Hahn v. Diaz-Barba

• Decision Date: 01 August 2017
• Docket Number: D070225
• Court: California Court of Appeals Court of Appeals
• Parties: WOLFGANG HAHN et al., Plaintiffs and Respondents, v. ALEJANDRO DIAZ-BARBA et al., Defendants and Appellants.

WOLFGANG HAHN et al., Plaintiffs and Respondents, v. ALEJANDRO DIAZ-BARBA et al., Defendants and Appellants.

D070225

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

August 1, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2009-00083805-CU-BT-CTL)

APPEAL from an order of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

Law Offices of D. Anthony Gaston and David Anthony Gaston, Caldarelli Hejmanowski Page & Leer and William J. Caldarelli, David H. Lichtenstein for Defendant and Appellant Martha Barba de la Torre; Seltzer Caplan McMahon Vitek and David M. Greeley for Defendants and Appellants Michael, Nicholas and Alexander Kocherga; James & Waddle and Scott D. Waddle for Defendant and Appellant Alejandro Diaz-Barba; Duckor Spradling Metzger & Wynne and Robert M. Shaughnessy for all Defendants and Appellants.

Cooley and Ali M. M. Mojdehi, Janet D. Gertz, Allison M. Rego for Plaintiffs and Respondents.

Defendants and appellants Alejandro Diaz-Barba (Diaz), Martha Barba De La Torre (Barba), Michael Kocherga, Nicholas Kocherga and Alexander Kocherga (the Kochergas) appeal from an order denying their Code of Civil Procedure section 425.16¹ special motions to strike the second amended complaint of plaintiffs and respondents Wolfgang Hahn and Nikita II, S.A. (at times respectively Hahn and Nikita). Defendants contend the trial court erred by denying their motions because the six causes of action alleged in the operative pleading assertedly arose from constitutionally-protected petitioning activity, namely defendants' alleged demand—as a condition to a proposed company share purchase and sale agreement—that bankruptcy adversary proceedings be dismissed. According to defendants, in reaching its ruling as to the first step of the section 425.16 analysis, the court did not consider the test applicable to a "mixed" cause of action arising from both protected and nonprotected petitioning activity recently set out in Baral v. Schnitt (2016) 1 Cal.5th 376. They ask us to reverse the order and direct the court to enter a new order granting the motions on grounds their acts were privileged and defendants cannot show a probability of prevailing on any claim arising from protected petitioning activity.

We conclude that defendants' anti-SLAPP motions were untimely filed with respect to the first through fourth causes of action for interference with/inducing breach of contract and intentional and negligent interference with economic advantage, and that with respect to the fifth and sixth causes of action for deceit and aiding and abetting deceit, defendants did not meet their burden to show those causes of action arise from activity protected by section 425.16. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND²

Hahn is the owner of land development company Nikita, which in 2007 was the majority owner of Impulsora S.A. (Impulsora), a Mexican company. Hahn is also the sole owner of a company called Kismet. Hahn was planning a high-end development project on Impulsora land.

In about 2004, Diaz and Barba purchased an interest in Mexican coastal property, Villa Vista Hermosa, from an entity controlled by a chapter 7 bankruptcy debtor. Villa Vista Hermosa is immediately adjacent to and surrounded by the Impulsora land. The sale eventually resulted in a bankruptcy trustee initiating adversary proceedings forfraudulent transfer against Diaz and Barba in bankruptcy court. Eugene Kocherga³ had introduced Diaz and Barba to the debtor. Eugene was a minority shareholder in Impulsora, and the other Kochergas had beneficial interests Eugene's shares. At some point after April 2006, Eugene and Diaz entered into a secret agreement concerning Diaz's acquisition of a 20 percent interest in Eugene's shares in Impulsora, and backdated the agreement to July 2003.

In mid-2006, Hahn's company Kismet purchased the bankruptcy estate assets, including the fraudulent transfer actions, from the bankruptcy trustee, and Kismet became the plaintiff in those actions. Thereafter, Barba, Diaz and the Kochergas entered into a scheme to convince or force Hahn to dismiss the fraudulent transfer actions. As part of that scheme, Diaz and Barba offered the Kochergas a part ownership interest in Villa Vista Hermosa.

