Case Number: BC590869    Hearing Date: June 14, 2016    Dept: 37

CASE NAME: Giorgio v. Freeman, Freeman & Smiley, et al.

CASE NO.: BC590869

HEARING DATE: 6/14/16

DEPARTMENT: 37

CALENDAR NO.: 7

TRIAL DATE: None

NOTICE: OK

SUBJECT: Special Motion to Strike the Complaint ( Code Civ. Proc., § 425.16)

MOVING PARTY: Defendant Michael Caliva

OPPOSING PARTY: Plaintiff Paola Giorgio

COURT’S TENTATIVE RULING

The motion is granted. Plaintiff’s objections to the motion’s timeliness is overruled. Defendant’s objections to the declarations of William G. McDevitt and Paola Giorgio are sustained in part and overruled in part, as set forth below. Counsel for Defendant to give notice.

STATEMENT OF THE CASE

This action arises out of Defendant Michael Caliva’s conduct as successor trustee to his mother’s trust, The Jewel Caliva Trust (the JC Trust). In the complaint, Plaintiff Paola Giorgio alleges that she was a one-third beneficiary of the JC Trust, but that as trustee Michael Caliva mismanaged and misappropriated trust property without regard to Plaintiff’s interests. She also alleges that Jared Barry and Freeman, Freeman & Smiley, LLP (FFS), as Michael Caliva’s attorneys, participated in the wrongful conduct to secure payment of their own attorney fees for services rendered in connection with a will contest. The court previously denied Mr. Barry and FFS’s motions to strike the complaint pursuant to Civil Code section 1714.10 and Code of Civil Procedure section 425.16. Mr. Caliva now specially moves to strike the complaint pursuant to Code of Civil Procedure section 425.16.

DISCUSSION

I. Timeliness

As a threshold matter, Plaintiff contends that the motion is untimely and should not be considered on the merits. Under the statute, litigants “may” file a special motion to strike the complaint “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).) Here, while the present motion was not filed within 60 days of the service of the complaint, the court directed Mr. Caliva to file the motion at the hearing on Mr. Caliva’s motion to quash service of summons. (Declaration of Stephen H. Turner ¶ 2.) The court advised Mr. Caliva’s counsel that he had until May 6, 2016 to file a responsive pleading (Turner Decl. ¶ 3), and Mr. Caliva filed this motion on April 28, 2016. In

addition, the anti-SLAPP statute provides that the motion shall be scheduled by the clerk of court for a hearing not more than 30 days after the service of the motion “unless the docket conditions of the court require a later hearing.” ( Code Civ. Proc., § 425.16, subd. (f).) Here, the first available hearing date for the motion was June 14, 2016. (Turner Decl. ¶ 4.) Thus, there is no basis to determine that Mr. Caliva did not follow the statutory procedure for filing and serving this motion on Plaintiff. The court therefore considers the motion on its merits.

II. Legal Standard

The procedure for bringing a special motion to strike a strategic lawsuit against public participation (SLAPP) is set forth in section 425.16. In pertinent part, the statute provides, “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 Constitution or the 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).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Id. § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Bergstein v. Stroock & Stroock & Lavan LLP, (2015) 236 Cal.App.4th 793, 803.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Equilon, at p. 61.) From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

III. Evidentiary Objections

Defendant objects to certain statements made in the declarations of William G. McDevitt and Paola Giorgio. The court rules on the objections as follows:

William G. McDevitt

Overruled: 1-4

Sustained: 5-13

Paola Giorgio

Overruled: 1, 6- 8, 10, 14-17

Sustained: 1-5, 7, 11, 13

IV. Analysis

The action against Mr. Caliva is twofold. First, Plaintiff alleges that he engaged in wrongful conduct as trustee of the JC Trust. (Compl. ¶¶ 2-5, 9-11.) Second, she alleges that Mr. Caliva caused to be filed and financed the will contest to protect against the consequences of his wrongful conduct as trustee. (Compl. ¶¶ 7-8, 65.) She alleges that Mr. Caliva sold real property owned by the JC Trust to finance the will contest and pay himself a trustee fee. (Compl. ¶ 15.) In support of this motion, Mr. Caliva presents evidence that Plaintiff has obtained all proceeds from the sale of the real property to which she is entitled as a beneficiary of the JC Trust; that the fees owed to FFS from the will contest were not paid from Plaintiff’s portion of the sale proceeds; that he has returned all proceeds taken as a trustee fee; and that he has disavowed any claim to such a fee. (Declaration of Michael Caliva ¶¶ 2-4, 6-7.) Thus, Mr. Caliva argues that there is no causation because Plaintiff has been made whole. In addition, Plaintiff has received an accounting performed by Miller & Co., Certified Public Accountants, and she has approved its contents. (Caliva Decl. ¶ 5.) As a result, Mr. Caliva’s primary argument on this motion is that Plaintiff’s action is based only on the attorney fees she incurred in defending the will contest.

The allegations in Plaintiff’s complaint support Mr. Caliva’s position. For instance, Plaintiff alleges that as a result of Mr. Caliva’s breach of fiduciary duties and tortious conduct, she retained attorneys to represent her in the will contest and in efforts to obtain an accounting, and that she has consequently incurred $400,000 in attorney fees and $30,000 in costs. (Compl. ¶¶ 58, 76.) She avers that she is entitled to recovery compensation for the reasonably necessary loss of time, attorney fees, and other expenditures incurred under the so-called “tort of another” doctrine. (Compl. ¶¶ 56-57.)

As Mr. Caliva points out, since the filing of the complaint, Plaintiff has similarly asserted that the purpose of this action is to recover the attorney fees and costs she incurred in defending the will contest. For instance, in opposition to Mr. Caliva’s motion to quash, Plaintiff represented that the purpose of this action was “to recover hundreds of thousands of dollars in attorneys’ fees incurred by GIORGIO because CALIVA financed a Will contest filed by his son with money from the estate of Jewel Caliva.” (Opposition filed 3/25/16, p. 3:3-5.) In support of the opposition, Plaintiff’s counsel asserted, “The subject action against Michael Caliva for attorneys’ fees under the doctrine of ‘[t]ort of another’ arises directly out of his misconduct and breach of fiduciary duties in the underlying Will contest.” (Declaration of William G. McDevitt filed 3/25/16, p. 6:18-21.)

In opposition to this motion, Plaintiff does not dispute Mr. Caliva’s declaration, in which he attests to the fact that Plaintiff has been paid all money to which she is entitled

as a trust beneficiary, and that he has repaid all money he had taken as a trustee fee.1 The result is that Plaintiff’s only remaining claim for damages is for the attorney fees she incurred in defending the will contest. As Mr. Caliva contends, the prosecution and financing of a lawsuit, such as the will contest, is protected activity under the anti-SLAPP statute. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [anti-SLAPP motion covers “communicative conduct such as the filing, funding, and prosecution of a civil action”].) On the second step of the analysis, Mr. Caliva contends that his alleged conduct is protected by the litigation privilege. The privilege generally applies to communications (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. (Id. at p. 1057.) In the circumstances presented by this case, the litigation privilege would appear to apply to Mr. Caliva’s litigation-related conduct, and Plaintiff presents no argument to the contrary.

The litigation privilege applies to all torts except malicious prosecution. (Rusheen, supra, 37 Cal.4th at p. 1057.) While Plaintiff could conceivable recover the attorney fees and costs she incurred in the underlying will contest as damages on a cause of action for malicious prosecution, counsel for Plaintiff has represented to the court that there is no claim for malicious prosecution in the complaint. (5/26/16 Minute Order.) Consequently, Plaintiff has not shown that she has a reasonable probability of prevailing on her action against Mr. Caliva.

In sum, Mr. Caliva has shown that the gravamen of the action against him is for his role in causing to be filed and prosecuting the underlying will contest. Plaintiff does not dispute that she has received all proceeds to which she is entitled as a trust beneficiary, that she has received and approved of an accounting of trust property, or that Mr. Caliva has repaid all funds taken as a trustee fee. Plaintiff also does not dispute that the litigation privilege applies to her action, which as she has previously confirmed to the court, does not include a cause of action for malicious prosecution. Plaintiff therefore has not demonstrated a probability of prevailing on the merits. For these reasons, the motion is granted.
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1 In addition, Mr. Caliva points out that Plaintiff does not appear to contend that the Mesmer property was sold for less than what it was worth.