Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. SP006907, John H. Reid, Judge.
Horvitz & Levy, David M. Axelrod, Jeremy B. Rosen; Bloom & Ruttenberg and Gary M. Ruttenberg for Defendant and Appellant.
Kirby & McGuinn, Cheryl Edwards Tannenberg; Esner, Chang & Ellis, Gregory R. Ellis and Stuart B. Esner for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Steven M. Garber & Associates, a law firm, appeals from a March 2, 2007 order denying its special motion to strike. (Code Civ. Proc., § 425.16.) The section 425.16 motion was brought with respect to a petition filed by plaintiff, Charles C. Snyder, as acting successor trustee of the Anna K. Sokol Trust. The petition alleges financial elder abuse, undue influence, and negligence and seeks the return of trust funds. According to the petition, defendant facilitated the misappropriation of substantial sums of money from a disabled conservatee. We conclude the gravamen of plaintiff’s claims does not arise from petitioning activity.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
II. BACKGROUND
Plaintiff’s petition alleges as follows. Anna K. Sokol was the truster and trustee of the Anna K. Sokol Trust (the personal trust). Ms. Sokol was a 93 year old widow and plaintiff’s aunt. Plaintiff had a power of attorney for Ms. Sokol’s medical and financial affairs and he had assisted her in those matters. In the fall of 2001, Ms. Sokol suffered a stroke. Following the stroke, according to the petition: “[S]he required 24-hour care in her home and [was] confined to a wheelchair. As a result of the stroke, she had a marked change in her personality. She became paranoid, easily enraged, suspicious of others, fearful, irrational, impulsive, and known to frequently use poor judgment in personal and financial matters. She relied on her sister . . . . [But her sister] passed away in the spring of 2003, leaving Ms. Sokol alone.” Further, it was alleged Ms. Sokol became “more susceptible to the influence” of others.
According to the petition: in fall 2003, Ms. Sokol became friends with Alex Christenson, a 40-year-old man and a client of defendant; Mr. Christenson unduly influenced Ms. Sokol to his financial benefit; Mr. Christenson took her to defendant to amend her trust and powers of attorney; and Mr. Christenson advised her not to take certain medication, which led to her eviction from the care facility in which she lived. Plaintiff became concerned and asked Ms. Sokol to resign as trustee of the personal trust. Ms. Sokol refused. In early March 2004, Steven M. Garber and Mr. Christenson moved Ms. Sokol to an undisclosed location. Plaintiff consulted with Ms. Sokol’s doctor and caregivers; on March 10, 2004 plaintiff filed a conservator ship petition as to his aunt. Ms. Sokol, represented by defendant, opposed the petition. In April 2004, defendant obtained a court order giving Ms. Sokol control of the personal trust, worth $1.9 million, subject to a monthly accounting to plaintiff’s counsel. The personal trust was then transferred from Spelman & Co., which had managed it for years, to a Charles Schwab office in defendant’s Los Angeles office building. The next day, $600,000 in personal trust funds was transferred to a checking account in Ms. Sokol’s name. Ms. Sokol drew on that account to pay defendant and to write checks to Mr. Christenson, as well as to pay caregivers and other routine bills. The $600,000 disbursement from the personal trust was never reported on the monthly accountings defendant prepared on Ms. Sokol’s behalf. In the conservator ship action, defendant propounded no discovery devices and relied solely on two psychiatrist’s reports. Defendant filed 90 pages of objections to plaintiff’s evidence.
In August 2004, the probate court found Ms. Sokol was in need of a conservator. A private professional fiduciary was appointed to serve as conservator. In October 2004, defendant demanded that Spelman & Co. release the funds in a separate trust, the Sokol Family Trust (the family trust). Plaintiff and Ms. Sokol were the co-trustees of the family trust. When Spelman & Co. officials refused to release the funds it held, litigation was threatened. On November 15, 2004, plaintiff gave notice he intended to obtain an order freezing the family trust accounts and removing Ms. Sokol as trustee of both the personal and family trusts. Also on November 15, 2004, defendant demanded and received a $100,000 check from the trust funds held in Ms. Sokol’s checking account. On November 17, 2004, the probate court suspended Ms. Sokol’s authority to act as trustee of both trusts. The conservator was appointed interim trustee of the personal trust. Plaintiff remained the sole trustee of the family trust. On December 28, 2004, the conservator, as interim trustee, reported Ms. Sokol had paid over $50,000 to Mr. Christenson in November 2004, and had paid almost $300,000 to defendant. According to the petition, “The interim trustee also reported that Ms. Sokol was surprised and outraged when told that she had paid such large sums of money to [defendant].” In January 2005, as a result of pressure by defendant and Mr. Christensen, the conservator requested she be discharged. On January 10, 2005, a new conservator was appointed. The probate court ordered that any further fees defendant sought would be subject to its approval. On January 20, 2005, defendant filed a petition to be relieved as Ms. Sokol’s counsel. On February 3, 2005, the probate court granted defendant’s request to be relieved as counsel. Defendant had billed Ms. Sokol a total of $298,511.55.
