Case Number: BC708186    Hearing Date: October 31, 2018    Dept: 47

Loretta Gruber v. Irwin B. Feinberg, et al.

(1) – (5) ANTI-SLAPP SPECIAL MOTIONS TO STRIKE (x5);

(6) & (7) NOTICES OF JOINDER (x2)

MOVING PARTY:               (1) Defendant Sandra Gruber;

                                                (2) Defendant Kenneth Gruber;

                                                (3) Defendant Continental Precision Stamping, Inc.;

                                                (4) Defendant Bradford Gruber;

                                                (5) Defendants Irwin B. Feinberg and Feinberg, Mindel, Brandt & Klein, LLP;

                                                (6) Defendant Bradford Gruber;

                                                (7) Defendants Irwin B. Feinberg and Feinberg, Mindel, Brandt & Klein, LLP

RESPONDING PARTY(S): (1) – (5) Plaintiff Loretta Gruber;

                                                (6) & (7) No oppositions filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            Plaintiff alleges that Defendants conspired to obtain a judgment against Plaintiff out of community property held by Plaintiff and Defendant, who were concurrently going through a marital dissolution proceeding, to circumvent Plaintiff’s right to her share of community property assets.

            All Defendants have brought anti-SLAPP special motions to strike.

TENTATIVE RULING:

Defendant Sandra Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendant Kenneth Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendant Continental Precision Stamping, Inc. anti-SLAPP special motion to strike is DENIED.

            Defendant Bradford Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendants Irwin Feinberg and Feinberg Mindel Brandt & Klein, LLP’s anti-SLAPP special motion to strike is GRANTED.

Defendant Bradford Gruber’s notice of joinder is DENIED.

Defendants Irwin B. Feinberg and Feinberg, Mindel, Brandt & Klein, LLP’S ’s notice of joinder is DENIED.

DISCUSSION:

Defendant Sandra Gruber’s Anti-SLAPP Special Motion To Strike

Defendant’s Evidentiary Objections

            Declaration of Loretta Gruber

No. 1: OVERRULED. Relevant; hearsay exception—admission of party opponent (Evid. Code § 1220); sufficient personal knowledge; permission opinion; sufficient foundation; goes to weight.

No. 2: OVERRULED.  See No. 1 above.

No. 3: OVERRULED.  Relevant; declarant is stating matters within her personal knowledge; goes to weight.

No. 4: OVERRULED.  See above at No. 1: Although the hearsay statements were made by alleged co-conspirator Defendant Brad, a hearsay statement made by a co-conspirator is admissible:

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;

(b) The statement was made prior to or during the time that the party was participating in that conspiracyand

(c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence[1].

Evid. Code, § 1223 (bold emphasis added).

            The Court observes that Plaintiff openly admits to knowingly participating in what appears to be insurance fraud at the request of Defendant Brad to deceive the insurance adjuster into believing living expenses were being incurred in connection with the Sunset Property.

No. 5: OVERRULED. See above at Nos. 1 and 4.

No. 6: OVERRULED. Relevant; not hearsay; personal knowledge; permissible lay opinion; sufficient foundation; goes to weight.

No. 7: OVERRULED. See No. 6 above.

No. 8: OVERRULED. See No. 6 above.

No. 9: OVERRULED. See No. 6 above.

No. 10: OVERRULED. See No. 6 above.  An owner may express an opinion as to the value of real property she owns.  Evid. Code § 813.

No. 11: SUSTAINED as to Brad’s parents’ state of mind—lack of personal knowledge; OVERRULED as to what Defendants told Plaintiff—hearsay exception—admission of party opponent and co-conspirators; relevant.

No. 12: OVERRULED. Relevant; not hearsay; personal knowledge; not inadmissible opinion; sufficient foundation.

No. 13: OVERRULED. Relevant; not hearsay; personal knowledge; not inadmissible opinion; sufficient foundation.

No. 14: OVERRULED. Relevant; not hearsay; personal knowledge; not inadmissible opinion; sufficient foundation.

Analysis:

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.”  Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.  This is a two-step process.  First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.”  CCP § 425.16(b)(1).  Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. CCP § 425.16(b)(3).  The defendant has the burden on the first issue, and the plaintiff on the second.  Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO(2003) 105 Cal.App.4th 913, 919.  In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”   CCP § 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.

The Defendant’s act underlying the cause of action must itself have been in furtherance of the right of petition or free speech. City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.  The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16, subdivision (e) categories: (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest.  CCP § 425.16(e); City of Cotatisupra, 29 Cal.4th at 78; see also Equilon Enterprises, LLCsupra, 29 Cal.4th at 67.

            If such a showing is made, the burden shifts to Plaintiff to show a probability of prevailing on the claim.  CCP § 425.16(b)(1). To establish a probability of prevailing on the merits, the Plaintiff must demonstrate that the Complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.  Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.  In making this assessment, the Court must accept as true the evidence favorable to the plaintiff.  HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.  The plaintiff needs only to establish that his or her claim has minimal merit (Navellier v. Sletten (2002) 29 Cal.4th 82, 89) to avoid being stricken as a SLAPP. Jarrow Formulas, Inc. v. LaMarchesupra, 31 Cal.4th at 738.

“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 omitted.)”  Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.

  1. Re: Whether the Causes of Action Are Subject To Being Stricken Pursuant to CCP § 425.16.

             “As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. (Citation omitted.)”  Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017.  Here, the first and only cause of action is for malicious prosecution with regard to Defendants initiating the Underlying Action, which is defined to be LASC Case No. BC619936.  Complaint, ¶¶ 15, 30-33.  Plaintiff does not base the malicious prosecution cause of action upon the family law case, LASC BC621662.  Complaint, ¶ 11.

            “By definition, a malicious prosecution suit alleges that the defendant committed tort by filing a lawsuit.”  Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 735.  The filing of a lawsuit is an aspect of the First Amendment right of petition.  Id. at 736, fn. 5.  In Jarrow, the court held that a claim for malicious prosecution was subject to SLAPP.  Id. at 741.

The first step of the inquiry is not disputed here. The anti-SLAPP statute defines an “ ‘act in furtherance of a person’s right of petition or free speech’ ” to include “any written or oral statement or writing made before [*215]  a … judicial proceeding … .” (§ 425.16, subd. (e)(1).) The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735 [3 Cal.Rptr.3d 636, 74 P.3d 737] (Jarrow Formulas).) Wilhelmina’s other claims also pertain to the Quinlivan Attorneys’ written and oral statements in the same prior judicial proceedings.

Daniels v. Robbins,(2010) 182 Cal.App.4th 204, 214-15 (bold emphasis added).

