Davis v. Purple Mountain Empire X, LLC
| Docket Number | D078450 |
| Decision Date | 19 January 2022 |
| Parties | KEITH O. DAVIS, Plaintiff and Appellant, v. PURPLE MOUNTAIN EMPIRE X, LLC, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No 37-2020-00027623-CU-FR-CTL, Katherine A. Bacal, Judge. Affirmed in part, reversed in part, and remanded.
Keith O. Davis, in pro. per., for Plaintiff and Appellant.
Fitch Law Firm and Stephen J. Fitch for Defendant and Respondent.
Plaintiff Keith Davis alleges that his former employer Purple Mountain Empire X, LLC (PMEX) and its counsel Stephen Fitch committed fraud on the court to secure the dismissal of his 2012 sexual harassment lawsuit. Davis has asserted variations of this basic claim in multiple lawsuits filed over the years against PMEX, Fitch, and others, resulting in prior rulings adverse to Davis on demurrers and anti-SLAPP motions. Presented with another attempt, the trial court granted PMEX's motion to strike under the anti-SLAPP statute (Code Civ. Proc, § 425.16[1]), concluding Davis's claims against PMEX arose from PMEX's protected petitioning activity and lacked minimal merit given the litigation privilege and res judicata.
Addressing Davis's appeal, we affirm the trial court's sound analysis as to six of nine causes of action in Davis's complaint, which rest on alleged litigation misconduct by PMEX and its counsel in prior court proceedings. We must reverse, however, as to the three employment-related causes of action asserted in Davis's complaint, concluding PMEX did not meet its threshold burden to show that the anti-SLAPP statute applied. Although Davis's attempt to relitigate the same employment claims that have been fully and finally decided against him on the merits may fail for other reasons such as res judicata, those claims are not subject to a special motion to strike.
This is Davis's third time suing PMEX, and his second time alleging that PMEX perpetrated fraud on the court during prior proceedings. As some background is necessary to understand the res judicata issues presented in this appeal, we first explore the underlying litigation before discussing this action and the court's order granting PMEX's anti-SLAPP motion.
Davis worked as a property manager for various "Purple Mountain" LLCs owned by Linda Greenberg. In 2010 Greenberg sued Davis to recover an unpaid debt.[2] Davis filed a cross-complaint against Greenberg and nine Purple Mountain entities (not including PMEX), alleging that Greenberg sexually harassed him and terminated him when he complained. (For purposes of this opinion, the 2010 action is referred to as Davis I.) The parties in Davis I reached a global settlement in October 2012. In signing the agreement, Davis released all claims against Greenberg and the nine Purple Mountain entities he sued.
Just a few months later, Davis filed a new lawsuit (Davis II[3]) against PMEX, alleging retaliation, sexual harassment, and a hostile work environment based on the same conduct alleged in his Davis I cross-complaint. Judge Hayes sustained PMEX's demurrer without leave to amend in October 2013, concluding the release contained in the 2012 settlement agreement barred Davis's claims against PMEX. This court affirmed that ruling on appeal, explaining that although PMEX was not a party to the 2012 settlement agreement, it was an intended third party beneficiary, and the release encompassed all of Davis's employment-related claims. (Davis v. Purple Mountain Empire X, LLC (Jan. 8, 2015, D065302) [nonpub. opn.].)
Believing PMEX's attorney Stephen Fitch secured the result in Davis II through fraud on the court, Davis filed several additional lawsuits. In 2014, he sued Fitch for defamation, abuse of process, malicious prosecution, fraud, and infliction of emotional distress based on filings Fitch made on PMEX's behalf in Davis II.[4] Judge Meyer granted Fitch's anti-SLAPP motion in that action in May 2015, concluding the absolute litigation privilege barred all causes of action except malicious prosecution, which in turn failed because neither the 2010 nor 2012 cases were commenced by Fitch nor were terminated in Davis's favor.