In his first cause of action, plaintiff seeks to recover trust property pursuant to Probate Code section 850 on grounds defendant billed Ms. Sokol in an excessive amount. Plaintiff alleges: defendant acted with knowledge the funds came from the personal trust; Ms. Sokol “was substantially unable to manage her own financial affairs or understand what services were provided to her”; and this was due to Ms. Sokol’s age and her mental condition. Plaintiff’s second cause of action alleges financial elder abuse in violation of Welfare and Institutions Code section 15657 et seq. Plaintiff asserts: defendant knew Ms. Sokol used trust funds to pay expenses; defendant obtained a court order giving Ms. Sokol control over the trust despite knowledge she was unable to manage the trust assets; defendant had the trust funds transferred to a Charles Schwab office; the Charles Schwab office was located in the same building as defendant’s offices; defendant immediately transferred $600,000 to Ms. Sokol’s checking account, an amount that exceeded her needs; and defendant wrongfully billed Ms. Sokol in an excessive amount with knowledge the money paid to it was coming from the trust. The third cause of action alleges undue influence in that defendant held a position of confidence as Ms. Sokol’s attorney and unduly influenced her to its financial advantage. The fourth cause of action is for negligence. Plaintiff asserts defendant owed a duty of care to the trust and to Ms. Sokol as trustee; further, defendant breached that duty by negligently and carelessly billing and collecting excessive fees from Ms. Sokol with knowledge the funds came from the trust.
Defendant filed a special motion to strike the petition. Defendant argued the petition arose from its constitutionally protected petitioning activity on Ms. Sokol’s behalf. The trial court disagreed and denied the special motion to strike. This appeal followed.
III. DISCUSSION
An attorney who is sued for statements made on a client’s behalf in a judicial proceeding, or in connection with an issue under court review, has standing to bring a section 425.16 motion. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton, LLP (2005)133 Cal.App.4th 658, 670, fn. 7; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; see Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th at 1106, 1116.) When a special motion to strike is made, the trial court must first consider whether the moving defendant has carried its burden of showing that the lawsuit falls within the purview of section 425.16; i.e., arises from constitutionally protected speech or petitioning activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 964-965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) The moving defendant has the initial burden of establishing a prima facie case that plaintiff’s cause of action arises out of conduct in furtherance of petition or free speech rights. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, overruled on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10.) The Supreme Court set forth the applicable standard for examining the first part of the special motion to strike burden shifting process in City of Cotati v. Cashman, supra, 29 Cal.4th at page 79: “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” If the moving defendant fails to meet this threshold burden, the special motion to strike must be denied. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 76, 80-81; California Back Specialists Medical Group v. Rand (Mar. 6, 2008, B198455) ___ Cal.App.4th ___, ___ [2008 Cal.App. LEXIS 340].) Our review is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
In City of Cotati v. Cashman, supra, 29 Cal.4th at pages 76-80, the Supreme Court considered whether a state lawsuit filed in response to a federal lawsuit arose from petitioning activity. The Supreme Court concluded the threshold burden was not met because the state court action arose not from the federal lawsuit but from the controversy underlying both actions. The Supreme Court held in part: “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. [Section 425.16] cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002; see also Briggs [v. Eden Council for Hope & Opportunity], supra, 19 Cal.4th at p. 1114 [‘arise from’ means ‘based upon’].” (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 76-77.) The Supreme Court explained: “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. (See ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1001, and cases cited.) In the [section 425.16] context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. (Equilon [Enterprises v. Consumer Cause, Inc.], supra, 29 Cal.4th at pp. 67-68; see also Briggs [v. Eden Council for Hope & Opportunity], supra, 19 Cal.4th at p. 1114.)” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)
Thus, the first prong analysis focuses on: the substance of the plaintiff’s cause of action (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton, LLP, supra, 133 Cal.App.4th at pp. 669-670; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 419); the fact that the “defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition . . . .” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78; ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at 1001); “the critical point” of “whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition . . .” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 269-270); the gravamen of the plaintiff’s claim (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78; California Back Specialists Medical Group v. Rand, supra, __ Cal.App.4th at p. __); whether the protected activity is collateral or merely incidental to the plaintiff’s claims (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 794, 807-810); “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 (2002) 29 Cal.4th 82, 92; Garretson v. Post (2007) 156 Cal.App.4th 1508, 1522); the “wrongful injury-producing conduct on which these claims are based arises from the nature of the” misconduct (Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at pp. 416-417); or the “principal thrust” of the plaintiff’s claims. (California Back Specialists Medical Group v. Rand, supra, __ Cal.App.4th at p. __; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) But an allegation concerning protected petitioning activity that is merely incidental or collateral to the cause of action does not make the claim subject to section 425.16. (Freeman v. Schack, supra, 154 Cal.App.4th at p. 727; Wang v. Wal-Mart Real Estate Business Trust, supra, 153 Cal.App.4th at pp. 794, 807-810; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 672; Mann v. Quality Old Time Services, Inc. (2004) 120 Cal.App.4th 90, 103; Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 414.)
