Flannery v. Murray

Decision Date09 May 2016
Docket NumberB266651
PartiesPATRICK FLANNERY, Plaintiff and Appellant, v. ANDREA MURRAY et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SC123759)

APPEAL from an order of the Superior Court of the County of Los Angeles, Gerald Rosenberg, Judge. Affirmed.

Daneshrad Law Firm, and Joseph Daneshrad, for Plaintiff and Appellant.

Law Offices of Ma. Rita S. Vesagas, and Ma. Rita S. Vesegas, for Defendants and Respondents.

Plaintiff and appellant Patrick Flannery appeals from the trial court's order granting an anti-SLAPP1 motion (Code Civ. Proc. § 425.16)2 made by defendants and respondents Andrea Murray, Philip Kaufler and Cary Goldstein. Plaintiff contends the trial court erred in granting the motion because the sole cause of action had at least minimal merit. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2009, plaintiff and Murray filed an action against Southern California Gas Company (SCGC), Los Angeles Superior Court (LASC) Case No. PC046735 (Sesnon Fire Action), which was later consolidated under In re Sesnon Fire Cases, LASC Case No. BC442504. The Sesnon Fire Action concerned fire damage to a ranch property and a horse boarding business. Kaufler and Goldstein were attorneys but they did not represent plaintiff or Murray in that action. Murray was represented by at least two different attorneys at separate times, including Scott Tepper from October 2009 through about September 2010. Plaintiff was represented by Tepper from October 2009 through June 2012, and thereafter by Joseph Daneshrad—Tepper's brother-in-law and plaintiff's appellate counsel here.

After the Sesnon Fire Action was commenced, Murray filed a lawsuit against plaintiff, LASC Case No. BC438538, for breach of contract and fraud concerning the ownership of a ranch property and the horse boarding business on that property (Murray Action). Murray was represented by Kaufler and Goldstein in that action. Around June 2012, Tepper filed a notice of lien in the Sesnon Fire Action based on his prior representation of plaintiff and Murray in that case.

In February 2013, the trial court in the Sesnon Fire Action held a hearing at which it memorialized the terms of a confidential settlement that plaintiff and Murray reached with SCGC after two days of a mandatory settlement conference. Pursuant to the settlement agreement, it was agreed: SCGC was to pay specified sums; plaintiff and Murray provided SCGC and agents, etc., with a general release of all claims arising out of or in connection with the facts of that case; each "party" would bear their own costs and attorney fees in that litigation; plaintiff and Murray agreed to dismiss their lawsuit against SCGC; and the parties agreed the terms of the settlement agreement were confidential. The agreement further provided SCGC's payments would be made in specified sums to plaintiff, Murray, and Goldstein to fully discharge a notice of lien he had filed in that case.

The following exchange occurred at the hearing:

"[] Kaufler: Your Honor, there is one exception I would like to state. We plan on going to court in the pending civil matter between [plaintiff] and Murray [i.e., the Murray Action] and advising the court of this settlement because we intend to seek an injunction—restraining order—

"The Court: Then you seek to do it under seal. Okay. Because the terms of this settlement are confidential. So you will need to . . . do that under seal. That is between you and the other court. But this . . . settlement is confidential."

In February 2013, Tepper sent an e-mail to plaintiff, Murray, and SCGC, and their respective counsel, stating he had been advised of the settlement in the Sesnon Fire Action and demanded SCGC set aside one-third of any settlement payments for Tepper. Also, following the confidential settlement in the Sesnon Fire Action, judgment was entered in favor of Murray and against plaintiff in the Murray Action.

On February 28, 2013,3 Murray, through Kaufler and Goldstein, filed in the Murray Action an ex parte application made pursuant to California Rules of Court, rule2.551 (Ex Parte Application to Seal) for an order to file under seal an ex parte application for preliminary injunction and/or restraining order. The Ex Parte Application to Seal sought to seal the ex parte application for preliminary injunction and/or restraining order (Ex Parte Application for Injunction/TRO) and "[a]ll papers and records related to this motion." On the day the Ex Parte Application to Seal was filed, the trial court issued a minute order granting it, and the Ex Parte Application for Injunction/TRO was filed under seal.

