Rohde v. Wolf

• Decision Date: 13 August 2007
• Docket Number: No. B194487.,B194487.
• Citation: 64 Cal.Rptr.3d 348,154 Cal.App.4th 28
• Court: California Court of Appeals Court of Appeals
• Parties: Sophia Metsos ROHDE, Plaintiff and Respondent, v. Michael WOLF, Defendant and Appellant.

64 Cal.Rptr.3d 348

154 Cal.App.4th 28

Sophia Metsos ROHDE, Plaintiff and Respondent, v. Michael WOLF, Defendant and Appellant.

No. B194487.

Court of Appeal, Second District, Division 5.

August 13, 2007.

Wolf, Rifkin, Shapiro & Schulman, Roy G. Rifkin and Ryan P. Eskin, Los Angeles, for Defendant and Appellant.

Catanese & Wells, T. Randolph Catanese and Douglas R. Hume, Westlake Village, for Plaintiff and Respondent.

MOSK, J.

INTRODUCTION

There were disputes, including threats of litigation, between a brother and sister concerning the distribution of their deceased father's assets. During the period of the disputes, the attorney for the brother became dissatisfied when the proposed listing agent for one of the father's real property assets, allegedly at the sister's direction, failed to send the attorney a listing agreement for the property and a proposal from a potential buyer. The attorney left voicemail messages that accused the listing agent of conspiring with the sister to defraud the brother and that threatened to take "appropriate action." The sister sued the brother's attorney for defamation based on those messages. The attorney filed a motion to strike the sister's complaint under the anti-SLAPP statute—Code of Civil Procedure section 425.16 (section 425.16). The trial court denied the motion, and the attorney appeals. In reversing, we hold that the messages, under these circumstances, are covered by the anti-SLAPP statute and the litigation privilege in Civil Code section 47, subdivision (b) (section 47), and that the lawyer's anti-SLAPP motion should have been granted.

BACKGROUND

Peter Metsos died on March 29, 2004. He left a will, the Metsos Family Trust, and the Peter Metsos Trust. George Metsos (Metsos), Peter Metsos's son, was appointed executor of the Peter Metsos Trust. The Metsos Family Trust included a number of corporations that managed and operated individual restaurants.¹ The Metsos Family Trust also owned real estate related to at least some of these restaurants. Among the corporations in the Metsos Family Trust was P.S.G., Inc., which managed and operated the Lamplighter No. 3 restaurant.

From at least January 2006, Metsos and his sister, plaintiff and respondent Sophia Metsos Rohde (plaintiff), had a dispute concerning the distribution of their father's assets. Defendant and appellant Michael Wolf (defendant), an attorney, and his law firm, Wolf, Rifkin, Shapiro & Schulman, LLP, represented Metsos in that dispute.

On February 10, 2006, defendant wrote a letter to T. Randolph Catanese, plaintiffs attorney, addressing a number of issues in the dispute. By letter dated that same day, Catanese responded, "Generally, when I receive letters of this type I do not respond with a letter, but rather with a lawsuit. It is readily apparent that you and your client have no desire to resolve the issues between our respective clients absent court intervention. Accordingly, the intended purpose of this letter is to apprise you and your client of what will be contained in a lawsuit, in part, when one is filed."

Thereafter, on April 17, 2006, Catanese, plaintiff, plaintiffs husband, and defendant met and agreed that certain real property located in Chatsworth (the real estate related to the Lamplighter No. 3 restaurant) would be sold and the net proceeds divided equally between plaintiff and Metsos. Steve Weiss of NAI Capital was to be the listing agent and to prepare a listing agreement. Each of the sides was to keep the other informed of any developments concerning the listing and sale of the property. Nothing was to proceed with respect to the sale of the property without the mutual consent of Metsos and plaintiff.

