Burns and Robinson to the law office of Robinson Burns and to substitute Defendants’ new law firm as their counsel of record, which they did”; (4) Burns and Robinson “continued to personally contact other clients of [Gribow] for the express purpose of persuading said clients to terminate [Gribow] and retain Defendants”; and (5) the “conduct of Defendants and each of them in persuading said clients to discharge the present services of [Gribow] caused a termination of the attorney-client relationship previously existing resulting in economic damages to [Gribow].”
For his second cause of action for intentional interference with contractual relationship, Gribow alleges: (1) the existence of contracts between himself and clients; (2) Burns and Robinson’s knowledge of such contracts; and (3) that defendants interfered with the contracts “by systematically, intentionally, wantonly and maliciously contacting [Gribow’s] clients for the express purpose of persuading said clients to terminate [Gribow] and retain Defendants.” The allegations in this cause of action fall squarely within the Taheri rule: the solicitation of the clients concerned pending litigation and were thus statements made in connection with an issue under consideration by a judicial body. (§ 425.16, subd. (e), cl. (2); Taheri, supra, 160 Cal.App.4th at p. 489.) The second cause of action is therefore subject to the anti-SLAPP statute.
For the third cause of action for breach of fiduciary duty, Gribow alleges that Burns and Robinson violated their fiduciary duties to Gribow by: (1) withdrawing from the firm without giving prior notice “thereby denying Gribow the opportunity to compete for and persuade certain clients to remain with the Firm”; (2) “wrongfully solicit[ing] certain clients of the Firm, most notably Craig Fischlein, Maddi Fischlein and Richard Wasson”; and (3) disparaging Gribow and sabotaging his potential for keeping the Wasson and Fischlein clients with the firm “by making false and misleading representations of fact in addition to personally scurrilous representations concerning Mr. Gribow for the purpose of inducing said three clients to agree to leave the Gribow Firm with Defendants, which they did.” Although this cause of action includes the allegation that withdrawing from the firm without notice constitutes a breach of a fiduciary duty, the protected conduct (the solicitation of clients) is not merely incidental or collateral to the alleged unprotected conduct. (See Peregrine Funding, supra, 133 Cal.App.4th at p. 672.) Therefore, this cause of action is also subject to the anti-SLAPP statute.
In the fifth cause of action for breach of the implied covenant of good faith and fair dealing, Gribow essentially incorporates all preceding allegations and adds that Burns and Robinson, by “their actions, as set forth herein, ... have breached the implied covenant of good faith and fair dealing in the oral contract.” It “is established that conduct alleged to constitute a breach of contract may also come within the statutory protections for protected speech or petitioning.” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1483-1484.) We focus on the activities that allegedly breached the contract. (Id. at p. 1484.)
The actions incorporated into the fifth cause of action include the protected actions of contacting and soliciting the Gribow clients in connection with litigation. Although Gribow also alleges conduct in addition to the acts of solicitation, such conduct appears to be incidental to the acts of client solicitation. He alleges, for example: (1) Burns was incapable of competently managing Gribow’s personal injury clients and cases; (2) Burns hired and supervised an employee who embezzled nearly $475,000 from Gribow; and (3) Burns and Robinson left Gribow’s firm without notice or warning, established a competing law office, and abandoned all duties owed to Gribow. To the extent such allegations arise from unprotected conduct, the allegations of protected conduct (i.e., solicitation of Gribow’s clients) giving rise to the breach of the implied covenant are not merely incidental or collateral to the unprotected conduct. Therefore, the allegations of unprotected conduct do not affect the conclusion that each cause of action arises from protected activity within the meaning of the anti-SLAPP statute. (See Peregrine Funding, supra, 133 Cal.App.4th at p. 672; Mann, supra, 120 Cal.App.4th at p. 103.)
Gribow also contends defendants wrongfully obtained highly confidential and proprietary information belonging to Gribow. Defendants contend that these allegations are not actionable because the trial court had previously granted summary adjudication as to a cause of action for misappropriation of confidential information and violation of the Uniform Trade Secrets Act. Gribow does not dispute this contention. Accordingly, we do not consider the allegations.
D. Second Prong: Probability of Prevailing
Under the second prong of the anti-SLAPP analysis, we consider whether Gribow has carried his burden of showing a probability of prevailing as to the merits of the claim. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 88; § 425.16, subd. (b)(1).) Defendants contend that each of the challenged claims are barred by the litigation privilege and that Gribow has otherwise failed to establish a probability of prevailing on his claims. We address each cause of action separately.