The first step of this test is not at issue here.  “[B]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.] Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. [Citations.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734–735 [3 Cal. Rptr. 3d 636, 74 P.3d 737], fn. omitted.) . . . .

Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1446-47 (bold emphasis added).

            Here, all Defendants are alleged to have conspired to file and prosecute the underlying action against Plaintiff, in an effort to allegedly mis-characterize as loans to Plaintiff and Defendant Bradford Gruber during their marriage the hundreds of thousands of dollars which Plaintiff contends were gifts, with the goal of eviscerating the martial estate from which Plaintiff could recover. Complaint, ¶¶ 30, 31.  As such, the malicious prosecution of the Underlying Action is subject to being stricken under CCP § 425.16.

            The burden shifts to Plaintiff to demonstrate a probability of prevailing on this claim.

  1. Re: Whether Plaintiff Has Established That There Is A Probability Of Prevailing On The Claims – CCP ¶ 425.16(b)(1).

            As an initial observation, while this court appreciates references to pop culture, when appropriate (as in this case), it appears that perhaps a better reference rather than to Star Trek, would be to The Bard [Not to be confused with “Brad”]himself, to wit, “Something is rotten in the state of Denmark.” (W. Shakespeare, Hamlet, Act 1, Scene 4).

            Plaintiff has the burden on the second prong of a SLAPP analysis to establish that there is a probability Plaintiff will prevail on the claims.  CCP § 425.16(b)(1); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.

“[A] SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal. Rptr. 2d 397].) “ ‘[A]lthough by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” … , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.’ [Citation.] ‘[T]he court’s responsibility is to accept as true the evidence favorable to the plaintiff … .’ [Citation.] ‘[T]he defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [105 Cal. Rptr. 3d 683].)

Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 908-09.

            The elements of a cause of action for malicious prosecution are as follows:

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal. Rptr. 184, 529 P.2d 608] (Bertero).)

Bertero went on to explain the two reasons why malicious prosecution is actionable: “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Bertero, supra, 13 Cal.3d at pp. 50–51.) And “[t]he judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals ‘… as instruments with which to maliciously injure their fellow men.’” (Id. at p. 51.)

And, of course, the claims of malfeasance are all in the public record. (See Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal. Rptr. 2d 118] [“The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.”].)

Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458.

  1.         Re: Commenced By Or At The Direction of Defendant and Pursued To Legal Termination In Plaintiff’s Favor.

            Defendant Sandra Gruber was a named Plaintiff in Sandra Gruber, et al. v. Bradford Gruger, et al., BC619936, i.e., the Underlying Action, which named Loretta Gruber as a Defendant.  Complaint, ¶ 15 and Exh. A thereto; Def’s Exh.G.  Thus, this moving Defendant commenced the Underlying Action against Loretta Gruber, Plaintiff in this malicious prosecution action.

            On June 9, 2017, a stipulated judgment was entered in the Underlying Action, whereby Sandra Gruber, Kenneth Gruber and Continental Precision Stamping, Inc., stipulated with Defendant Bradford Gruber only that Judgment be entered in favor of Plaintiffs Sandra Gruber, Kenneth Gruber and Continental Precision Stamping, Inc. and against Defendant Bradford Gruber only in the total sum of $380,000.00.  Complaint, ¶ 21; Exh. B thereto; Def’s Exh. H.  That same day, Loretta was dismissed without prejudice from the Underlying Action.  Complaint ¶ 21; Def’s Exh. I.

            “[A] voluntary dismissal is presumed to be a favorable termination on the merits, unless otherwise proved to a jury.”  Daniels v. Robbins (2010) 182 Cal.App.4th 204, 218.

 

“[A] voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action for malicious prosecution. [Citation.] ‘In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action; the same is true of a dismissal for failure to prosecute. [Citations.]’ [Citation.]” (Citation omitted)

See also Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1401.

Generally, a voluntary dismissal is treated as an abandonment of claims: “Regardless, the claims were in essence abandoned, and such abandonment can be favorable termination, as is generally held where a voluntary dismissal is filed. (Citations omitted.)” Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 462.

Although the presumption of a favorable termination can be rebutted (see Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1539), here Defendant Sandra Gruber has not rebutted that presumption.  Defendant only indicates that due to the entry of the stipulated judgment, it was no longer necessary to pursue the claims asserted against Loretta, and thus, she was dismissed.  Declaration of Sandra Gruber, ¶ 28.  Defendant indicates the dismissal was a procedural matter only and did not reflect that the case lacked merit or that she was no liable on the claims asserted in the case.  Sandra Gruber, ¶ 29.  However, her legal conclusions are without evidentiary value. The Court notes that the Grubers only obtained a stipulated judgment against their son, Bradford Gruber, yet they claim that this judgment against him only rendered the case against Loretta Gruber unnecessary.  This is an admission that Loretta did not even need to be named in the lawsuit in the first place and is tantamount to an abandonment of claims and an implicit admission that the claims against Loretta were without merit.  The Court also notes that Sandra’s claim that the expense of litigating the Underlying Lawsuit became too great, and the Grubers health issues were exacerbated by stress (Sandra Decl., ¶ 27)—lacks credibility.  The Grubers thought nothing of suing their own son—who continued to live with them and work for them—so any complaint about the cost and stress of litigation rings utterly hollow.  The Grubers received nothing in exchange for dismissing Loretta—not even a waiver of costs—which weighs in favor of a finding that they abandoned claims that did not need to be asserted against Loretta in the first place.

            As such, the voluntary dismissal of Loretta from the Underlying Action constitutes a favorable termination for purposes of the first element of the malicious prosecution cause of action.  Plaintiff has demonstrated a probability of prevailing on this element.

  1.         Re: Lack of Probable Cause.

            If any of the claims asserted by the Grubers against Loretta in the Underlying Action lacked probable cause, this element is satisfied.

[A] suit for malicious prosecution lies for bringing an action charging multiple grounds of liability when some but not all of those grounds were asserted with malice and without probable cause.

Crowley v. Katleman (1994) 8 Cal.4th 666, 671 (bold emphasis and underlining added).

” ‘The authorities show … that, in order to maintain [a malicious prosecution  [*678]  action], “it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause,coupled with others which are well founded, they are not on that account less injurious, and, therefore, constitute a valid cause of action.” [Citations.]’ ” (45 Cal.2d at p. 497.)