The gravamen of plaintiff’s petition does not arise from defendant’s petitioning activity on Ms. Sokol’s behalf. Plaintiff alleges defendant—with knowledge Ms. Sokol was not competent to manage her financial affairs or to understand what services it was providing to her—facilitated her control of and access to trust funds and then billed her in an excessive amount, thereby wrongfully and knowingly coming into possession of trust funds. The gravamen of these acts was not in furtherance of defendant’s or Ms. Sokol’s petition rights. Plaintiff does allege defendant obtained a court order granting Ms. Sokol control of the personal trust. But the target of plaintiff’s cause of action is not the manner in which defendant allegedly facilitated Ms. Sokol’s access to trust funds—by court order—but the fact and effect of that control and access—allowing defendant to obtain trust funds. The gravamen of plaintiff’s claims do not arise from defendant’s conduct in: opposing plaintiff’s conservator ship petition; threatening Spelman & Co. with litigation; or petitioning to be relieved as Ms. Sokol’s counsel. Those actions are collateral to plaintiff’s misappropriation based claims. (Freeman v. Schack, supra, 154 Cal.App.4th at pp. 727-734; Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1536-1541; Benasra v. Mitchell Silberberg & Knupp LLP (2005) 123 Cal.App.4th 1179, 1185-1189; Moore v. Shaw (2004) 116 Cal.App.4th 182, 195-200; Jespersen v. Zubiate-Beauchamp, supra, 114 Cal.App.4th at pp. 628-632.)
Defendant’s reliance on Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at pages 671-675, a case that evinces a distinctly minority perspective, is misplaced. In Peregrine Funding, Inc., the defendant, a law firm, was alleged to have blocked a Securities and Exchange Commission investigation by means of “stalling and stonewalling” activities, which enabled an investment company “to solicit—and steal—more money” from various investors. (Id. at p. 671.) In Peregrine Funding, Inc., the petitioning related conduct itself—litigating before the Securities and Exchange Commission—caused injury by allowing the fraudulent investment scheme to continue to bilk investors. Here, the gravamen of plaintiff’s claim is the misappropriation of money and the petitioning related conduct is collateral to the allegations in the petition. Plaintiff’s causes of action are based on non protected activity—unduly influencing an elderly woman to pay over money.
Finally, there is no merit to defendant’s reliance on a decision of our colleagues in Division Eight of this appellate district in Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 485-489. In Taheri Law Group, the plaintiff’s economic relations interference claims arose from the solicitation of a client concerning a pending lawsuit. The solicitations at issue involved a pending lawsuit and thus fell within the provisions of section 425.16, subdivision (e)(2). (Taheri Law Group v. Evans, supra, 160 Cal.App.4th at p. 489.) Here, the gravamen of the plaintiff’s complaint involves not solicitations of a potential client—but overbilling. Defendant did not meet its threshold burden. Therefore, the section 425.16 motion was properly denied.
IV. DISPOSITION
The March 2, 2007 order denying the special motion to strike is affirmed. Plaintiff, Charles C. Snyder, as acting successor trustee of the Anna K. Sokol Trust, is to recover his costs on appeal from defendant, Steven M. Garber & Associates.
We concur: ARMSTRONG, J., KRIEGLER, J.