Bowen v. Lin

• Decision Date: 06 June 2022
• Docket Number: 2d Civil No. B312831
• Citation: 80 Cal.App.5th 155,295 Cal.Rptr.3d 317
• Parties: Ray B. BOWEN, Jr., Cross-complainant and Appellant, v. Victor LIN et al., Cross-defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 155

295 Cal.Rptr.3d 317

Ray B. BOWEN, Jr., Cross-complainant and Appellant,

v.Victor LIN et al., Cross-defendants and Appellants.

2d Civil No. B312831

Court of Appeal, Second District, Division 6, California.

Filed June 6, 2022

Hua Gallai & Gonzalez, Nicholas T. Hua, Giacomo Gallai, Beverly Hills, and Steven C. Gonzalez for Cross-defendants and Appellants.

James A. Howard and Ray B. Bowen, Jr., Tarzana, for Cross-complainant and Appellant.

TANGEMAN, J.

Victor and Yvonne¹ Lin and their adult children Calvin and Gail moved to strike a cross-complaint filed by Ray B. Bowen, Jr., as a strategic lawsuit against public participation (SLAPP). The trial court granted Gail's motion to strike the causes of action against her, but denied the other motions. In their appeal, Victor, Yvonne, and Calvin contend the court should have stricken the causes against them because they arose from acts in furtherance of the right to petition and because Bowen failed to show a probability of prevailing on the merits of those causes. In his cross-appeal, Bowen contends the court should not have stricken his causes against Gail because they did not arise from acts protected by the anti-SLAPP statute and/or because he showed a probability of prevailing. Bowen also contends the court erred when it declined to rule on his evidentiary objections. We affirm the portion of the order granting Gail's motion, vacate the portion denying Victor, Yvonne, and Calvin's motions, and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Victor and Calvin practiced medicine out of an Oxnard office owned by Victor and Yvonne. The office sustained $25,000 in damages when a pipe in an adjacent office started leaking. The Lins hired Bowen as their attorney to demand that the owner of the adjacent office, Cynthia Lau, pay to rectify the water damage.

After Lau rejected the settlement demands, Bowen recommended that the Lins sue. Victor and Yvonne agreed, but Calvin did not. Bowen nevertheless named him as a plaintiff in the lawsuit (the Lau case). He estimated that prosecuting the case would cost between $25,000 and $50,000.

Over the next three years, the Lins paid Bowen nearly $68,000. Frustrated with ever-mounting costs, Victor told Bowen to cease all nonessential work on the Lau case while Gail, a licensed attorney, tried to reach a settlement with Lau's estate.² Bowen replied that he would not cease work and would not grant Gail permission to settle the case as long as he was counsel of record. Gail then formally substituted in and settled the case.

Bowen sued Victor and Yvonne for breach of contract and quantum meruit, seeking to recover the unpaid balance of his fees. Victor and Yvonne cross-complained, alleging that Bowen breached his fiduciary duties, committed malpractice, and failed to execute a written fee agreement. Calvin joined the lawsuit as a cross-complainant.

Bowen then filed his own cross-complaint. His first cause of action asserted that Calvin breached his oral contract with Bowen when he stopped cooperating in the Lau case and fired Bowen as his attorney. The second, third, and fourth causes—for intentional interference with contractual relations, intentional interference with prospective economic relations, and negligent interference with prospective economic relations—asserted that Calvin and Gail encouraged their parents to stop cooperating with Bowen, fire him as their attorney, withhold payments due, and work with Gail to achieve a settlement. Bowen's fifth cause asserted that Victor, Yvonne, and Calvin committed fraud when they induced him to provide legal services in the Lau case—all while providing minimal payments—knowing they would have Gail settle the case on the eve of trial. The sixth cause asserted that all four members of the Lin family conspired to defraud Bowen by encouraging him to work on the Lau case while knowing they would settle it themselves after substituting him out.

The Lins filed anti-SLAPP motions to strike relevant portions of Bowen's cross-complaint. The trial court granted Gail's motion, concluding that the actions she took on behalf of her parents and brother were protected by the anti-SLAPP statute and that the litigation privilege prevented Bowen from showing a probability of prevailing on the causes of action against her. The court denied the motions filed by Victor, Yvonne, and Calvin, concluding that the causes against them were "probably not" based on communications made " ‘in connection with an issue under consideration or review by a judicial body.’ " It did not decide whether Bowen established a probability of prevailing on those causes. It also declined to rule on the parties’ evidentiary objections.