Defendants also contend that, if the litigation privilege is not a defense to a challenged cause of action, Gribow has not otherwise established a probability of prevailing on his claims.
1. Second Cause of Action: Intentional Interference with Contractual Relationship
The gravamen of Gribow’s second cause of action for intentional interference with contractual relationship is that defendants interfered with Gribow’s contractual relationships with his clients by soliciting the clients to leave Gribow’s firm and retain Robinson Burns. In paragraph 49 of the TAC, Gribow alleges defendants intentionally interfered with his contracts with his clients by “contacting [Gribow’s] clients for the express prupose of persuading said clients to terminate [Gribow] and retain Defendants.” In paragraph 50, Gribow alleges that defendants’ conduct “in persuading said clients to discharge the services of [Gribow] caused a breakdown of those contractual relationships and the termination of the attorney-client relationship[s] therein previously existing.” Finally, such conduct allegedly caused Gribow damages. Defendants contend the alleged wrongful conduct is protected by the litigation privilege. We agree.
The litigation privilege is codified in Civil Code section 47: “A privileged publication... is one made: [¶]... [¶]... In any... judicial proceeding....” (Civ. Code, § 47, subd. (b).) The privilege is supported by “the broadly applicable policy of assuring litigants ‘the utmost freedom of access to the courts to secure and defend their rights....’ [Citation.]” (Rubin v. Green (1993) 4 Cal.4th 1187, 1194 (Rubin).) Accordingly, “California courts have given the privilege an expansive reach.” (Id. at pp. 1193-1194, fn. omitted.) If the privilege applies, it is a defense to any tort action except malicious prosecution. (Id. at p. 1194; Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “The litigation privilege is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing. [Citations.]’ [Citation.]” (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1485.) Although the plaintiff opposing an anti-SLAPP motion has the burden of substantiating his claims, to the extent the plaintiff’s probability of prevailing turns on the merits of an affirmative defense asserted by the defendant, the defendant “properly bears the burden of proof on the defense.” (Peregrine Funding, supra, 133 Cal.App.4th at p. 676.)
“[A] ‘threshold issue in determining the applicability’ of the privilege is whether the defendant’s conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature. [Citations.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) “[I]f the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct.... [Citations.] Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” (Id. at p. 1065.)
The litigation privilege was applied in a case involving a law firm’s solicitation of clients for litigation in Rubin, supra, 4 Cal.4th 1187. In that case, Gerald Rubin, the owner of a mobilehome park, sued a law firm and a client of the firm, Norma Green, who was also a resident of the park. (Id. at p. 1191.) Rubin alleged the law firm and Green, acting as the firm’s agent, solicited residents of the park for the purpose of commencing litigation against the park owners. (Id. at pp. 1191-1192.) Rubin alleged that such solicitation interfered in Rubin’s contractual relations with the residents and constituted an unfair business practice. (Ibid.) The Supreme Court held that the litigation privilege provided that the defendants were “absolutely immune from civil tort liability.” (Id. at p. 1203.) The court explained: “[P]laintiff’s claims, however styled, are founded essentially upon alleged misrepresentations made by the law firm (and Green) to [park] residents in the course of discussions over park conditions and the possibility of being retained to prosecute the failure-to-maintain action, and the subsequent filing of pleadings in the lawsuit itself. Whether these acts amounted to wrongful attorney solicitation or not, they were communicative in their essential nature and therefore within the privilege of [Civil Code] section 47[, subdivision] (b).” (Id. at p. 1196.)
Gribow acknowledges that his second cause of action may “at first glance” appear to be controlled by Rubin, but argues that Rubin is distinguishable. Indeed, there are significant factual differences between Rubin and the present case. Rubin, the mobilehome park owner, was not an attorney and did not have a prior employment or partnership relationship with the attorneys he was suing. Nor did Rubin have an attorney-client relationship with the park residents who were being solicited by the defendants. Moreover, unlike Rubin, who asserted that the park residents’ litigation was frivolous, Gribow is not disputing the validity of Wasson and Fischlein’s personal injury lawsuit. These factual differences, however, are irrelevant to our application of the litigation privilege to Gribow’s claim. Rubin makes clear that soliciting clients with respect to litigation is a communicative act within the scope of the litigation privilege. The court’s holding did not depend upon the facts Gribow relies on to distinguish it. The alleged solicitation of clients by Burns and Robinson in this case is no less of a communicative act related to a judicial proceeding than the solicitation of clients in Rubin. The litigation privilege, therefore, provides defendants with immunity from Gribow’s action for interference with contractual relationships. It follows that Gribow cannot establish a probability of prevailing on this claim.
