Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC100034, Lisa Hart Cole, Judge.
Erik Lang, in pro. per., for Plaintiff and Appellant.
Warren W. Roché, in pro. per., for Defendant and Respondent Warren W. Roché; Daar & Newman, Jeffery J. Daar for Defendant and Respondent Daar & Newman; Samuel T. Rees for Defendant and Respondent Samuel T. Rees.
BOREN, P.J.
Appellant Erik E. Lang filed a lawsuit for malicious prosecution against his long-standing opponent, Warren W. Roché, and against Roché’s attorneys Samuel T. Rees and Daar & Newman (the Attorneys). Lang’s lawsuit arises from a 1995 defamation action filed by the Attorneys on behalf of Roché (the Underlying Lawsuit). Roché and the Attorneys moved to strike Lang’s malicious prosecution action as a Strategic Lawsuit Against Public Participation (SLAPP), pursuant to Code of Civil Procedure section 425.16. The trial court granted the motion and dismissed Lang’s lawsuit.
All undesignated statutory references in this opinion are to the Code of Civil Procedure.
The trial court was too hasty to dismiss Lang’s action. At the time, the Underlying Lawsuit was being dismissed as a SLAPP: the court in the Underlying Lawsuit had ruled in Lang’s favor, and only Roché’s untimely motion for reconsideration impeded entry of a final judgment. The court erred by refusing to continue the hearing in this case. Had the court continued the case for two weeks-until a final judgment was entered in the Underlying Lawsuit-the court would have insisted that respondents bring their motion under section 425.18, the “SLAPPback” statute, instead of § 425.16. We remand the case for the court to apply section 425.18 to Lang’s claims of malicious prosecution and emotional distress. However, we affirm the court’s ruling striking Lang’s conspiracy claim.
FACTS
Background
We once again rehearse the torturous history of litigation between former neighbors Lang and Roché. As Lang indicates in a declaration, he has been in a dispute with Roché “for about 22 years.” This is the fourth appeal we have entertained from them. The background of this appeal is excerpted from our prior opinions.
The prior appeals are Lang v. Roche (Jul. 27, 2005, B176388) [nonpub opn.]; Lang v. Roche (May 16, 2007, B192213) [nonpub opn.]; and Roché v. Lang (Mar. 9, 2010, B214622) [nonpub opn.]. We take judicial notice of these opinions because they are related prior proceedings leading to the present appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 401.)
Roché sued Lang twice for defamation, in 1989 and 1995. Roché’s 1995 lawsuit (the Underlying Lawsuit) named “Eric Lang” as defendant, and was served by newspaper publication on “Eric Lang, ” which is not appellant’s correct name. At the time, Lang and Roché resided within eyesight of each other in Topanga Canyon. Roché has had Lang’s mailing address since 1977, when he sold neighboring real property to Lang.
The Attorneys represented Roché in the Underlying Lawsuit. The Attorneys convinced the trial court to order service by newspaper publication, based on the declaration of a public records researcher who was “unable to locate a person named ERIC LANG.” Attorney Rees declared that he was “not aware of any other method of service which would be effective, ” although Lang had been regularly served at a post office box in two prior litigations with Roché. The Underlying Lawsuit filed by the Attorneys references Roché’s 1989 lawsuit and judgment against Lang: these documents contain the correct spelling of Lang’s name. After the service by newspaper publication on “Eric Lang, ” the Attorneys obtained a judgment by default for $50,000 against “Eric Lang” in the Underlying Lawsuit. Roché subsequently executed on the default judgment and obtained Lang’s real property in Topanga Canyon for $100 at a sheriff’s sale.
When Lang learned of the Underlying Lawsuit and the default judgment in 2003, he instituted an action to have the judgment set aside on the grounds that service of process was legally deficient. Lang’s 2003 lawsuit arose from respondents’ conduct in suing him under the wrong name and failing to properly serve him with the Underlying Lawsuit at his known address. Lang asked the court to void the judgment.
In 2008, following two appeals by Lang to this Court (B176388 and B192213), the superior court conducted a trial on Lang’s claim of improper service of process. After hearing the evidence, the court vacated Roché’s default judgment. Roché subsequently served Lang-properly, this time-with the summons and complaint in the Underlying Lawsuit. Lang successfully moved to strike the complaint as a SLAPP, and Roché’s lawsuit was dismissed.