The sealed Ex Parte Application for Injunction/TRO sought to prohibit plaintiff from negotiating any settlement proceeds obtained by SCGC in the Sesnon Fire Action, and to place those funds into a trust account or to interplead them with the court.4 Murray, through Kaufler and Goldstein, submitted a "Proposed Order" in connection with the Ex Parte Application for Injunction/TRO. There is no indication in the record whether defendants filed the proposed order under seal (with the Ex Parte Application for Injunction/TRO or otherwise), filed it unsealed, or lodged it with the trial court.

Also on February 28, 2013, the trial court in the Murray Action interlineated, executed, and filed the unsealed proposed order submitted by defendants (Injunction/TRO Order). The Injunction/TRO Order provided plaintiff was prohibited from negotiating the settlement proceeds obtained in the Sesnon Fire Action (in a specified amount), and he was to deposit the settlement proceeds (in a specified amount) in trust.5 The Injunction/TRO Order scheduled a hearing on Murray's request for a permanent injunction for April 10, 2013. On March 8, 2013, attorney Tepper purchased a copy of the Injunction/TRO Order.

On March 13, 2013, SCGC's counsel sent an e-mail to Tepper and plaintiff's counsel, providing three choices for distribution of the settlement funds including, inter alia, interpleading the funds with the court. Tepper responded by providing SCGC with a copy of the Injunction/TRO Order, and because several claims were being made to the settlement funds, Tepper stated he believed SCGC's "only choice" was to interplead those funds with the trial court. SCGC's counsel replied, stating he was unaware of the Injunction/TRO Order, agreed with Tepper's assessment, and advised SCGC would be interpleading the funds. The following day, SCGC's counsel sent an e-mail to plaintiff's counsel stating, "I am concerned that I had to learn about the [the Injunction/TRO Order] from [] Tepper, since that order effectively requires that [SCGC] interplead the funds in dispute."

On March 15, 2013, SCGC filed a complaint in interpleader against plaintiff, the Daneshrad's law offices, and Tepper and his law firm—LASC Case No. BC503027 (Interpleader Action). SCGC alleged Tepper, plaintiff, Daneshrad, and "others," claimed "an interest to all or some of any settlement proceeds payable to [plaintiff] under" the confidential settlement agreement. SCGC interpled with the court the disputed settlement proceeds. On April 10, 2013, the trial court in the Murray Action denied Murray's request for a preliminary injunction, finding the Ex Parte Application for Injunction/TRO was moot because SCGC's Interpleader Action adequately protected Murray's interest in the settlement proceeds.

On February 11, 2015, based on the disclosure of confidential settlement terms in the Injunction/TRO Order, plaintiff filed the underlying complaint against defendants alleging a single cause of action for breach of contract. Plaintiff alleged in the complaint that all three defendants "entered into" the confidential settlement agreement with plaintiff and SCGC; defendants agreed to keep the terms of the settlement agreement confidential; defendants breached the confidential settlement agreement "by divulging the confidential terms of the settlement to the general public on February 28, 2013 . . ."; and plaintiff suffered damages in excess of $750,000.

On April 17, 2015, the defendants filed their anti-SLAPP motion, arguing the Ex Parte Application for Injunction/TRO made to the trial court was a protected activity. Defendants also argued plaintiff could not demonstrate a likelihood of prevailing on his breach of contract cause of action because: defendants did not breach the confidentiality agreement; Kaufler and Goldstein were not parties to the confidentiality agreement and thus not bound to its terms; plaintiff did not suffer damages; any damages suffered by plaintiff were not caused by defendants; and the litigation privilege barred plaintiff's claim.

Plaintiff opposed the anti-SLAPP motion, arguing, inter alia, defendants' breach of the confidential settlement agreement caused him to suffer damages because he was deprived of immediate use of at least two-thirds of the settlement funds; was deprived of $81,053.44 in settlement funds because the court in the Sesnon Fire Action awarded that amount to SCGC as attorney fees and costs in the Interpleader Action; incurred attorney fees exceeding $350,000 to litigate the Interpleader Action; and took out a $50,000 high interest loan as a lien to cover litigation costs in the Sesnon Fire Action.

The trial court issued a minute order granting defendants' anti-SLAPP motion,6 stating, "The Breach of Contract claim is based on a court order with confidential information which was not sealed. [¶] Plaintiff fails to show that he will probably prevail on his claim against these defendants....

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