Danning Jiang v. Cai
| Decision Date | 30 July 2021 |
| Docket Number | D078846 |
| Parties | DANNING JIANG, Plaintiff and Appellant, v. JAMES CAI et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Order Filed Date: 8/11/21
APPEAL from an order of the Superior Court of Santa Clara No 19CV341417, Mary E. Arand, Judge. Affirmed.
Law Offices of Danning Jiang, Danning Jiang and Fei Liu for Plaintiff and Appellant.
SAC Attorneys and Brian A. Barnhorst for Defendants and Respondents.
It is ordered that the opinion filed herein on July 30, 2021, be modified as follows:
1. On page 26, the last sentence that starts on line 3 with “Further, ” is modified to read as follows:
Further as prevailing defendants in an anti-SLAPP appeal, Cai and SAC Attorneys LLP are entitled to their attorney fees to the extent they have incurred recoverable attorney fees.
There is no change in the judgment.
The petition for rehearing is denied.
Plaintiff Danning Jiang appeals an order granting a special motion to strike filed by defendants James Cai and SAC Attorneys LLP (SAC) pursuant to the anti-SLAPP statute (Code Civ. Proc § 425.16).[1] He argues the trial court erred: (1) in permitting the defendants to file their anti-SLAPP motion more than 60 days after service of the complaint; (2) in finding the defendants' conduct was not illegal as a matter of law; and (3) in finding he did not establish a probability of prevailing on his abuse of process, malicious prosecution, and unfair business practices claims.
We reject these contentions. Therefore, we affirm the order granting the defendants' anti-SLAPP motion.
In 2013, a printed circuit board (PCB) company called TX Trading & TX Solutions, Inc. (TX) entered into a cooperation agreement with a business partner, Shenzhen Edadoc Technology Co., Ltd. (Shenzhen), to promote the design, fabrication, assembly, and parts sourcing of PCBs. The cooperation agreement was written in Chinese.
The parties subsequently retained Jiang-a San Jose-based attorney-to draft a joint venture agreement in English. Jiang prepared the joint venture agreement, the expressed purpose of which was to “create [a] Joint Venture solely to develop and operate PCB design, manufacture, material procurement, and marketing services.” Shenzhen and TX's owners executed the joint venture agreement at a meeting in January 2014. The joint venture later fell apart for reasons that are not clear from the record.
In 2016, a complaint in interpleader was filed against the joint venture and TX's owners to determine the claimants' interests in certain disputed funds. Two cross-complaints were filed in the interpleader action, referred to hereafter as the underlying action. Jiang filed one cross-complaint on behalf of the joint venture against TX and its owners. Cai-a San Jose-based attorney and partner at the SAC law firm-filed the other cross-complaint on behalf of TX and its owners against the joint venture, Shenzhen, Shenzhen's owners, and Jiang.
Cai's cross-complaint asserted misrepresentation and unfair competition claims against Jiang.[2] It alleged Jiang misrepresented the contents of the joint venture agreement to TX's owners, who did not speak English as a first language. It alleged Jiang told TX's owners the joint venture agreement was exactly the same as the prior Chinese-language cooperation agreement, when in fact it superseded the cooperation agreement and contained new terms that were disadvantageous to TX's owners. Further, it alleged Jiang presented the joint venture agreement to TX's owners for the first time at the January 2014 meeting, which caused them to execute the agreement “hastily and on the spot ….” TX's owners signed verifications attesting under penalty of perjury that they reviewed the cross-complaint and the facts contained therein were true.
After the cross-complaint was filed, Jiang wrote a letter to Cai denying the allegations against him. He stated the signatories to the joint venture agreement negotiated for a month before signing. Jiang demanded that Cai “immediately withdraw the cross-complaint against [him], ” (bolding omitted) or he would seek sanctions against Cai and his clients for maintaining a frivolous action. Jiang stated he would also seek damages from Cai and his clients for malicious prosecution and intentional interference with contractual relations. It is unclear from the record whether Cai responded to the letter. In any event, he did not dismiss his clients' cross-complaint.