On March 9, 2010, in B214622, this Court affirmed the trial court’s dismissal of the Underlying Lawsuit. As discussed in the opinion, Lang’s allegedly defamatory statements were made in a government claim presented to the County of Los Angeles. As a result, Lang’s acts “‘were taken in furtherance of his constitutional right of free speech in connection with a public issue, ’” which satisfied the threshold showing that the Underlying Lawsuit “arises from protected activity.” Moving to the next phase of the analysis, Roché “submitted no admissible evidence demonstrating a probability of success on the merits of his libel claim.” Further, Lang’s statements in a claim presented to the government were absolutely privileged under Civil Code section 47, which “encompasses communications to administrative bodies and government agencies whose function is to investigate and remedy alleged wrongdoing, ” regardless of the maliciousness of the communications.
The Present Lawsuit
On October 2, 2008, Lang instituted the present lawsuit against Roché and the Attorneys. Lang’s first amended complaint asserts three claims: (1) malicious prosecution; (2) conspiracy; and (3) intentional infliction of emotional distress. Lang’s claims arise from respondents’ improper service and maintenance of the Underlying Lawsuit.
Lang alleges that respondents intentionally sued him under the wrong name; failed to serve him at his known residence or post office box; concealed information regarding his whereabouts from the process server and a public records investigator; misrepresented to the trial court that he could not be served personally or by mail; and obtained a default judgment against him based on the improper service. Respondents concealed the default judgment from Lang: he learned of its existence shortly before Roché executed on the judgment in 2003, at which time he obtained Lang’s Topanga Canyon real property at a sheriff’s sale for $100.
Lang asserts that respondents’ oppressive and wrongful conduct amounts to malicious prosecution. He contends that the Attorneys conspired with Roché to devise the scheme to deprive Lang of his due process by effecting service in a way that was designed to keep Lang in the dark about the Underlying Lawsuit. Respondents’ acts caused Lang to suffer emotional distress.
Respondents’ Anti-SLAPP Motions
On January 5, 2009, Roché moved to dismiss Lang’s action complaint pursuant to section 425.16. On January 7, 2009, the Attorneys moved to dismiss Lang’s action pursuant to section 425.16. Respondents argued that the cause of action for malicious prosecution was premature because the Underlying Lawsuit had not terminated in Lang’s favor, an essential element for a claim for malicious prosecution.
The Underlying Lawsuit Terminates in Lang’s Favor
On January 8, 2009, one day after the Attorneys moved to strike Lang’s action, the trial court terminated the Underlying Lawsuit in favor of Lang. The court found that the defamation lawsuit arose from Lang’s activities “taken in furtherance of his constitutional right of free speech in connection with a public issue.” The trial court in the Underlying Lawsuit also concluded that Roché “fails to offer evidence to meet his burden of showing a probability of prevailing on the merits.” Thirteen days later-three days beyond the jurisdictional limit on motions for reconsideration-Roché asked the court to reconsider its ruling. His untimely request was denied on March 17, 2009.
Lang asked the trial court in the present case to take judicial notice of the January 8, 2009, ruling in his favor in the Underlying Lawsuit. Lang also asked the court to continue the hearing on respondents’ motion for 30 days, until the court in the Underlying Lawsuit could rule on Roché’s request for reconsideration. Lang cited section 425.18 in support of his request for a continuance.
The Trial Court’s Ruling
At a hearing on March 2, 2009, the trial court acknowledged Lang’s request for a continuance, but indicated that it was “not really sure” about the application of section 425.18 to this case. It found no good cause to continue the hearing on respondents’ motion. In its ruling on the merits, the court granted respondents’ motions to dismiss Lang’s lawsuit as a SLAPP under section 425.16. The court determined that the claim for malicious prosecution was premature because the Underlying Lawsuit “has not proceeded to a final judgment.” The court entered a judgment dismissing Lang’s action. Lang’s appeal is timely.
DISCUSSION
We must reverse the judgment because the trial court erroneously failed to grant a continuance and-at respondents’ instance-applied the wrong statute.