In Albertson, supra, 46 Cal.2d 375, the defendant brought an action against the plaintiff to recover (1) the balance due on a promissory note and (2) title to real property on a theory of fraudulent conveyance. The plaintiff prevailed only on the latter claim, and sued the defendant for maliciously prosecuting that portion of the case. We cited Singleton, supra, 45 Cal.2d at page 497, as holding that “a defendant cannot escape liability for the malicious prosecution of an unjustified charge by joining with it a justified charge,” and we concluded in an alternate holding that malicious prosecution would lie for the claim of fraudulent conveyance despite probable cause for the claim on the promissory note. (Albertson, supra, 46 Cal.2d at p. 385.)

Crowley v. Katleman (1994) 8 Cal.4th 666, 677-78 (bold emphasis and underlining added).

“The question of probable cause is ‘whether, as an objective matter, the prior action was legally tenable or not.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal. Rptr. 3d 638, 139 P.3d 30].)  Probable cause “is ‘“a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.”’ [Citations.]” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 55 [118 Cal. Rptr. 184, 529 P.2d 608].)

“Probable cause is a low threshold designed to protect a litigant’s right to assert arguable legal claims even if the claims are extremely unlikely to succeed. ‘[T]he standard of probable cause to bring a civil suit [is] equivalent to that for determining the frivolousness of an appeal (In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal. Rptr. 508, 646 P.2d 179]), i.e., probable cause exists if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel [Co.], supra, [47 Cal.3d] at p. 886.) This rather lenient standard for bringing a civil action reflects “the important public policy of avoiding the chilling of novel or debatable legal claims.” (Id. at p. 885.) Attorneys and litigants … “ ‘have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win … .’ ” (Ibid., quoting In re Marriage of Flaherty, supra, at p. 650.) Only those actions that “‘any reasonable attorney would agree [are] totally and completely without merit’” may form the basis for a malicious prosecution suit. (Ibid.)’ (Wilson [v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,] 817 [123 Cal. Rptr. 2d 19, 50 P.3d 733].)” (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047–1048 [79 Cal. Rptr. 3d 822].)

The existence of probable cause is determined by an objective test. To make a prima facie case of a lack of probable cause in response to the anti-SLAPP motion, Mendoza must submit substantial evidence showing no reasonable attorney would have thought the defamation action was tenable in light of the facts known to Wichmann and Kolb at the time the suit was filed (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pp. 817, 822, fn. 6; Ross v. Kish (2006) 145 Cal.App.4th 188, 202 [51 Cal. Rptr. 3d 484]), or that Wichmann and Kolb continued pursuing the lawsuit after they had discovered the action lacked probable cause. (Zamos v. Stroud (2004) 32 Cal.4th 958, 966–970 [12 Cal. Rptr. 3d 54, 87 P.3d 802].) “Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit. [Citations.]” (Id. at p. 970.) [*1450]

However, “[w]here there is no dispute as to the facts upon which an attorney acted in filing [or prosecuting] the prior action, the question of whether there was probable cause to institute [or continue prosecuting] that action is purely legal. (Sheldon Appel Co., supra, [47 Cal.3d] at pp. 868, 881; Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 496 [78 Cal. Rptr. 2d 142].) If there is a dispute as to such facts, that dispute must be resolved by the trier of fact before the objective standard can be applied by the court. (Sheldon Appel Co., supra, at p. 881; Downey Venture v. LMI Ins. Co., supra, at p. 496, fn. 25.)” (Ross v. Kish, supra, 145 Cal.App.4th at p. 202.)

Here, the facts regarding probable cause are not in dispute. Thus, we resolve the issue of probable cause as a matter of law. This does not conflict with our holding in Kreeger, relied upon by the trial court. There, we stated the burden on a malicious prosecution plaintiff opposing an anti-SLAPP motion “‘is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.’ [Citation.] The plaintiff need only establish the challenged cause of action has ‘minimal merit.’ [Citations.]” (Kreeger, supra, 141 Cal.App.4th at p. 832.) However, we also stated that the plaintiffs in that malicious prosecution action would meet their “minimal merit” burden on their probable cause element by establishing that the defendants did not have probable cause to bring the underlying action. (Id. at pp. 833–834.)

Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1449-50 (bold emphasis and underlining added).

            In this regard, the problem for moving Defendant Sandra in asserting the sixth cause of action for fraud against Loretta in the Underlying Action is that Sandra and her husband, co-Defendant Kenneth Gruber, lent their son money while he was married to Loretta.  While Defendant Sandra makes vague, conclusory statements in her Declaration that she relied upon the representations of “Defendants’ in extending the loans, she fails to specify any specific written, or even, oral promises made by Loretta that she would repay the loans when financially able to do so, before Sandra and Kenneth extended the loans to their son, Bradford, and his wife, Loretta, which was a substantial cause in lending money to their son.

There is a dispute of fact as to whether Sandra and Kenneth relied upon Loretta’s representations (if any) to them.  A jury could very well find that, in making the loans to their son—who at the time worked for their company (Sandra Decl., ¶ 13)—Sandra and Kenneth did not substantially rely upon any representation by Loretta to repay the loans, but rather, they relied upon the fact that their son needed financial assistance.  At the very least, Plaintiff has demonstrated a probability of prevailing on this element because a jury would likely find that, in lending their son and his wife money, etc., the Grubers relied upon the fact that their son needed financial assistance, rather than upon his wife’s representations that the Grubers’ would be repaid.  In this regard, if the jury makes such a finding, objectively, the Court would likely then conclude[2] there was no probable cause to assert a fraud claim against their son’s wife, Loretta Gruber, Plaintiff herein.

Plaintiff’s claims fail for an additional reason: she has not shown that she actually relied on the alleged misrepresentations, which is an essential element of both claims of deceit. (Citation omitted.) “Actual reliance occurs when a misrepresentation is ‘“an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,”’ and when, absent such representation, ‘“he would not, in all reasonable probability, have entered into the contract or other transaction.”’ [Citations.] ‘It is not … necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’” (Citation omitted.)

Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.

Causation for fraud is properly determined using the substantial factor test. (Strebel v. Brenlar Investments, Inc. (2006) 135 Cal.App.4th 740, 752 [37 Cal. Rptr. 3d 699].) It is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. (Ibid.) “Causation requires proof that the defendant’s conduct was a ‘“substantial factor”’ in bringing about the harm to the plaintiff.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal. Rptr. 2d 658].)

Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1091-92.

In Greene, however, we held that when the evidence concerning the question of probable cause is in conflict, thefact finder must resolve the issue. (Id. at p. 465.) Because “there was a conflict of the evidence on whether Casasola honestly believed that plaintiff had threatened to blow up the Bank, or whether she deliberately lied,” we reversed the judgment in favor of defendants. (Id. at pp. 465, 467.) If Casasola lied, we explained, she did not have probable cause. (Id. at p. 465.)