In June 2015, Davis sued Greenberg, Fitch, various Purple Mountain entities (excluding PMEX), accountants, and other professionals involved in the settlement of Davis I for fraud, interference with economic advantage, and intentional infliction of emotional distress.[5] Broadly speaking, Davis claimed he would not have signed the settlement agreement had he known that Greenberg would tell the IRS she cancelled $1.2 million in debt (triggering tax consequences for Davis), that the Purple Mountain entities would claim that PMEX was covered by the release, or that the defendants would continue to disparage his character after settling. Judge Pollack sustained defendants' demurrers without leave to amend in March 2016, finding Davis's claims were barred by res judicata, collateral estoppel, and the absolute litigation privilege, and imposed sanctions for Davis's "repeated efforts to relitigate issues either already decided against him or presently on appeal." Davis appealed, but his appeal was dismissed on account of his failure to timely file an opening brief. (Cal. Rules of Court, rule 8.220(a)(1).)
In November 2015, Davis sued PMEX a second time (Davis III), alongside Greenberg, Fitch, and Fitch's law firm.[6] Davis charged these defendants with fraud, intentional interference with contractual relations, fraudulent misrepresentation, wrongful termination, and intentional infliction of emotional distress based on their handling of Davis II. Judge Wohlfeil granted an anti-SLAPP motion filed by PMEX and Greenberg in February 2017. He reasoned that these defendants met their moving burden to show that Davis's claims arose out of their protected petitioning activity, since each of Davis's claims, including the one labeled wrongful termination, related to statements made in filings during litigation of Davis II. The court noted that Davis did not file any opposition to establish the minimal merit of his claims. But even if he had, Judge Wohlfeil reasoned that each of the asserted claims were barred by the absolute litigation privilege (Civ. Code, § 47, subd. (b)). Davis appealed, but his appeal was dismissed when he again failed to timely file an opening brief.
Davis filed this action against PMEX (his third) in August 2020. His complaint pleads nine causes of action. The first three plead verbatim the wrongful termination, sexual harassment, and hostile work environment claims asserted against PMEX in Davis II. As he did in Davis II, Davis avers that Greenberg sexually harassed him while he worked for her at PMEX, and fired him when he complained.
The remaining six causes of action rest on alleged litigation misconduct during court proceedings in Davis II. Of these, three were previously filed and adjudicated in Davis III-fraud, intentional interference with contractual relations, and intentional infliction of emotional distress. Three others were asserted for the first time against PMEX, although perhaps raised against other defendants in different lawsuits-abuse of process, breach of contract, and defamation.
However labeled, each of the litigation misconduct claims rest on the same basic theory asserted in Davis III. Because PMEX was not party to the 2012 settlement agreement, Davis asserts that his 2012 sexual harassment complaint against PMEX (Davis II) was not barred by the release. He believes PMEX and its counsel Stephen Fitch convinced courts otherwise by fraud. By transferring Davis II from Judge Pressman to Judge Hayes, filing declarations indicating the transfer would permit coordination with Davis I, representing to Judge Hayes at hearings that the 2012 release was not a nondisclosure agreement, augmenting the record on appeal in Davis II, and misrepresenting to this court in the appeal whether the trial court had taken judicial notice of certain materials, Davis asserts that Fitch perpetrated a fraud on both the trial and appellate courts.
PMEX filed an anti-SLAPP motion and contemporaneously filed a demurrer on res judicata and other grounds.[7] Arguing that Davis's claims challenged court filings and communications during Davis II, PMEX asserted they necessarily arose out of protected petitioning activity. With the burden shifted to Davis to demonstrate the minimal merit of his claims, PMEX claimed that res judicata and the litigation privilege prevented Davis from carrying that burden. To the extent Davis attempted to plead malicious prosecution, such a claim would moreover fail for lack of a favorable termination. Finally, PMEX argued that each of Davis's claims were time-barred by the applicable statutes of limitations.
In support of its motion, PMEX requested judicial notice of prior pleadings and court rulings in Davis I, Davis II, Davis III, and selected other related litigation described above. Fitch filed a short declaration to support his request for $5, 472 in prevailing party attorney's fees (§ 425.16, subd. (c)(1)).
Davis filed an opposition brief but did not submit any supporting evidence or oppose the request for judicial notice. He urged the court to "decide if Attorney Fitch, under penalty of perjury, has been forthcoming to our courts," as "[t]hat is what brings us here today." Addressing PMEX's contention that he was attempting to relitigate claims that three courts had decided against him, Davis maintained that he was "a victim of judicial abuse induced by [PMEX's] filing of false writings and making untrue statements."...
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