In addition to Rubin, defendants rely upon Taheri, supra, 160 Cal.App.4th 482 for support of the argument that the litigation privilege defeats Gribow’s claims for purposes of the second prong of the anti-SLAPP analysis. Taheri, however, discussed the litigation privilege only briefly and only in connection with the first prong of the anti-SLAPP analysis. Therefore, we do not rely on it in connection with the second prong.
2. Third Cause of Action: Breach of Fiduciary Duty
As the trial court noted, the third cause of action is based not only upon defendants’ solicitation of Gribow’s clients, but upon other conduct as well. Specifically, Burns and Robinson allegedly breached fiduciary duties owed to Gribow when they “(1) withdrew from the Firm without having previously given [Gribow] any Notice of Withdrawal, thereby denying Gribow the opportunity to compete for and persuade certain clients to remain with the Firm if Defendants chose to leave the Firm; (2) began wrongfully solicit[ing] certain clients of the Firm, most notably Craig Fischlein, Maddi Fischlein and Richard Wasson, weeks or months prior to [Burns’s] actual withdrawal from the Gribow Firm...; [and] (3) during the months leading up to September 8, 2004, Defendants disparaged and sabotaged Mr. Gribow’s potential for keeping said three clients with the Firm by making false and misleading representations of fact in addition to personally scurrilous representations concerning Mr. Gribow for the purpose of inducing said three clients to agree to leave the Gribow Firm with Defendants, which they did.” As a result, Gribow “did not know Defendants intended to leave the Firm until after the fact, and was thereby denied the opportunity to attempt to persuade [the Wasson and Fischlein] clients to remain with the Firm rather than leaving with Defendants; and Gribow thereby lost the benefit of his existing contracts with [the Wasson and Fischlein clients], a loss of legal fees in excess of $5,000,000.00.”
Under the heading “GENERAL ALLEGATIONS, ” Gribow alleges other conduct, such as (1) Burns’s alleged inability to competently manage Gribow’s clients, cases, and employees; (2) Burns’s hiring and supervision of an employee who embezzled money from Gribow; and (3) Burns’s act of convincing an employee to copy computer files and deliver them to Burns and Robinson. Although such general allegations are incorporated into the cause of action for breach of fiduciary duty, they are not expressly referred to in the allegations concerning the conduct constituting breaches of alleged fiduciary duties.
The alleged actions numbered (2) and (3) are patently communicative acts within the litigation privilege for the reasons discussed in the preceding part. Although the first alleged breach—the failure to give notice of withdrawal (if such notice was required)—may not itself be encompassed by the litigation privilege, it does not take the claim outside the ambit of the defense. We are concerned with the gravamen of the cause of action. As set out above, “if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct.... [Citations.] Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065.) “[T]he key” is determining “whether the injury allegedly resulted from an act that was communicative in its essential nature.” (Id. at p. 1058.) The essential injury to Gribow in this case is the loss of fees caused by the departure of the Wasson and Fischlein clients. The clients’ departure was caused, according to the TAC, most directly by Burns’s and Robinson’s solicitation of them. The relationship between the failure by Burns and Robinson to give notice of their withdrawal from the firm and the departure of the clients is simply too attenuated to constitute the gravamen of the claim. Because the gravamen of the claim is the communicative act of soliciting the Wasson and Fischlein clients, the litigation privilege provides defendants with immunity as to the breach of fiduciary duty claim.
3. Fifth Cause of Action: Implied Covenant of Good Faith and Fair Dealing
The trial court denied the anti-SLAPP motion based on the conclusion that the litigation privilege did not apply to the fifth cause of action for breach of the implied covenant of good faith and fair dealing. Although we do not disagree with the court’s application of the litigation privilege, we hold that Gribow has nevertheless failed to establish the requisite probability of prevailing on this claim. As we explain below, there is no evidence that defendants actually solicited the Wassons or Fischleins to terminate their relationship with Gribow or to retain Robinson Burns. Rather, it appears that Burns and Robinson did no more than inform the clients of their withdrawal from the Gribow firm and the formation of their new firm, after which the clients requested that defendants represent them. To the extent Gribow’s claim is based on the assertion that the covenant of good faith and fair dealing is breached by such conduct, we hold that the claim is legally insufficient.