Greene v. Bank of America (2015) 236 Cal.App.4th 922, 932 (bold emphasis and underlining added).

” Resolution of the question of the existence of a triable issue of fact on the question of probable cause requires the isolation of the factual and legal elements of probable cause itself. The trier of fact must resolve any conflict in the evidentiary underpinning of the facts of probable cause. Once that conflict has been resolved, the question of whether the facts as they are found to exist constitute probable cause for bringing the former action is a question of law to be resolved by the judge. [Citations.]” (Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 682-683 [120 Cal.Rptr. 291].) Here, all of the relevant facts concerning the existence of probable cause are undisputed. There are no material questions about what plaintiff and defendant did and said during the course of the processing of plaintiff’s claim and the resultant notification of authorities by defendant. Thus, the trial court was entitled to resolve the question of probable cause, i.e., both the subjective and objective elements. This was an issue of law to be determined by the court. (Williams v. Coombs, supra, 179 Cal.App.3d at p. 636.)

Cummings v. Fire Ins. Exch. (1988) 202 Cal.App.3d 1407, 1419-20 (bold emphasis added).

He observes that “[resolution] of the question of the existence of a triable issue of fact on the question of probable cause requires the isolation of the factual and legal elements of probable cause itself. The trier of fact must resolve any conflict in the evidentiary underpinning of the facts of probable cause. Once that conflict has been resolved, the question of whether the facts as they are found to exist constitute probable cause for bringing beginning the former action is a question of law to be resolved by the judge. [Citations.]” (Id., at pp. 682-683, italics added.) Similarly, as noted in Davis v. Local Union No. 11, Internat. etc. of Elec. Workers, 16 Cal.App.3d 686 [94 Cal.Rptr. 562], “[at] the outset, it is not quite correct for the Union [petitioner] to assert that . . . probable cause is not a jury question but one for the court to decide as a matter of law . . . but . . . the question must be determined by the court (as a matter of law) only when there is no dispute concerning the existence of the facts relied on to establish this particular element of the tort . . . .” (Id., at p. 692; italics added.)

Applying the foregoing to the case before us, what remain as unresolved issues of fact are whether petitioner’s belief that the statute was about to run was reasonable and whether the investigation of the facts and law leading to that conclusion were also reasonable. While probable cause is finally an issue of law, the question of whether given conduct is reasonable is always one of fact. Fairly read, the filings for and against petitioner’s motion did not contest any extrinsic fact; there was no dispute over what actually happened in terms of who said and who did what. The dispute arose over what interpretation was to be placed on what happened. With this the posture of the matter, these undisputed extrinsic facts gave rise to the possibility of conflicting inferences, i.e., reasonable versus unreasonable. As such the case could not properly have been disposed of by means of summary judgment. (Code Civ. Proc., § 437c; Bispo v. Burton, 82 Cal.App.3d 824, 832 [147 Cal.Rptr. 442].) Accordingly, the trial court correctly denied petitioner’s motion as to the first count.

Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 189-90 (bold emphasis added).

            As such, Plaintiff has demonstrated a probability of prevailing on this element.

  1.         Re: Malice

“The ‘malice’ element … relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and proveactual ill will or some improper ulterior motive. [Citation.]” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal. Rptr. 2d 142] (Downey Venture).)

The lack of probable cause is one factor in determining the presence of malice, but alone it is insufficient. (HMS Capital, supra, 118 Cal.App.4th at p. 218.) “Merely because the prior action lacked legal tenability, as measured objectively (i.e., by the standard of whether any reasonable attorney would have thought the claim tenable [citation]), without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind. In other words, the presence of malice must be established by other, additional evidence.” (Downey Venture, supra, 66 Cal.App.4th at p. 498, fn. omitted.)

Such other evidence “is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.” (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157 [85 Cal. Rptr. 2d 726].) “Suits with the hallmark of an improper purpose” include “those in which: ‘ “… (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.” ’ [Citation.]” (Ibid.)

Because direct evidence of malice is rarely available, “malice is usually proven by circumstantial evidence and inferences drawn from the evidence.” (HMS Capital, supra, 118 Cal.App.4th at p. 218.)

Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1543 (bold emphasis and underlining added).

The element of malice in a malicious prosecution claim—in contrast to the probable cause element decided by the court under an objective standard—is one that “relates to the subjective intent or purpose with which the defendant acted in initiating the prior action, and … the defendant’s motivation is a question of fact to be determined by the jury. [Citations.]” (Sheldon Appel, supra, 47 Cal.3d at p. 874.) Factors relevant to malice include the defendant’s subjective belief regarding the validity of the claim, and (in the case of malicious prosecution against the attorney) the extent of any research or investigation by the attorney prosecuting the prior suit. (Id. at p. 883.) Malice may not only consist of ill will or hostility toward the malicious prosecution plaintiff, but may also result where the prior suit was “instituted primarily for an improper purpose.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 383 [295 P.2d 405]; see also Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 499 [78 Cal. Rptr. 2d 142] [malice in malicious prosecution claim consists of suit brought “for the intentionally wrongful purpose of injuring another person”].) Typically—since it is rare that there will be a “smoking gun” admission of improper motive—malice is established “by circumstantial evidence and inferences drawn from the evidence.” (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th 204, 218.)Malice cannot be established simply by a showing of the absence of probable cause, although the fact that the prior suit was objectively untenable is a factor that may be considered on the issue of malice. (Ibid.)

Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 675 (bold emphasis added).

The “malice” element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action, and past cases establish that the defendant’s motivation is a question of fact to be determined by the jury. (See, e.g., Runo v. Williams (1912) 162 Cal. 444, 450 [122 P. 1082]; see generally Rest.2d Torts, § 681B, subd. (2)(b).)

Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874 (bold emphasis added).

            In the instant case, it was not until Loretta filed for divorce against Brad on June 2, 2015 (LASC Case No. BD621662) that the Grubers filed the Underlying Action in May 10, 2016.  Complaint, ¶¶ 11; Exh. A thereto.  A jury could certainly find that the Grubers filed their lawsuit against Loretta out of subjective hostility or ill will after she filed for divorce from Brad.  Additionally, the jury could reasonably find, based upon the evidence presented to date in this case, that the true motive of the Grubers was to minimalize the community property’s assets by wrongfully claiming community debts, and that this was done with an evil motive or in a wanton and reckless manner to essentially cheat Plaintiff out of her rightful share of her the community’s assets from the sale of the community’s residence.[3]  In this regard, Plaintiff has demonstrated a probability of prevailing on this element.

