Rubin v. Green

• Decision Date: 05 April 1993
• Docket Number: No. S025858,S025858
• Citation: 17 Cal.Rptr.2d 828,847 P.2d 1044,4 Cal.4th 1187
• Parties: , 847 P.2d 1044, 61 USLW 2658 Gerald S. RUBIN, Plaintiff and Appellant, v. Norma GREEN et al., Defendants and Respondents.
• Court: California Supreme Court

Page 828

17 Cal.Rptr.2d 828

4 Cal.4th 1187, 847 P.2d 1044, 61 USLW 2658

Gerald S. RUBIN, Plaintiff and Appellant, v. Norma GREEN et al., Defendants and Respondents.

No. S025858.

Supreme Court of California In Bank.

April 5, 1993.

Grebow & Barish, Arthur Grebow, Patricia A. Brown, Lincoln Stone and Susan Gruskin, Los Angeles, for plaintiff and appellant.

David Spangenberg, Palo Alto, Hart, King & Coldren, Robert S. Coldren, John H. Pentecost, Lawrence R. Bujold, Santa Ana, Rubenstein & Bohachek, Earl L. Bohachek, San Francisco, Daniel J. Popeo, New Hartford, NY, and Richard A. Samp, Washington, DC, as amici curiae on behalf of plaintiff and appellant.

Musick, Peeler & Garrett, Harry W.R. Chamberlain II, Birgit Sale, Mary Catherine M. Bohen, Matthew P. Stone and Joseph D. Rubin, Los Angeles, for defendants and respondents.

Richard N. Bates, Redding, Robert C. Fellmeth, Coronado, Crosby & Stanton, Bruce E. Stanton, San Jose, Altshuler, Berzon, Nussbaum, Berzon & Rubin and Fred H. Altshuler, San Francisco, as amici curiae on behalf of defendants and respondents.

ARABIAN, Justice.

At common law, barratry was "the offense of frequently exciting and stirring up suits and quarrels" (4 Blackstone, Commentaries 134) and was punished as a misdemeanor. A statutory version of the crime survives today, although it is seldom prosecuted, perhaps because of the requirement that the proof show the defendant "excited" at least three groundless suits "with a corrupt or malicious intent to vex and annoy." (Pen.Code, §§ 158, 159.)

The modern successor of common law barratry, solicitation, is not only a misdemeanor when accomplished through the use of agents, but is also subject to discipline by the State Bar. We granted review in this case to consider whether a defendant in an impending civil action may sue the attorneys for the opposing party on the ground that they wrongfully "solicited" the litigation against him. We conclude that this proceeding not only undermines the established policy of allowing access to the courts, but that, given the availability of other remedies for the redress of attorney solicitation, this retaliatory suit is not maintainable.

I

The present action grows out of a "notice of intention to commence action" mailed on August 28, 1989, to Gerald Rubin by Norma Green. The notice was purportedly on behalf of all of the approximately 450 San Bernardino County residents of Cedar Village Mobilehome Park, a park co-owned by Rubin. In her notice, Green, herself a Cedar Village resident, enumerated 23 alleged defects in the operation of the park and sought a variety of remedies under California and federal law.

Rubin's attorney replied on his behalf to Green's letter, offering to meet with a park residents group to discuss the grievances and "attempt to reach a mutually satisfactory resolution." The reply went on to assert that Green had "made threatening statements to various residents" of Cedar Village "in the process of soliciting clients" as an agent for her attorneys' law firm. It concluded by warning Green that Rubin would "not tolerate such conduct and will seek appropriate compensation in the event of any loss or injury to Mr. Rubin's contractual and business relationship with his tenants and employees." Green's attorneys responded to Rubin's letter, contesting many of its assertions but indicating a desire to discuss a resolution of their clients' grievances.

Approximately a week after receiving the law firm's response, Rubin filed this action in the superior court against both Green and the law firm. Rubin's verified complaint alleged several tort claims, the gist of which was that the defendants had solicited Cedar Village residents as clients in anticipated litigation against Rubin over park conditions, thereby interfering in Rubin's contractual relations with them.