1. Section 425.18 Is the Applicable Statute
Respondents filed their motions under section 425.16. Lang brought to the court’s attention that the applicable statute is section 425.18, the SLAPPback statute. A SLAPPback “is an action, typically for malicious prosecution ‘filed by the target of a SLAPP suit against the SLAPP filer after the dismissal of the SLAPP suit as a result of the target’s appropriate use of the SLAPP statute.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279.) A SLAPPback seeks compensation for damages suffered by SLAPP victims, who “‘commonly experience stress-related health issues, strained family relationships, and financial distress or even insolvency. The only way a SLAPP victim can recover for these damages is to pursue a legal claim against the person or entity that filed the original SLAPP.’” (Id. at p. 280.) The Legislature has declared that “a SLAPPback cause of action should be treated differently... from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature’s intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP... litigation and by its restoration of public confidence in participatory democracy.” (§ 425.18, subd. (a).)
Lang’s lawsuit is a SLAPPback. In the Underlying Lawsuit, respondents accused Lang of making defamatory statements in a government claim; however, statements made in a government claim are absolutely privileged. As a result, Lang successfully SLAPPed down the Underlying Lawsuit, as is discussed in detail in our opinion in B214622. Lang’s present lawsuit seeks compensation for the financial damage wrought by respondents’ SLAPP, including the loss of Lang’s real property in Topanga Canyon, which Roché obtained at a sheriff’s sale based on a default judgment in the Underlying Lawsuit against “Eric Lang.” Section 425.18 is the statute applicable to this case.
2. Request for a Continuance
Lang requested a continuance pursuant to section 425.18, subdivision (e): “A party opposing a special motion to strike a SLAPPback may file an ex parte application for a continuance to obtain necessary discovery. If it appears that facts essential to justify opposition to that motion may exist, but cannot then be presented, the court shall grant a reasonable continuance to permit the party to obtain affidavits or conduct discovery or may make any other order as may be just.” (Italics added.)
The fact “essential to justify opposition” in this case was the trial court’s imminent judgment in the Underlying Lawsuit. As Lang argued in his request for a continuance, once he obtained a final ruling in the Underlying Lawsuit, he could establish a probability of prevailing upon the merits of the present case. Moreover, Lang contended, the trial court could analyze the case using “the appropriate Code of Civil Procedure Section, ” which is section 425.18. Lang added, “In this way, the decision of this court will be legally sound and my complaint will not be further prejudiced by Roché’s post-judgment maneuvers to revive his failed defamation action.”
Unfortunately, the court did not heed Lang’s reasoning, and denied his motion for a continuance. The court deemed Lang’s malicious prosecution claim to be “premature, ” even though the Underlying Lawsuit was resolved in Lang’s favor two months earlier. The only impediment was Roché’s request for reconsideration of the ruling in Lang’s favor. On March 17, 2009, the trial court in the Underlying Lawsuit denied Roché’s request for reconsideration and granted Lang’s motion for dismissal. In its minute order, the court wrote, “the Court granted [Lang’s] Special Anti-SLAPP Motion to Strike on January 8, 2009 and today denied [Roché’s] Motion to Reconsider that prior ruling.”
The court’s refusal to grant a continuance was improper. The Underlying Lawsuit was effectively over, given the untimeliness of Roché’s request for reconsideration of the January 8 ruling in Lang’s favor. Under the circumstances, granting a reasonable continuance was mandatory, under section 425.18, because delaying the hearing for a short period was essential to Lang’s opposition to respondents’ motion to dismiss his malicious prosecution claim. Failure to grant a continuance under the proper circumstances is reversible error. (Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 556-557.)
3. Lang’s Conspiracy Claim Fails
The Attorneys brought a separate motion to strike based on Lang’s failure to obtain a prefiling order from the court before suing them for conspiracy under Civil Code section 1714.10. Lang claims that he is exempted from obtaining a prefiling order. The trial court found that no exemption applies and struck Lang’s conspiracy claim. The order is appealable (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 818-819 (Berg)), and review is de novo. (Id. at p. 822.)
“No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.” (Civ. Code, § 1714.10, subd. (a).)