  1.         Re: Damages

“Damages in malicious prosecution actions are similar to those in defamation. Therefore, damage to one’s reputation can bepresumed from a charge, such as that in the instant case that a person committed the crime of theft.”  Allard v. Church of Scientology(1976) 58 Cal.App.3d 439, 450.“A plaintiff who successfully asserts a malicious prosecution claim can obtain reasonable attorney fees incurred defending against the prior action, and may also recover compensation for injury to reputation or impairment of social and business standing in the community. (Bertero, supra, 13 Cal.3d at pp. 59–64.)”  Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1412.

            Here, Plaintiff has a probability of prevailing on this element of damages to recover for attorney’s fees she incurred in defending the Underlying Action, as well as injury to her reputation for being accused of committing fraud.

Conclusion

            Because Plaintiff has demonstrated a probability of prevailing on the malicious prosecution cause of action, Defendant Sandra Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendant Kenneth Gruber’s Anti-SLAPP Special Motion To Strike

            Defendant Kenneth Gruber—father of Bradford Gruber—was also named as a Plaintiff in the Underlying Action and asserted the sixth cause of action for fraud against Loretta Gruber in the Complaint.  Accordingly, the same analysis which applies to Sandra Gruber’s SLAPP motion also applies to Kenneth Gruber’s SLAPP motion.

            Defendant Kenneth Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendant Continental Precision Stamping, Inc.’s Anti-SLAPP Special Motion To Strike

            Continental Precision Stamping, Inc. (“CPS”) was also named as a Plaintiff in the Underlying Action.  It asserted a seventh cause of action for fraud against Loretta Gruber in the Complaint as to the loan of monies totaling $341,0798.80 beginning in 2008.  As such, the malicious prosecution cause of action against it is subject to being stricken pursuant to CCP § 425.16.

            The Grubers’ admit that they own and operate CPS.  See Declaration of Sandra Gruber, ¶ 12; Declaration of Kenneth Gruber, ¶ 7.  Sandra also testified at her August 31, 2017 deposition in the family court action that only she and her husband own the company with an unidentified person with a few shares.  Pltfs’ Exh. E, Page 24:15-25.  As to favorable termination and lack of probable cause re: the fraud cause of action, the Court incorporates by reference its discussion as to Defendant Sandra Gruber’s SLAPP motion.  The lack of reliance by CPS for purposes of a fraud claim against Loretta in the Underlying Action is demonstrated by the fact that all Promissory Notes were signed by Bradford Gruber only as Borrower, and recited “I, Bradford Gruber, agree to pay the sum of. . . .”  Seee.g., Sandra Decl., ¶ 14; Kenneth Decl., ¶ 9; Def’s Appendix, Tabs 1 and 2 and Promissory Notes attached thereto.  Because Sandra and Kenneth Gruber owned and operated CPS, the same lack of reliance upon Loretta’s promise to pay presents itself as a question for the jury.  See discussion above re: Sandra’s SLAPP motion.

            Moreover, as Defendants Sandra and Kenneth Gruber admit they owned and operated CPS, a jury may find that their malice toward Loretta, as discussed above re: Defendant Sandra Gruber’s SLAPP motion, may be imputed to CPS in bringing the fraud cause of action against Loretta.

            As such, Defendant Continental Precision Stamping, Inc. anti-SLAPP special motion to strike is DENIED.

Defendant Bradford Gruber’s Anti-SLAPP Special Motion To Strike

Request For Judicial Notice

            Defendant requests that the Court take judicial notice of the following: (1) On June 2, 2015, Plaintiff filed for divorce from Defendant in Loretta Jean Walsh Gruger v. Bradford Alexander Gruber, LASC BD612662, and the court records in that action; (2) the court records in Sandra Gruber, et al. v. Bradford Gruber, et al., BC61993; and (3) the court records in this action.  Requests Nos. 1 – 3 is GRANTED per Evid. Code § 452(d)(court records).

Analysis

            Defendant Bradford Gruber points out that he was named as a Defendant in the Underlying Action, and thus, he cannot be held liable for filing it against Loretta.  The catch for Defendant Bradford, in that instance, is that Defendant cannot bring an anti-SLAPP special motion to strike, as he would not have engaged in any protected activity set forth in CCP § 425.16(e) which is subject to being stricken.

            The Court notes that although Bradford attempts to characterize this malicious prosecution action as arising from a family court action, this is not what Plaintiff alleges in her Complaint at ¶¶ 30 –  33.  As discussed above re: Sandra’s SLAPP motion, the malicious prosecution cause of action arises out of the Underlying Action—a civil action, not a family court action.

            The fact that there was a parallel family court action proceeding does not render this a claim arising out of a family court action.

While Bidna’s broad language may have suggested that no malicious prosecution cause of action could be based on any action that “originate[d] in family law proceedings,” we decline to extend Bidna’s “absolute bar” to otherwise ordinary civil pleadings alleging ordinary civil causes of action that, for whatever reason, “originate in family law proceedings.” . . .

Since none of Bidna’s reasons for its absolute bar apply to ordinary civil actions that “originate in family law proceedings,” we conclude that it would be improper to apply its absolute bar on malicious prosecution actions to ordinary civil actions, such as this one, that originate in a family law proceeding. The superior court’s ruling cannot be upheld on this basis.

Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1098-99.

            However, Plaintiff alleges at ¶ 31 of the Complaint that Defendant Bradford conspired with the above co-Defendants in initiating the Underlying Action which, as discussed above, is protected activity subject to being stricken under CCP § 425.16(e).   Where the alleged conspiracy relates to activity that comes within the protection of the SLAPP statute, the co-conspirator is entitled to the protection of that statute.  Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1548-49 (bold emphasis and underlining added).

            Accordingly, the malicious prosecution action asserted against Defendant Bradford is subject to being stricken pursuant to CCP § 415.16(e).

            Here, Plaintiff has demonstrated a probability of prevailing on the claim that Defendant Bradford conspired with his parents to file the Underlying Action against Loretta to eviscerate the marital estate by characterizing thousands of dollars in gifts as loans. Complaint, ¶ 31.  Bradford Gruber testified in the Family Law action, BC621662 that his parents continue to lend him money despite the fact that they are also suing him for repayment (in the Underlying Action).   Pltf’s Exh. D (May 8, 20176 deposition of Bradford Gruber), Page 116:21-25.  Defendant’s mother, Sandra Gruber, testifies at her August 31, 2017 deposition that her son, Bradford Gruber, was living with Sandra and Kenneth—rent free—while their lawsuit against him was pending in the Underlying Action(“[S]ince he moved . . . out of Roscomare”)[4].  Pltf’s Exh. E (August 31, 2017 deposition of Sandra Gruber), Page 23:11-24:7.