DISCUSSION

The anti-SLAPP statute

Code of Civil Procedure ³ section 425.16 sets forth "a two-step process for determining whether an action is a SLAPP." ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703 ( Navellier ).) First, the defendant must show that "that the challenged cause of action is one arising from protected activity ... by demonstrating that the act underlying the ... cause fits [within] one of the categories spelled out in section 425.16, subdivision (e).’ " ( Ibid . ) If the defendant makes that showing, the burden shifts to the plaintiff to "demonstrate[ ] a probability of prevailing on" the merits of their cause. ( Ibid . ) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute ... is ... subject to being stricken." ( Id . at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

We independently review a trial court's decision to grant or deny an anti-SLAPP motion. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326, 46 Cal.Rptr.3d 606, 139 P.3d 2 ( Flatley ).) When undertaking that review, " ‘[w]e consider "the pleadings[ ] and supporting and opposing affidavits upon which the liability or defense is based" ’ " ( id . at p. 326, 46 Cal.Rptr.3d 606, 139 P.3d 2 ), but "do[ ] not weigh evidence or resolve conflicting factual claims" ( Baral v. Schnitt (2016) 1 Cal.5th 376, 384, 205 Cal.Rptr.3d 475, 376 P.3d 604 ). Instead, we limit our inquiry "to whether the plaintiff has stated a legally sufficient [cause of action] and made a prima facie factual showing sufficient to sustain a favorable judgment." ( Id . at pp. 384-385, 205 Cal.Rptr.3d 475, 376 P.3d 604.) We "accept[ ] the plaintiff's evidence as true, and evaluate[ ] the defendant's showing only to determine if it defeats the plaintiff's [cause] as a matter of law." ( Id . at p. 385, 205 Cal.Rptr.3d 475, 376 P.3d 604.) Causes of action " ‘with the requisite minimal merit may proceed.’ [Citation.]" ( Ibid. , alterations omitted.)

Bowen's causes of action against Victor, Yvonne, and Calvin

1. Protected activity

Victor, Yvonne, and Calvin first contend the trial court erred when it concluded that the causes of action against them did not arise from protected activity. We agree.

In his first cause of action, Bowen alleges that he entered into an oral contract to represent Calvin in the Lau case. Pursuant to the contract, "Calvin agreed to actively cooperate with Bowen ... to achieve a successful result [and] ... obtain[ ] an award for damages against the [Lau defendants]." Calvin breached that contract "by failing and refusing to actively cooperate with Bowen" and then "terminating [their] attorney-client relationship."

Few acts are more squarely protected by the anti-SLAPP statute. Among the acts protected by the statute are "statement[s] or writing[s] made before a ... judicial proceeding" ( § 425.16, subd. (e)(1) ) and "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a ... judicial body" (id. , subd. (e)(2)). The first basis for Bowen's breach of contract cause of action—the extent of Calvin's communications with Bowen about the Lau case—fits within these categories: The "filing, funding, and prosecution of a civil action" are protected acts. ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.) And but for the decision to file, fund, and prosecute the Lau case, Bowen's breach of contract cause of action would have no basis. ( Moss Bros. Toy, Inc. v. Ruiz (2018) 27 Cal.App.5th 424, 435-436, 238 Cal.Rptr.3d 292 ; see also Navellier, supra , 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

The anti-SLAPP statute also protects "conduct in furtherance of the exercise of the constitutional right of petition." ( § 425.16, subd. (e)(4).) Decisions about hiring and firing one's attorney—the second basis for Bowen's breach of contract cause of action—are within this category. (See, e.g., Gage v. Atwater (1902) 136 Cal. 170, 172, 68 P. 581 [noting that a "client has the absolute right to change [their] attorney at any stage"]; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 491, 72 Cal.Rptr.3d 847 ( Taheri ) ["the ‘important right to counsel of one's choice’ is ... well established"].) The trial court thus erred when it concluded that Bowen's breach of contract cause of action did not arise from protected activity.

We reach the same conclusion with respect to the interference causes of action. Bowen bases these causes on Calvin encouraging his parents to stop cooperating with Bowen in the Lau case, sever their attorney-client relationship with him, and instead have Gail negotiate a settlement. These communications were not tangential to the Lau case, but directly pertained to its resolution. ( Taheri, supra , 160 Cal.App.4th at p. 489, 72 Cal.Rptr.3d 847.) As such, they were " ‘made in connection with an issue under consideration or review by a judicial body.’ " ( Ibid. , alterations omitted; see also Pech v. Doniger (2022) 75 Cal.App.5th 443, 462, 290 Cal.Rptr.3d 471 ( Pech ) [advising clients to terminate attorney's services is protected activity].) Bowen's second, third, and fourth causes of action thus "plainly ... arose from" protected conduct. ( Taheri , at p. 489, 72...