The complaint alleged that, with Green as their agent, the law firm had "embarked on a malicious effort to harm [Rubin's] economic and business standing by stirring up animosity among [Cedar Village] residents, utilizing fear, intimidation and coercion against residents, and communicating the false promise of frivolous litigation as a means to profit unjustly at [Rubin's] expense." The complaint sought damages as well as equitable relief enjoining defendants from soliciting "non-client residents at Cedar Village ... to become legal clients of [the law firm] on any matter concerning Cedar Village...." Meanwhile, on December 7, 1989, Green and over 120 other residents of Cedar Village, represented by the defendant law firm, filed the action noticed in Green's letter of August 28 to Rubin, alleging a failure to adequately maintain the park and the imposition of illegal restraints on the sale of mobilehomes by the park owners. ¹

After the superior court denied his application for interim equitable relief and refused a request that the failure-to-maintain suit be consolidated with this action, Rubin filed an amended complaint, adding a claim against defendants for "unfair business practices" and narrowing the request for injunctive relief to encompass only acts of alleged harassment against him. The amended complaint also offered a more detailed account of the solicitation allegedly practiced by the defendants on the residents of Cedar Village.

According to the amended complaint, the law firm had engaged in a pattern of soliciting residents of several mobilehome parks for the purpose of commencing litigation against park owners. Allegedly, the firm's modus operandi was to arrange for an invitation to meet with park residents to help negotiate a resolution of complaints regarding park conditions with the owner; this, in turn, would lead to a promise by the firm to obtain substantial monetary settlements for those residents who agreed to join in litigation against the owner. A lawsuit, preceded by a "form" notice of suit, followed. After filing suit, often on behalf of a hundred or more mobilehome park residents, the law firm would seek an early trial preference on the basis of the advanced age of some of the resident-plaintiffs, thereby (according to the amended complaint) truncating the defendant owner's opportunity for full discovery.

The superior court sustained a general demurrer to the first amended complaint without leave to amend on the ground that defendants' conduct was privileged under Civil Code section 47, subdivision (b) (section 47(b)), the so-called "litigation privilege." A divided Court of Appeal reversed that judgment, ruling that the privilege did not apply to the acts of the law firm and Green for alternative reasons.

First, a majority of the Court of Appeal concluded that although the acts of defendants leading to the law firm's retention by the Cedar Village residents were necessarily "communicative," that aspect of their conduct was secondary. The dominant characteristic of defendants' actions was noncommunicative, and thus was not entitled to the protection of section 47(b). Alternatively, the majority concluded that the Legislature had established an exception to the litigation privilege when it enacted a statutory prohibition on attorney solicitation. That prohibition, embodied in Business and Professions Code sections 6152 and 6153, makes it unlawful to act as an agent in the solicitation of business on behalf of attorneys, punishing violations as a misdemeanor. Finally, the Court of Appeal held that defendants' conduct in allegedly soliciting Cedar Village residents as clients constituted unfair competition, for the redress of which the Unfair Business Practices Act (Bus. & Prof.Code, § 17200 et seq.) provided plaintiff with a private right of action for damages and injunctive relief.

One justice dissented, reasoning that the litigation privilege of section 47(b) applied to the conduct in suit, that the acts of the law firm and Green, alleged in the amended complaint, amounted to inducing the Cedar Village residents to file a lawsuit and were thus protected by a separate immunity, and that the unfair competition statute did not confer a cause of action on plaintiff against defendants for solicitation. We agree with the dissenting justice, albeit for somewhat different reasons, that plaintiff's suit cannot be maintained.

As we explain, the acts of defendants alleged in the amended complaint were communicative within the meaning of section 47(b). They were thus within the scope of the privilege and immune from tort liability. We also conclude that because plaintiff's wrongful solicitation claim lacks an essential attribute of a malicious prosecution action and is brought against attorneys representing litigation adversaries in a related proceeding, it is not maintainable in any event. Finally, we hold that plaintiff may not avoid the bar of section 47(b) by pleading his claim as one for injunctive relief under the unfair competition statute. We will accordingly direct that this action be dismissed.

II

For well over a century, communications with "some relation" to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47(b). ² At least since then-Justice Traynor's opinion in Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405, California courts have given the privilege an expansive reach. ³ Indeed, as we recently noted, "the only exception to [the] application of section 47(2) [now § 47(b) ] to tort suits has been for malicious prosecution actions. [Citations]." (Silberg v. Anderson, supra, 50 Cal.3d at p. 216, 266 Cal.Rptr. 638, 786 P.2d 365 (Silberg ).)

Undergirding the immunity conferred by section 47(b) is the broadly applicable policy of assuring litigants "the utmost freedom of access to the courts to secure and defend their rights...." (Albertson v. Raboff, supra, 46 Cal.2d at p. 380, 295 P.2d 405.) We have recently reemphasized the importance of virtually unhindered access to the courts in several opinions. In Silberg, supr...