            A jury could (and probably will) find that true adversaries in litigation do not show such a close relationship and that Sandra and Kenneth had parental affection for Bradford even though they named him as a Defendant along with Loretta, perhaps to give the appearance of legitimacy.  Such circumstantial evidence supports the inference of a conspiracy between the Gruber parents and their son Bradford, vis-à-vis the Underlying Litigation:

It is a legal commonplace that the existence of a conspiracy may be inferred from circumstances, and that the conspiracy need not be the result of an express agreement but may rest upon tacit assent and acquiescence. (Chicago Title Ins. Co. v. Great Western Financial Corp., 69 Cal.2d 305, 316 [70 Cal.Rptr. 849, 444 P.2d 481].)

The essentials to the existence of a conspiracy are defined as follows: concert of action between the conspirators to accomplish the purpose of the conspiracy, the taking of illegal actions in furtherance of a common scheme or design to achieve the unlawful purpose of the conspiracy, and knowledge on the part of the alleged conspirators of the conspiracy and its unlawful purpose. (Clark v. Lesher, 106 Cal.App.2d 403, 409 [235 P.2d 71].)

Holder v. Home Sav. & Loan Asso. (1968) 267 Cal.App.2d 91, 108 (bold emphasis and underlining added).

Therefore a plaintiff is entitled to damages from those defendants who concurred in the tortious scheme with knowledge of its unlawful purpose.  (Black v. Sullivan, supra, 48 Cal. App. 3d at p. 566.) Furthermore, the requisite concurrence and knowledge “‘”may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.”‘” (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316 [70 Cal. Rptr. 849, 444 P.2d 481].) Tacit consent as well as express approval will suffice to hold a person liable as a coconspirator. (Holder v. Home Sav. & Loan Assn. (1968) 267 Cal. App. 2d 91, 108 [72 Cal. Rptr. 704].)

Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784-85 (bold emphasis and underlining added).

            In this regard, Bradford would be liable as a co-conspirator for the malicious prosecution effectuated by his parents, Sandra and Kenneth, in the Underlying Action. The Court hereby incorporates by reference its discussion as to why Sandra and Kenneth Gruber’s SLAPP motions are denied.  Those same reasons apply to Bradford as to his conspiracy liability for malicious prosecution.

            “By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. (Ibid.) In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.  “[T]he major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity. [Citations.]” (Citations omitted.)”  Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 39, 44 (bold emphasis and underlining added).  “[W]henever several persons are sued as conspirators and the evidence supports a conclusion that a conspiracy existed, each member may be held responsible as a joint tortfeasor regardless of whether or not he directly participated in the act (Citations omitted).”  Toney v. State of California (1976) 54 Cal. App. 3d 779, 788 (bold emphasis and underlining added).   “[P]rinciples of comparative fault and apportionment based on comparative fault are inapplicable in the context where all tortfeasors act as part of civil conspiracy to commit the same intentional tort. Instead in this circumstance each coconspirator is equally liable for each coconspirator’s share of the damages caused by the conspiracy.”  Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1145.

            “It is the settled rule that ‘to render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception; every one who enters into such a common design is in law a party to every act previously or subsequently done by any of the others in pursuance of it.’ (Citations omitted.)”  De Vries v. Brumback (1960) 53 Cal.2d 643, 648.

Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 [157 Cal.Rptr. 392, 598 P.2d 45].) By participation in a civil conspiracy,a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. (Ibid.) In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.

Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11 (bold emphasis and underlining added).

            Bradford’s argument that the litigation privilege applies to bar Plaintiff’s malicious prosecution action against him is without merit.

The litigation privilege established by section 47, subdivision (b) applies to any communication (1) made in 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. (Silberg, supra, 50 Cal.3d at p. 212.) Our Supreme Court has described the privilege as “absolute in nature.” (Id. at p. 215.) It applies to all torts except malicious prosecution. (Id.at pp. 215–216; Rubin v. Green (1993) 4 Cal.4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044].)

L.G. v. M.B. (2018) 25 Cal.App.5th 211, 219 (bold emphasis added).

            Accordingly, Defendant Bradford Gruber’s anti-SLAPP special motion to strike is DENIED.

Defendants Irwin B. Feinberg and Feinberg, Mindel, Brandt & Klein, LLP’s Anti-SLAPP Special Motion To Strike

Defendants’ Evidentiary Objections

 

            Declaration of Loretta Gruber

No. 1. : OVERRULED.  Although the hearsay statements were made by alleged co-conspirator Defendant Brad, a hearsay statement made by a co-conspirator is admissible.  Evid. Code § 1223.

No. 2: OVERRULED.  See No. 1 above.

No. 3: OVERRULED.  Declarant knowingly participated in what appears to be insurance fraud at Brad’s request (as discussed above); this is not speculation.

No. 4: OVERRULED.  See No. 3 above.

No. 5: OVERRULED. Permissible lay opinion.

No. 6: SUSTAINED. Lack of foundation.

No. 7: OVERRULED. Permissible lay opinion.

No. 8: OVERRULED.  Although the hearsay statements were made by alleged co-conspirator Defendant Brad, a hearsay statement made by a co-conspirator is admissible.  Evid. Code § 1223.

No. 9: OVERRULED. See No. 8 above.

            Plaintiff’s Exhibits

No. 10: OVERRULED.  Defendants have not demonstrated that every statement in the hearing except is being offered for the truth of the matter asserted therein; Defendant did not specify particular statements to which Defendants object.

No. 11: OVERRULED.  See above at No. 10.

No. 12: OVERRULED.  See above at No. 10.

No. 13: OVERRULED.  See above at No. 10.

Analysis

            An attorney has standing to bring a SLAPP motion where he or she is named as a defendant in a lawsuit based upon a written or oral statement made on behalf of a client in a judicial proceeding or in connection with an issue under review by a court. Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; White v. Lieberman (2002) 103 Cal.App.4th 210, 221.

            Defendants Irwin Feinberg and Feinberg Mindel Brandt & Klein, LLP (“FMBK”) acted as counsel for Sandra, Kenneth and Continental.  Complaint, ¶ 11.  The Complaint in the underlying action was prepared by FMBK at the direction of Feinberg. Complaint, ¶ 15 and Exh. A thereto.

            For the reasons discussed above, the malicious prosecution action asserted against Feinberg and FMBK is subject to being stricken pursuant to CCP § 425.16.

            As to the element of favorable termination the Court hereby incorporates its reference above as to why this element is satisfied.