According to the TAC, Gribow entered into an agreement with Burns in 2002 which specifies that “Burns share a gross percentage of attorney fees earned by [Gribow] on certain cases resolving after the date of the agreement.” A similar agreement was entered into between Gribow and Robinson in 2003. Each of them are allegedly “bound by the covenant of good faith and fair dealing that is part of all contracts as a matter of law.” Under California law, this implied covenant “imposes upon each party a duty of good faith and fair dealing in the performance of the contract such that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55; see generally 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 798, p. 892.) Gribow alleges that Burns and Robinson breached this implied covenant by the actions alleged in the TAC.
To satisfy his burden as to the second prong of the anti-SLAPP analysis, Gribow must demonstrate that the claim is both legally sufficient and supported by a prima facie showing of facts, based on competent admissible evidence, to sustain a judgment in his favor. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; Mann, supra, 120 Cal.App.4th at p. 105.) In determining whether this showing has been met, we consider both the supporting and opposing affidavits. (§ 425.16, subd. (b); Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646, overruled on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
In supporting the anti-SLAPP motion, defendants submitted the declarations of Ruth Wasson (Richard Wasson’s mother and guardian ad litem), Sherri Gosselin (Richard Wasson’s sister), Patricia Broderson (Richard Wasson’s sister), Craig Fischlein, and Maddi Fischlein. These individuals declared they were not solicited or encouraged by defendants to discharge Gribow or to retain Robinson Burns; rather, after learning that Burns and Robinson were leaving Gribow’s firm, the Wassons and Fischleins approached Burns about representing them. In his opposition to the motion, Gribow offered his own declaration. Although he makes argumentative and conclusionary statements that defendants had been “scheming to... take the Wassons and Fischleins as clients for themselves” and “plotting to take the clients of my firm, ” he offers no facts to contradict the evidence submitted by defendants that the clients were not actually solicited. Thus, even if Gribow could state a contract cause of action based upon defendants’ solicitation of clients, he has not established a probability of prevailing as to such claim.
Gribow does not argue or suggest that he could obtain evidence of facts to support his assertions if he conducted additional discovery. Nor did he seek leave to conduct discovery to address the issues raised by the anti-SLAPP motion. (See, e.g., § 425.16, subd. (g) [court may permit discovery pending anti-SLAPP motion upon motion and for good cause].) Indeed, there has been ample opportunity in this case for discovery. As Gribow states in his brief, this “case was filed in 2004 and has languished through motions, demurrers, discovery, and depositions.”
To the extent that Gribow contends that merely accepting the clients’ requests to retain defendants constitutes a breach of the implied covenant, the claim conflicts with overriding policies protecting the defendants’ right to practice law, their duty of loyalty to the clients, and the clients’ interests in being represented by the attorneys of their choice.
Generally, it is the public policy in California “that ‘[a] former employee has the right to engage in a competitive business for himself and to enter into competition with his former employer, even for the business of... his former employer, provided such competition is fairly and legally conducted.’ [Citations.]” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1149; see Bus. & Prof. Code, § 16600.) For lawyers, the State Bar Rules of Professional Conduct generally prohibits members of the bar from entering into an agreement that “restricts the right of a member to practice law[.]” (Rules Prof. Conduct, rule. 1-500(A).) Although the rule also provides for such a restriction as part of an employment or partnership agreement, such an agreement is permitted only if it “does not survive the termination of the employment, shareholder, or partnership relationship[.]” (Id., rule 1-500(A)(1).) This rule “‘enables a departing attorney to withdraw from a partnership and continue to practice law anywhere within the state, and to be able to accept employment should he choose to do so from any client who desires to retain him.’” (Howard v. Babcock (1993) 6 Cal.4th 409, 419, italics added, quoting Haight, Brown & Bonesteel v. Superior Court (1991) 234 Cal.App.3d 963, 969-970.) To construe the implied covenant of good faith and fair dealing to prohibit Burns and Robinson from accepting the Wassons and Fischleins as clients would create a conflict with this rule of professional conduct. The rule and the policy that supports it are compelling reasons to reject such a construction.
Although the solicitation of customers of a former employer may, under some circumstances, constitute the misappropriation of a trade secret, no cause of action arises from merely informing customers of a change in employment or receiving business from the customers without solicitation. (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 203-204; Reeves v. Hanlon, supra, 33 Cal.4th at p. 1156.) Moreover, Gribow does not allege that defendants’ contact with the clients constituted the misappropriation of a trade secret.