“An attorney may be sued and held separately liable by a third party for malicious prosecution based on representation of a client where there is no probable cause and no tenable basis for pursuing the underlying action.” (Westamco Investment Co. v. Lee (1999) 69 Cal.App.4th 481, 487.) “[I]t is unnecessary to plead a civil conspiracy to pursue a malicious prosecution action against an attorney who files and prosecutes an action on behalf of a client.” (Ibid.) A “plaintiff’s cause of action for malicious prosecution [is] not subject to the prefiling approval requisites of section 1714.10.” (Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1506.) If the plaintiff does plead a civil conspiracy against lawyers stemming from their legal representation, he must comply with Civil Code section 1714.10.
Lang alleges a conspiracy involving the Attorneys. Accordingly, he had to obtain a prefiling order, unless exempt. No prefiling order is required “where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.” (Civ. Code, § 1714.10, subd. (c).)
The Attorneys owe no fiduciary or other independent legal duty to Lang. No duty arises merely by virtue of the Attorneys’ professional representation of Lang’s adversary in litigation. (See Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 605.) It makes no difference whether the Attorneys have assisted Roché recently: any assistance arises from their legal representation of Roché.
In his pleading, Lang alleges fraudulent activity by the Attorneys. Fraudulent representations made by an attorney to a nonclient may give rise to an independent duty to the person to whom the representations are made. (Berg, supra, 131 Cal.App.4th at p. 825; Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 395, 397; Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 69-73; Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692, 711.) Here, Lang alleges that the Attorneys gave their client, Roché, bad advice about suing Lang under the wrong name and serving process on Lang in an improper manner. Whatever the Attorneys may have said to their client, it does not translate into an actual fraudulent misrepresentation made to Lang. Any alleged bad advice the Attorneys gave to Roché does not give rise to an independent legal duty to Lang under Civil Code 1714.10, although it may serve as an underpinning to a malicious prosecution claim.
Lang has not shown that the Attorneys conspired to violate a legal duty “in furtherance of the attorney’s financial gain.” (Civ. Code, § 1714.10, subd. (c)(2).) To make such a showing, Lang must demonstrate that the Attorneys acted for their own benefit or for a financial advantage “that is over and above ordinary professional fees earned as compensation for performance of the agency.” (Berg, supra, 131 Cal.App.4th at p. 834; Panoutsopoulos v. Chambliss (2007) 157 Cal.App.4th 297, 306.) For example, they must have “a personal financial interest in the outcome of the litigation separate and apart from customary fees.” (Berg, supra, at p. 834, citing Evans v. Pillsbury, Madison & Sutro, supra, 65 Cal.App.4th at pp. 605-607.) Lang offers no evidence of any such personal financial interest by the Attorneys.
Because Lang is not exempt from the prefiling requirement of Civil Code section 1714.10, and failed to obtain a prefiling order, his second cause of action against the Attorneys for conspiracy was properly dismissed.
4. Attorney Fees and Costs Award
The trial court awarded attorney fees and costs to respondents under section 425.16, subdivision (c)(2). Because we are reversing the court’s ruling on the SLAPP motion, we must also reverse its award of attorney fees.
CONCLUSION
We remand the case to the trial court to conduct an analysis under section 425.18. The court should consider whether respondents’ filing or maintenance of the Underlying Lawsuit was “illegal as a matter of law.” (§ 425.18, subd. (h).) Respondents’ activities in the Underlying Lawsuit include everything this Court described in its opinions in B176388, B192213, and B214622. We direct the trial court’s attention to our opinions relating to the Underlying Lawsuit, to the Supreme Court’s opinion in Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th 260, to Hutton v. Haif (2007) 150 Cal.App.4th 527, and to any relevant statutes or case authority. The court may invite briefing from the parties on the subject of section 425.18 before making its ruling, and apply principles of res judicata where appropriate.
We direct Lang’s attention to page 4 of our opinion in B176388: “Lang’s litany of grievances against the government is irrelevant to this lawsuit and will be ignored.” We must ignore whether a government employee “smuggled an unpasteurized bottled beer into this country.” Lang must stay narrowly focused on the due process problems and fairness of the Underlying Lawsuit.
DISPOSITION
The judgment in favor of respondents pursuant to Code of Civil Procedure section 425.16 is reversed. The judgment granting Samuel Rees and Daar & Newman’s motion to strike under Civil Code section 1714.10 is affirmed. The award of attorney fees and costs is reversed. Erik Lang may recover his costs on appeal from respondents. (Cal. Rules of Court, rule 8.278(a).)
We concur: DOI TODD, J., CHAVEZ, J.