            As to the element of probable cause, Defendants cite to the Court’s ruling overruling Loretta’s demurrer in the Underlying Action, BC619936. In the Underlying Action, BC619936, the demurrer of Loretta Gruber—as Defendant in that action filed against her and Bradford Gruber by Sandra Gruber, Kenneth Gruber and Continental Precisions Stamping—was overruled in its entirety on August 5, 2016.  Def’s Exhs. 78 and 79.  However, as to the cause of action for fraud, Loretta’s demurrer only argued that fraud was not plead with requisite specificity as to each defendant as opposed to lumping them all in as “defendants.”  Def’s Exh. 78.  The Court found that the reference to each Defendant was sufficient and the dates, terms and other details of each transaction were sufficiently pled.  Def’s Exh. 79.  In this regard, in ruling upon Loretta’s demurrer in the Underlying Action, the Court did not make any determination as to whether Sandra and Kenneth relied upon misrepresentations made by Loretta in extending the loans to their son, who was married to Loretta at the time, because the issue was not presented to the Court.

            For the reasons discussed above re: Sandra’s SLAPP motion, a jury could very well find that, in making the loans to their son—who at the time worked for their company (Sandra Decl., ¶ 13)—Sandra and Kenneth did not substantially rely upon any representation by Loretta to repay the loans, but rather, they relied upon the fact that their son needed financial assistance.  At the very least, Plaintiff has demonstrated a probability of prevailing on this element because a jury may likely find that, in lending their son and his wife money, etc., the Grubers relied upon the fact that their son needed financial assistance, rather than upon his wife’s representations that the Grubers’ would be repaid.  In this regard, the Court would then find, as an objective matter, there would be no probable cause to assert a fraud claim against their son’s wife, Loretta Gruber, Plaintiff herein.  In turn, with respect to these attorney defendants, objectively, the attorneys could assess the situation—parents lending their son money—to ascertain there was a lack of probable cause to bring a fraud cause of action against their son’s wife in connection with the loans they made to their son in financial need.  This would be corroborated by the fact, discussed above, that the Feinberg/FMBK clients were lending their son money and letting their son live rent-free at the time they filed a complaint against him and his wife for fraud. In such an instance, no reasonable attorney would have thought the claim tenable in light of the facts known to counsel at the time the suit was filed:

Probable cause is a low threshold designed to protect a litigant’s right to assert arguable legal claims even if the claims are extremely unlikely to succeed. ‘[T]he standard of probable cause to bring a civil suit [is] equivalent to that for determining the frivolousness of an appeal (In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal. Rptr. 508, 646 P.2d 179]), i.e., probable cause exists if “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel [Co.], supra, [47 Cal.3d] at p. 886.) This rather lenient standard for bringing a civil action reflects “the important public policy of avoiding the chilling of novel or debatable legal claims.” (Id. at p. 885.) Attorneys and litigants … “ ‘have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win … .’ ” (Ibid., quoting In re Marriage of Flaherty, supra, at p. 650.) Only those actions that “‘any reasonable attorney would agree [are] totally and completely without merit’” may form the basis for a malicious prosecution suit. (Ibid.)’ (Wilson [v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,] 817 [123 Cal. Rptr. 2d 19, 50 P.3d 733].)” (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047–1048 [79 Cal. Rptr. 3d 822].)

The existence of probable cause is determined by an objective test. To make a prima facie case of a lack of probable cause in response to the anti-SLAPP motion, Mendoza must submit substantial evidence showing no reasonable attorney would have thought the defamation action was tenable in light of the facts known to Wichmann and Kolb at the time the suit was filed (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at pp. 817, 822, fn. 6; Ross v. Kish (2006) 145 Cal.App.4th 188, 202 [51 Cal. Rptr. 3d 484]), or that Wichmann and Kolb continued pursuing the lawsuit after they had discovered the action lacked probable cause. (Zamos v. Stroud (2004) 32 Cal.4th 958, 966–970 [12 Cal. Rptr. 3d 54, 87 P.3d 802].) “Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit. [Citations.]” (Id. at p. 970.)

Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1449 (bold emphasis and underlining added).

            Defendants’ argument that the agent’s immunity rule shields them from liability for conspiring with his client is not persuasive. “[A]ttorneys may be liable for participation in tortious acts with their clients, and such liability may rest on a conspiracy.”Aronow v. LaCroix (1990) 219 Cal.App.3d 1039, 1047.

            As to the element of malice, however, the client’s malice cannot be imputed to the attorney.  Daniels v. Robbins (2010) 182 Cal.App.4th 204, 221-22 (bold emphasis added); Rogers v. Peinado (2000) 85 Cal.App.4th 1, 7.

The malice element of malicious prosecution goes to the defendants’ subjective intent for instituting the prior case. (Soukup, supra, 39 Cal.4th at p. 292.) Malice does not require that the defendants harbor actual ill will toward the plaintiff in the malicious prosecution case, and liability attaches to attitudes that range “ ‘from open hostility to indifference. [Citations.]’ ” (Ibid.) Malice may be inferred from circumstantial evidence, such as the defendants’ lack of probable cause, supplemented with proof that the prior case was instituted largely for an improper purpose. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225 [105 Cal. Rptr. 3d 683] (Daniels).) This additional proof may consist of evidence that the prior case was knowingly brought without probable cause or was brought to force a settlement unrelated to its merits. (Id. at pp. 226, 228.) A defendant attorney’s investigation and research also may be relevant to whether the attorney acted with malice. (Sheldon Appel, supra, 47 Cal.3d at p. 883.)

Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113-14 (bold emphasis and underlining added).

The lack of probable cause is one factor in determining the presence of malice, but alone it is insufficient. (HMS Capital, supra, 118 Cal.App.4th at p. 218.) “Merely because the prior action lacked legal tenability, as measured objectively (i.e., by the standard of whether any reasonable attorney would have thought the claim tenable [citation]), without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind. In other words, the presence of malice must be established by other, additional evidence.” (Downey Venture, supra, 66 Cal.App.4th at p. 498, fn. omitted.)

Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1543 (bold emphasis and underlining added).

            In this regard, Defendants’ argument that this action should be dismissed on due process grounds because the attorney defendants cannot defend themselves without fully disclosing confidential attorney-client privileged communications is persuasive.  In order to demonstrate that the Feinberg/FMBK Defendants acted with malice by filing the Underlying Action largely for a subjectively improper purpose, i.e. to circumvent community property laws and deprive Loretta of a portion of her share of community property assets, the central piece of evidence is whether the clients—Sandra and Kenneth Gruber—asked the Feinberg/FMBK Defendants to devise a way to achieve this improper purpose through litigation against Loretta.  This falls squarely within the attorney-client privilege.