Thus, beginning in September 2006, Michael and Eugene told Hahn that Eugene desired to sell his shares in Impulsora to Hahn and the men engaged in discussions about the sale. As part of those discussions, Hahn informed Michael that the majority shareholders of Impulsora would refrain from a planned merger and recapitalization. In February 2007, Hahn and Eugene entered into a letter agreement concerning the terms of the sale, and Hahn designated Nikita as the assignee of his rights under that agreement.In connection with the negotiations leading up to the letter agreement, neither Eugene nor the Kochergas informed Hahn that they had been promised part ownership of the Villa Vista Hermosa, that they were preparing to file a shareholder retirement action against Impulsora, or that their intent was to compel Hahn to dismiss the fraudulent transfer actions. It was not until March 2007, while the parties were working on a definitive purchase and sale agreement for Eugene's shares in Impulsora, that Michael informed Hahn that Eugene would refuse to perform the letter agreement unless Hahn dismissed the fraudulent transfer actions against Barba and Diaz.

As a result of Eugene's breach of the letter agreement, plaintiffs' planned development project suffered delays, they incurred carrying costs and increased expenses, they were prevented from effectuating their merger plan, and their majority ownership interest in Impulsora was reduced in value.

Eventually, the bankruptcy court entered a judgment requiring Barba and Diaz to transfer Villa Vista Hermosa to Kismet. When Kismet began enforcing the judgment, Eugene, with the assistance of funding from Diaz and Barba, filed lawsuits in Mexico in an effort to harass Hahn and prevent him from enforcing the judgment.

Proceedings Leading to the Present Appeal

In early 2009, plaintiffs sued defendants, alleging causes of action for interference with and inducing breach of contract (first and second causes of action), intentional and negligent interference with prospective economic advantage (third and fourth causes of action), and conspiracy (fifth cause of action). They alleged generally that Diaz and Barba sought to use threats, bribes and unlawful methods to force Hahn to dismiss thefraudulent transfer actions, and in doing so, induced Eugene and the Kochergas to assist them in the scheme. Plaintiffs filed a first amended complaint in July 2009 omitting the conspiracy cause of action in response to an order granting in part Barba's motion to strike. Thereafter, on the defendants' motions,⁴ the superior court in October 2009 stayed the action on grounds of the existence of a more convenient forum (Mexico), and an appeal in this case ensued after which this court affirmed the stay order in an April 2011 decision. (Hahn v. Diaz-Barba, supra, 194 Cal.App.4th at pp. 1182, 1199.)

In June 2014, the superior court granted plaintiffs' motion to lift the stay, and several months later, granted plaintiffs leave to file a second amended complaint. (Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1473-1474, 1479, 1481.) Before that pleading was filed, defendants brought a writ petition challenging that order, and the matter was stayed yet again. (Id. at p. 1481.) In April 2015 this court denied defendants' writ petition, in part holding the superior court properly lifted the stay because Mexico turned out not to be a suitable alternate forum. (Id. at p. 1489.) The parties proceeded to engage in discovery, resulting in the filing of motions to compel. In June 2015, the parties agreed to, among other things, a briefing schedule to decide the choice of law to be applied to the case. The matter was set for a January 2017 trial date.

In August 2015, plaintiffs filed a second amended complaint. This triggered further proceedings during which defendants objected to the form of the pleading andresulted in the court striking proposed seventh, eighth, and ninth causes of action.⁵ Plaintiffs then filed an excised second amended pleading in early October 2015. The second amended complaint contains the same causes of action as in the first amended pleading, and also alleges a fifth cause of action for deceit against Michael individually and Diaz, Barba, Nicholas and Alexander as conspirators, as well as a sixth cause of action for "aiding and abetting" deceit against defendants Diaz, Barba, Nicholas and Alexander. Plaintiffs allege in the first cause of action for intentional interference with contract that defendants knew of the existence of the letter agreement between plaintiffs and Eugene and interfered with Eugene's performance of the letter agreement so as to cause him to breach it by refusing to perform and demanding the fraudulent transfer actions against Diaz and Barba first be dismissed by Hahn. In the second cause of action for inducing breach of contract, plaintiffs allege that Diaz and Barba, knowing the transfer of Villa Vista Hermosa to them was fraudulent, were "desperately looking for some leverage against Plaintiffs" to force Hahn to dismiss the fraudulent transfer actions against them and thus deliberately interfered with the letter agreement and used their influence with the Kochergas by offering them an ownership in the Villa Vista Hermosa property. They allege that as a result of the offer to Eugene and the Kochergas, Eugene was induced to...