Burns’s and Robinson’s duty of loyalty to their clients also supports the rejection of Gribow’s interpretation of the implied covenant. At the time Burns and Robinson decided to terminate their relationship with Gribow and informed the Wassons and Fishleins of the decision, they were attorneys for the Wassons and Fischleins. That is, although the Wassons and Fischleins formally retained the Gribow firm, Burns and Robinson (either as Gribow’s partners or employees) were no less their attorneys. As such, Burns and Robinson owed them the duties of undivided loyalty and to serve their best interests. (See, e.g., Mason v. Levy & Van Bourg (1978) 77 Cal.App.3d 60, 66 [Fourth Dist., Div. Two]; Joseph A. Saunders, P.C. v. Weissburg & Aronson (1999) 74 Cal.App.4th 869, 873.) These duties override any conflicting duty Burns owed to Gribow. (See Joseph A. Saunders, P.C. v. Weissburg & Aronson, supra, at p. 874; see also State Bar Standing Com. on Prof. Responsibility & Conduct, Formal Opn. No. 1985-86, p. 1 [when an attorney withdraws from a firm, “the interests of the clients must prevail over all competing considerations”].) These duties include informing the client of an attorney’s withdrawal from employment prior to the withdrawal. (Rules Prof. Conduct, rule 3-700(A)(2).) Indeed, the California State Bar Standing Committee on Professional Responsibility and Conduct has opined that all attorneys involved in the representation of the clients “are required to inform the client of the client’s right to select either the former firm, the withdrawing attorneys, or another lawyer, to handle their legal matter in the future.” (State Bar Standing Com. on Prof. Responsibility & Conduct, Formal Opn. No. 1985-86, p. 3.)
In light of the overriding obligations owed to the clients, the duty of good faith and fair dealing implied in the agreement alleged by Gribow does not include any obligation that conflicts with Burns’s and Robinson’s duties to inform the clients of their withdrawal from the Gribow firm and of the clients’ rights to select the defendants to represent them in the future. Because Burns and Robinson cannot breach the implied covenant of good faith and fair dealing by setting up a competing law firm, informing the clients of their withdrawal from the Gribow firm, or accepting the clients’ requests for representation, Gribow’s claim of such a breach is legally insufficient.
Finally, we agree with defendants that Gribow has failed to show that other alleged conduct by defendants breached an implied covenant of good faith and fair dealing and damages resulting from such conduct. For example, Gribow points to his declaration in which he states that Burns was operating his own practice despite his promise to spend 100 percent of his time on Gribow’s cases; yet he does not explain how this caused any damage. Gribow also claims that Burns brought into Gribow’s firm numerous cases that turned out to have no merit, costing him over $120,000. He does not refer us to any authority that would permit the owner of a law firm to sue the firm’s attorneys for bringing in cases that turn out to be losing causes. Indeed, permitting such a cause of action would make partners and associates in a law firm virtual guarantors of the successful outcome of the clients’ cases. Moreover, if Gribow was concerned about the quality of the cases Burns brought into the firm, he was, as the owner of his firm, in a position to review and evaluate the merits of the cases before accepting them. We therefore decline to hold that bringing losing cases into a law firm is a breach of the implied covenant. Gribow’s complaint that his firm incurred over $10,000 in discovery sanctions due to Burns’s handling of cases fares no better. Gribow also blames Burns for his bookkeeper’s embezzlement of $450,000, but offers no facts to suggest any wrongdoing by Burns in connection with the theft. Finally, Gribow states that he “discovered that... payments that were made by [Gribow’s] office to Mr. Burns were being deposited into [Burns’s] trust account and co-mingled with his clients’ funds.” (Underlining omitted.) It is not clear from this statement or other evidence what payments Gribow is referring to or whether it was wrongful to deposit them in Burns’s trust account, and how Gribow was thereby harmed.
For all the foregoing reasons, we conclude that Gribow has failed to establish both the legal sufficiency of his claim for breach of the implied covenant of good faith and fair dealing or a prima facie showing of facts sufficient to support a favorable judgment.
Defendants assert that Gribow has a claim for the reasonable value of his fees under quantum meruit principles and that the granting of the anti-SLAPP motion does not impair that claim. (See, e.g., Fracasse v. Brent (1972) 6 Cal.3d 784, 792 [contingency fee lawyer discharged by clients may recover in quantum meruit for the reasonable value of services]; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 272 [same].) Gribow does not dispute this assertion.
III. DISPOSITION
The order granting defendants’ anti-SLAPP motion as to the second and third causes of action is affirmed. The order denying defendants’ anti-SLAPP motion as to the fifth cause of action is reversed; the court is directed to enter a new order granting the anti-SLAPP motion as to the fifth cause of action. Defendants shall recover their costs on appeal.
We concur: Ramirez P.J., Hollenhorst J.