Litinsky v. Kaplan

• Decision Date: 04 October 2019
• Docket Number: B293968
• Court: California Court of Appeals Court of Appeals
• Parties: Mina LITINSKY, Plaintiff and Appellant, v. Jayne KAPLAN, Defendant and Respondent.

40 Cal.App.5th 970

253 Cal.Rptr.3d 626

Mina LITINSKY, Plaintiff and Appellant,

v.Jayne KAPLAN, Defendant and Respondent.

B293968

Court of Appeal, Second District, Division 2, California.

Filed October 4, 2019

Law Office of Leslie S. McAfee, Burbank, and Leslie S. McAfee for Plaintiff and Appellant.

Nemecek & Cole, Michael McCarthy, Mark Schaeffer and Vikram Sohal, Los Angeles, for Defendant and Respondent.

LUI, P. J.

Mina Litinsky appeals from an order striking her claims against respondent Jayne Kaplan under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).¹

Litinsky was the defendant in a prior lawsuit in which Kaplan, an attorney, represented the plaintiff. Following the dismissal of that lawsuit, Litinsky sued Kaplan for malicious prosecution and intentional infliction of emotional distress, along with similar claims against Kaplan’s former client and others.²

The trial court granted Kaplan’s motion to strike both of the claims against her. Because the claims arose from Kaplan’s prosecution of the prior lawsuit, they met the first requirement under the anti-SLAPP statute to show protected free speech or petitioning activity. Litinsky was therefore required to show a likelihood that she would succeed on her claims, which she failed to do. Her claim for intentional infliction of emotional distress was precluded by the litigation privilege ( Civ. Code, § 47 ). And her claim for malicious prosecution could not succeed because the evidence showed that Kaplan had probable cause to prosecute the prior lawsuit against Litinsky on behalf of Kaplan’s client.

We affirm. The only issue that Litinsky raises in this appeal is the viability of her malicious prosecution claim. We agree with the trial court that Kaplan had sufficient evidence of the potential merit of her client’s claims to meet the probable cause requirement. The evidence came primarily from her client. While that evidence was contradicted by testimony from the opposing party and some third parties, it was not indisputably false. Faced with the choice of accepting the version of events presented by her client or the version described by the opposing party, Kaplan appropriately opted to continue advocating for her client. She could not be liable for malicious prosecution for making that choice so long as the client’s claims were arguably meritorious.

BACKGROUND

1. The Prior Lawsuit

In December 2016, Kaplan filed an action in Los Angeles Superior Court for fraud against Litinsky on behalf of Vadim Harutyunov. The complaint alleged that in 2004 Litinsky had promised to pay Harutyunov a 10 percent commission on purchases of art by persons whom Harutyunov referred to Litinsky’s art gallery in Denver, Colorado. Harutyunov had allegedly referred a customer named Armen Petrosyan to Litinsky’s gallery. Harutyunov claimed that he first learned in 2015 that Petrosyan had purchased art from Litinsky on which a commission was owed.

Before filing the action, Kaplan was given and reviewed a document purporting to be a written agreement between Harutyunov and Litinsky memorializing the 10 percent commission arrangement (the Commission Agreement). The Commission Agreement contained the signatures of Litinsky and Harutyunov, as well as a signature by an attorney, Thomas E. Kent, approving the agreement "as to form." The Commission Agreement stated that it was for the period from June 28, 2004, to June 28, 2019, and renewable thereafter unless terminated. The copy of the agreement that Kaplan was given contained a header indicating that it had been faxed on June 28, 2004, from a telephone number with a Colorado area code.

After Litinsky was served with the complaint, she filed a motion to quash on the grounds of forum non conveniens and lack of personal jurisdiction. Kaplan filed an opposition to the motion supported by declarations from both Harutyunov and Petrosyan. In his declaration, Harutyunov confirmed that Litinsky had entered into an agreement with him to pay "a fee for introducing purchasers" and testified that the agreement had been memorialized in a written contract drafted by Harutyunov’s lawyer. Petrosyan testified that he participated in a three-way telephone conversation with Litinsky and Harutyunov in which Harutyunov introduced him as a prospective purchaser.

In reply, Litinsky filed a declaration denying that she had signed the Commission Agreement and denying that she had ever met or even heard of Harutyunov.

The court denied Litinsky’s motion to quash, finding "sufficient minimum contacts supporting specific jurisdiction." The court found "substantial evidence that Litinsky made numerous shipments to California to an individual who states that [Harutyunov] introduced him to Litinsky." The court concluded that "[t]he evidence indicates Litinsky purposefully availed herself of the benefits of the forum by repeatedly doing business with California residents, shipping art to California, as well as discussions with California residents relating to the transactions at issue in this action."