In February 2017, Jiang deposed TX's owners. During the depositions, TX's owners admitted Jiang emailed a draft of the joint venture agreement to them prior to the January 2014 meeting. These admissions contradicted one of the allegations from the cross-complaint they filed against Jiang.
Notwithstanding his clients' admissions, Cai did not dismiss or seek leave to amend the cross-complaint. Instead, he propounded written discovery on Jiang and deposed Jiang and his clients.
In July 2017, Cai was substituted out as legal counsel due to a potential conflict of interest with his clients. In January 2018, the parties mediated their dispute. They executed a confidential settlement agreement and filed a joint request to dismiss the underlying action in its entirety. The court granted their dismissal request on March 29, 2018.[3]
On January 18, 2019, Jiang filed a complaint against Cai and SAC for abuse of process and wrongful use of civil proceedings (malicious prosecution). The complaint was personally served on the defendants on February 4, 2019.
For the abuse of process claim, Jiang alleged the defendants filed the cross-complaint on behalf of their former clients, took Jiang's deposition, and propounded discovery against Jiang to “intimidate and harass” him. He alleged the defendants “failed to investigate” their former clients' allegations, even after he “warned” them and asked them to “drop the false claims.”
For the malicious prosecution claim, Jiang alleged the defendants “were actively involved in bringing and continuing” the underlying action, which “ended” in his favor. He alleged no reasonable person would have believed there were reasonable grounds to bring the lawsuit and the defendants acted “primarily for a purpose other than succeeding on the merits of the claim[s].”
On January 30, 2019, Jiang amended his complaint to add a claim against the defendants for unfair business practices under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200). The UCL claim alleged the defendants engaged in unlawful conduct in violation of four Penal Code provisions: (1) section 118, subdivision (a) (perjury); (2) section 127 (subornation of perjury); (3) section 182 (conspiracy); and (4) section 138 (witness bribery). The amended complaint was served on the defendants by mail on February 11, 2019.
On April 10, 2019, defense counsel sent an email to Jiang stating the defendants intended to file an anti-SLAPP motion and would seek ex parte relief to “file a longer memo” in support of the forthcoming motion. He asked whether Jiang intended to appear at the ex parte proceeding. Jiang did not reply to the email prior to the ex parte proceeding.
The following day, the defendants filed an ex parte application requesting permission from the court: (1) to file an enlarged brief for the anti-SLAPP motion; and (2) to file the anti-SLAPP motion more than 60 days after service of the amended complaint. Jiang did not oppose the ex parte application or appear at the ex parte proceeding. The court granted the request and ruled the defendants could file an anti-SLAPP motion with an enlarged memorandum more than 60 days after service of the amended complaint-specifically, on or before April 30.
Soon after, Jiang filed an ex parte application to vacate the court order extending the defendants' filing deadline. He argued the defendants procured the extension through “surprise, mistake, or fraud” because they failed to give Jiang proper notice that they would be requesting an extension of their deadline to file an anti-SLAPP motion. There is no reporter's transcript for the hearing on Jiang's ex parte application; therefore, we have no record of what transpired during the proceeding. However, we do know the court denied Jiang's ex parte application in relevant part. In doing so, the court used a proposed order filed by Jiang and modified it in two respects: (1) by crossing out a provision that stated the court would strike its prior order extending the defendants' filing deadline; and (2) by adding the following statement in handwritten text: “[Jiang] has reserved [his] right to object to the timing of the motion.”
On April 16, 71 days after service of the original complaint and 64 days after service of the amended complaint, the defendants filed the anti-SLAPP motion. They argued Jiang's claims were based on protected statements and writings made before a judicial proceeding or in connection with an issue under consideration by a judicial body.
The defendants also argued Jiang could not establish a probability of success for any of his claims. They asserted the litigation privilege codified in Civil Code section 47 subdivision (b) barred the abuse of process and UCL claims. They asserted the abuse of process claim was time-barred and, in any event, Jiang failed to plead a legally sufficient claim. They argued Jiang failed to plead, and could not prove, any of the elements of the malicious prosecution claim. Finally, they asserted Jiang failed to plead, and could not prove, any of the unlawful...
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