On April 25, 2006, defendant spoke with Weiss and advised him that he was to be included in all communications regarding the listing and sale of the property. Weiss informed defendant that he would be putting together a proposal for plaintiff and Metsos that week. Defendant asked Weiss to prepare a listing agreement for "our review" (apparently defendant's and Catanese's review).

On May 3, 2006, defendant had not heard from Weiss. He called Weiss and, apparently, left a message. In a responding voice mail message, Weiss "indicated" that he had prepared a listing agreement and had sent the listing agreement to plaintiff along with a proposal from a potential buyer for the property. Weiss stated that plaintiff had "specifically instructed" him not to send the listing agreement and the proposal to defendant.

Later that day, defendant attempted, unsuccessfully, to reach Weiss. Defendant left a voice mail message for Weiss demanding the listing agreement and proposal, expressing his dissatisfaction with not having been sent these documents, and stating, "I believe you are obviously engaged in a conspiracy to defraud my client with Sophia Rohde and I plan on taking appropriate action." Shortly thereafter, defendant left Weiss a second voice mail message stating, "Since you are obviously avoiding my calls, I can only assume that you are engaged in some kind of conspiracy with Sophia Rohde to deprive George Metsos of his interest in his property." In his declaration in support of his anti-SLAPP motion, defendant states, "I know that, had my client and I continued to be excluded from communications concerning the listing and sale of the Chatsworth Property, an action would have been filed to protect my client's interests."

On May 9, 2006, plaintiff and her husband filed an action alleging various causes of action against Metsos and a corporation of which he is allegedly the controlling shareholder and sole officer and director. Plaintiff and her husband alleged that through defendant's statements, Metsos attempted to interfere with the negotiations for the sale of the real estate in question.

On May 26, 2006, plaintiff filed a separate action—this one against defendant— alleging that defendant's voice mail messages to Weiss defamed plaintiff and constituted slander per se. According to plaintiffs complaint, defendant stated "words actually or to the effect `Sophia Rohde is engaged in a conspiracy with you to defraud my client George Metsos of his real estate or personal property."

On July 31, 2006, defendant filed his anti-SLAPP motion to strike plaintiffs complaint in her slander per se action. The trial court denied the motion. Defendant appealed.

DISCUSSION

Defendant contends that the trial court erred in denying his section 425.16 anti-SLAPP motion to strike plaintiffs complaint in her slander per se action. We agree.

A. The Anti-SLAPP Statute and the Standard of Review

"A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.)

In considering the application of the anti-SLAPP statute, courts engage in a two-step process. "`First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.'" (Taus v. Loftus (2007) 40 Cal.4th 683, 712, 54 Cal.Rptr.3d 775, 151 P.3d 1185, ellipsis in original, quoting Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67,124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon).) "`"The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]" [Citation.]' [Citations.] `Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' [Citation.]" (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456,125 Cal.Rptr.2d 534.) Our review of the denial of a motion to strike under the anti-SLAPP statute is de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260. 269, fn. 3, 46 Cal.Rptr.3d 638, 139 P.3d 30; Flatley v. Mauro (2006) 39 Cal.4th 299, 325, 46 Cal.Rptr.3d 606, 139 P.3d 2 (Flatley).)

B. Protected Activity

Section 425.16 defines an "act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue," covered by the anti-SLAPP statute and subject to an anti-SLAPP motion, as including statements or writings made before a judicial proceeding or made in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (b)(1)(2).) Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 (Briggs); Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5, 39 Cal.Rptr.3d 547 (Healy).)

Section 425.16 is "construed broadly, to protect the right of litigants to "`the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.'" (Rubin v. Green (1993) 4 Cal.4th 1187, 1194 [17 Cal.Rptr.2d 828, 847 P.2d 1044]; see § 425.16, subd. (a); Briggs, supra, 19 Cal.4th at p. 1119 [81 Cal.Rptr.2d 471, 969 P.2d 564].)" (Healy, supra, 137 Cal. App.4th at p. 5, 39 Cal.Rptr.3d 547; see Flatley, supra, 39 Cal.4th...