The action proceeded to discovery. In discovery responses, Litinsky again denied entering into the Commission Agreement. She stated that her gallery did not own a fax machine at the time that the Commission Agreement was purportedly faxed from the Colorado number in the header of the agreement. She explained that the identified number was actually the telephone number for her gallery rather than for a fax machine.

In stark contrast, Harutyunov served verified discovery responses confirming that he had entered into the Commission Agreement with Litinsky. At his deposition, Harutyunov testified that Kent was his attorney; Kent had drafted the Commission Agreement; and Kent sent the agreement to Litinsky, who signed it and returned it.

Trial in the prior lawsuit was scheduled for February 26, 2018. Shortly before trial Kaplan filed an ex parte application to continue the trial, which the court granted, on the ground that Harutyunov had recently undergone heart surgery. Trial was rescheduled for July 2, 2018.

Shortly before the rescheduled trial date, Kaplan filed another ex parte request for a continuance on the ground that Harutyunov was still too ill to participate. The court denied the request. Following the denial, on the date set for trial, Kaplan filed a request for dismissal.

2. Kaplan’s Anti-SLAPP Motion

Litinsky filed this action on July 13, 2018, against Kaplan; Harutyunov and his wife; and Petrosyan and his wife. The complaint asserted claims against Kaplan for malicious prosecution and intentional infliction of emotional distress.

Kaplan filed a motion to strike the two claims against her under section 425.16. The motion was based on the grounds that: (1) Litinsky’s claims against her arose from a prior lawsuit, which is petitioning activity that is protected under section 425.16, subdivision (e) ; and (2) Litinsky could not establish a probability of success on her claims. Kaplan argued that Litinsky’s claim for intentional infliction of emotional distress was barred by the litigation privilege under Civil Code section 47. With respect to Litinsky’s malicious prosecution claim, Kaplan argued that: (1) Harutyunov’s voluntary dismissal of the prior action was not a favorable termination on the merits; (2) Kaplan had probable cause to file and prosecute the prior action; and (3) Kaplan did not act with malice.

A. Kaplan’s evidence

In her declaration in support of her motion, Kaplan described the facts on which she relied for probable cause to prosecute the action against Litinsky. She explained that she could not reveal her privileged communications with Harutyunov. However, she pointed out that: (1) Harutyunov had testified at his deposition that the Commission Agreement was genuine; (2) Harutyunov and Petrosyan had provided declarations in response to Litinsky’s motion to quash, attesting to the validity of the Commission Agreement with Litinsky; (3) the trial court had denied Litinsky’s motion in an order that seemed to give credence to the Harutyunov and Petrosyan declarations; (4) Petrosyan had provided copies of invoices from Litinsky’s gallery that contained a fax header with the same number as the fax line on the Commission Agreement; and (5) Kaplan had retained an expert who was prepared to testify that the fax header on the Commission Agreement was genuine.

Kaplan also supported her motion with exhibits, which included: (1) the filings from the motion to quash; (2) discovery responses; (3) the invoices from Petrosyan bearing the same fax header as the Commission Agreement; (4) her expert’s curriculum vitae; and (5) correspondence with Litinsky’s counsel.

B. Litinsky’s evidence

In support of her opposition, Litinsky provided her own declaration, denying that she had ever heard of Harutyunov prior to the litigation. She testified that she had sold art works to Petrosyan, who had then resold them to another person (Raskin) at very high, above market prices. Raskin successfully sued Petrosyan for fraud, and Litinsky was a witness in that litigation. Petrosyan was upset and threatened her.

Although Litinsky had not signed the Commission Agreement, she recognized the signatures on the agreement as her own. She examined invoices that she had prepared for Petrosyan and concluded that her signature on those invoices were identical to her signature on the Commission Agreement. She denied that her gallery owned a fax machine in 2004 when the Commission Agreement was signed.

Litinsky’s counsel, Leslie McAfee, also submitted a declaration, describing information that he had provided to Kaplan to show that the Commission Agreement was fraudulent. In his first conversation with Kaplan, McAfee advised Kaplan that Litinsky had been a witness in the fraud lawsuit against Petrosyan, and that Harutyunov was a "cousin or close family member" of Petrosyan.³ During discovery, McAfee also advised Kaplan of three witnesses who confirmed that Litinsky’s gallery did not own a fax...