“The [attorney-client] privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Gordon v. Superior Court (1997) 55 Cal. App. 4th 1546, 1557 [65 Cal. Rptr. 2d 53]; see also Shannon v. Superior Court (1990) 217 Cal. App. 3d 986, 995 [266 Cal. Rptr. 242].)  “In California the privilege has been held to encompass not only oral or written statements, but additionally actions, signs, or other means of communicating information. (Ex Parte McDonough (1915) 170 Cal. 230, 234 [149 P. 566]; Estate of Kime (1983) 144 Cal. App. 3d 246, 255 [193 Cal. Rptr. 718].) Furthermore, the privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. In this regard, it is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter’s intended strategy. In re Jordan (1974) 12 Cal. 3d 575, 580 [116 Cal. Rptr. 371, 526 P.2d 523].) While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as ‘sacred,’ it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions.” (Mitchell v. Superior Court, supra, 37 Cal. 3d at p. 600.)

In sum, there can be no balancing of the attorney-client privilege against the right to prosecute a lawsuit to redress a legal wrong. Consequently, as  General Dynamics Corp. v. Superior Court (1994) 7 Cal. 4th 1164 [32 Cal. Rptr. 2d 1, 876 P.2d 487] (hereafter General Dynamics) teaches, unless a statutory provision removes the protection afforded by the attorney-client privilege to confidential communications between attorney and client, an attorney plaintiff may not prosecute a lawsuit if in doing so client confidences would be disclosed. (General Dynamics, supra, at p. 1190.)

Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 457-58 (bold emphasis added).

            Here, the Feinberg/FMBK Defendants could not defend themselves against malice without disclosing the confidential communications with their clients regarding the objectives of the Underlying Litigation.

Before dismissing a case “on the ground that a defendant attorney’s due process right to present a defense would be violated by the defendant’s inability to disclose a client’s confidential information,” a court must consider “at least four factors”: The evidence at issue must be the client’s confidential information, which the client insists on keeping confidential; the evidence must be “highly material to the defendants’ defenses”; the trial court must determine whether it could “effectively use ‘ad hoc measures from [its] equitable arsenal,’ including techniques such as ‘sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings,’ so as to permit the action to proceed”; and the court “should consider whether it would be ‘fundamentally unfair’ to allow the action to proceed.” (Dietz, supra, 177 Cal.App.4th at pp. 792–793.)

People ex rel. Herrera v. Stender (2012) 212 Cal.App.4th 614, 646-47.

            Here, as to the issue of malice relative to the fraud causes of action asserted against Loretta in the Underlying Action, the highly material evidence essential to the Feinberg/FMBK Defendants is the objectives of litigation their clients, the Grubers (and CPS) indicated they wanted to achieve through the Underlying Action, whether it be innocuous or insidious (to diminish Loretta’s share of community property).  Such litigation objectives are obviously confidential communications between the Gruber (and CPS) clients andthe Feinberg/FMBK attorney Defendants; there is not indication that the clients will waive the attorney-client privilege as to communications regarding their litigation objectives (although if they have nothing to hide, waiving the communication may end up disproving malice on the part of the all Gruber Defendants and CPS).  There does not appear to be any ad hoc measures such as sealing and protective orders, limited admissibility of evidence, orders restricting use of testimony and in camera proceedings[5] to avoid the disclosure of attorney-client privileged communications.  It would also appear to be fundamentally unfair to allow the malicious prosecution action to proceed against the Feinberg/FMBK Defendants because evidence of absence of malice essential to Defendants’ defense lies squarely within the attorney-client privilege.

            As such, Plaintiff cannot demonstrate a reasonable probability of prevailing on the element of malice.

            Accordingly, Defendants Irwin Feinberg and Feinberg Mindel Brandt & Klein, LLP’s anti-SLAPP special motion to strike is GRANTED.

Defendant Bradford Gruber’s Notice of Joinder

            A “Notice of Joinder” is not a proper motion unless it contains points and authorities. See Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 [“the trial court treated [defendant’s] notice of joinder as a motion”].)  Because no points and authorities were submitted supporting the joinder, the Notice of Joinder is DENIED.

Defendants Irwin B. Feinberg and Feinberg, Mindel, Brandt & Klein, LLP’s Notice of Joinder

            A “Notice of Joinder” is not a proper motion unless it contains points and authorities. See Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 [“the trial court treated [defendant’s] notice of joinder as a motion”].)  Because no points and authorities were submitted supporting the joinder, the Notice of Joinder is DENIED.

            Defendants to give notice, unless waived.

IT IS SO ORDERED.

Dated:   October 31, 2018                              ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] The Court hereby exercises such discretion as to the order of proof re: existence of a conspiracy between co-Defendants.

[2]     While, as we have just discussed, the probable cause determination has always been considered a question of law for the court, the cases have also made clear that if the facts upon which the defendant acted in bringing the prior action “are controverted, they must be passed upon by the jury before the court can determine the issue of probable cause . . . . ‘What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury.'” ( Ball v. Rawles, supra, 93 Cal. 222, 227. See Rest.2d Torts, § 681B, subd. (2)(a).)

Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874-882. 877.

[3] For example, see the comments and/or findings of law and facts from both of the trial judges in the underlying family law case.  Plaintiff’s Consolidated Opposition Brief, pp. 6-8.

[4] The Underlying Action was filed on May 10, 2016 and dismissed on June 9, 2017.  See Complaint, Exhs. A and B.

[5]   Consequently, “it is neither customary nor necessary to review the contents of the communication in order to determine whether the [attorney-client] privilege applies … .” (Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480 [257 Cal. Rptr. 383] (Cornish).) A court’s determination of whether the privilege applies “does not involve the nature of the communications or the effect of disclosure but rather the existence of the relationship at the time the communication was made, the intent of the client and whether the communication emanates from the client.” (Ibid.; see Costco, supra, 47 Cal.4th at p. 739 [“because the privilege protects atransmission irrespective of its content, there should be no need to examine the content in order to rule on a claim of privilege”].)

Consistent with these principles, California courts have recognized “we must approach th[e] issue [of whether documents are protected by the attorney-client privilege] without inspection of the documents themselves.” (Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 588 [147 Cal. Rptr. 915] (Cooke); see State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640 [62 Cal. Rptr. 2d 834] (State Farm) [“We will not take into consideration the actual privileged information in aid of our determination”].) Similarly, the Legislature has prohibited court-ordered disclosure of disputed documents for in camera review to resolve an attorney-client privilege claim. (§ 915, subd. (a); see Costco, supra, 47 Cal.4th at pp. 736–740.)

DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 666.

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