Tukes v. Richard

• Decision Date: 12 July 2022
• Docket Number: B307242, B308337,B312086
• Parties: Denise TUKES, Plaintiff and Appellant, v. Pierre RICHARD et al., Defendants and Appellants. Pierre Richard, Plaintiff and Appellant, v. James A. Frieden et al. Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 1

296 Cal.Rptr.3d 707

Denise TUKES, Plaintiff and Appellant,

v.Pierre RICHARD et al., Defendants and Appellants.

Pierre Richard, Plaintiff and Appellant,

v.James A. Frieden et al. Defendants and Respondents.

B307242, B308337

B312086

Court of Appeal, Second District, Division 8, California.

Filed July 12, 2022

Law Offices of Robert A. Brown and Robert A. Brown, Los Angeles, for Appellants Pierre Richard and Robert A. Brown.

Law Offices of James A. Frieden, James A. Frieden, Santa Monica, and Benjamin Bastomski, Venice, for Appellant Denise Tukes.

Nemecek & Cole, Michael McCarthy, Encino, Mark Schaeffer, and Kenny C. Brooks, for Respondent James A. Frieden.

HARUTUNIAN, J.^*

INTRODUCTION

This opinion resolves three appeals. Two are brought by Pierre Richard, who was the plaintiff in the proceedings styled Pierre Richard v. James A. Frieden and Denise Tukes (Super. Ct. L.A. County, 2020, No. 19STCV44270) (the 270 Action). We refer to these appeals as the 270 Appeals. The third appeal is brought by Denise Tukes, who was a petitioner in the proceedings styled In re Adeline R. Bennett, M.D. Trust DTD 3/30/2001 (Super. Ct. L.A. County, 2020, No. BP115475) (the 475 Action). We refer to this appeal as the 475 Appeal. The 475 Appeal also encompasses a cross-appeal by Richard and his counsel, Robert Brown.

In the 270 Action, the trial court sustained special motions to strike Richard's complaint against Tukes and her counsel, James Frieden, pursuant to Code of Civil Procedure section 425.16, subdivision (b)(1)¹ (i.e., anti-SLAPP motions). The trial court further awarded Tukes and Frieden attorney fees and costs pursuant to section 425.16, subdivision (c)(1).

The first 270 Appeal (No. B308337) is of the trial court's judgment following its order on the anti-SLAPP motions. We agree with the trial court that Richard failed to demonstrate a probability of prevailing on the merits in the 270 Action because, under the circumstances presented, he lacked standing to bring a malicious prosecution claim with respect to an action that had not been prosecuted against him. The trial court's judgment is therefore affirmed.

The second 270 Appeal (No. B312086) is of the trial court's order awarding Tukes and Frieden attorney fees and costs in prosecuting their anti-SLAPP motions. As we find no legal error or abuse of discretion, the trial court's order is affirmed.

Finally, the 475 Appeal (No. B307242) is of an order entered by the probate court dismissing Tukes's creditor's petition for a finder's fee in the 475 Action. This order was rendered primarily on a misapplication of the doctrine of issue preclusion. We reverse this order and remand to the probate court for further proceedings. By their cross-appeal, Richard and Brown appeal an order directing Brown to pay expenses for repeated violations of the probate court's page limit rules. We find that the probate court acted within its authority in directing such payment and therefore affirm.

BACKGROUND

Pierre Richard is one of two beneficiaries of the Adeline R. Bennett, M.D. Trust DTD 3/30/2001 (the Bennet Trust). The other beneficiary is Louise Clare, who is the mother of Denise Tukes.

The Bennet Trust co-owned with the Pitts Grandchildren's Trust (the Pitts Trust) vacant real property in Santa Fe Springs, California (the Property). Owing to pollution from prior use, the Property had been designated a federal "Superfund" site. In 2006, the trustee of the Bennett Trust² and the trustee of the Pitts Trust³ (the Bennett Trustee and the Pitts Trustee, respectively, and the Trustees, collectively) entered into a settlement agreement whereby they agreed they would sell the Property. But the Trustees apparently made no progress toward effectuating a sale for over a decade.

Frustrated by their lack of progress, Tukes, then a college student, took it upon herself to find a buyer. With the knowledge and support of the Bennett Trustee, she identified potentially interested parties, contacted them with information about the Property, and ultimately introduced the Trustees to a ready and willing buyer, CenterPoint Properties (CenterPoint). Tukes did so despite not being a licensed real estate broker. CenterPoint ultimately paid $13 million for the Property in or after December 2018. As there was no broker, the Trustees paid no brokers’ commission in connection with the sale.

Once the terms of the sale had been agreed by the Trustees and CenterPoint, but prior to its closing, Tukes made demands on the Trustees for a finder's fee. Tukes's demand went unsatisfied. The proceedings below ensued.

I. Background Specific to the 270 Appeals

In late 2018, Tukes, through Frieden as her counsel, filed a complaint against the Trustees for compensation on account of her efforts in helping to sell the Property. This commenced an action styled Denise Tukes v. Marvin C. Pitts, Jr. and Stan R. Mandell (Super. Ct. L.A. County, 2020, No. 18STCCV09049) (the Tukes Action).

Though he was not named a defendant in the Tukes Action, Richard filed a two-page answer generally denying the allegations of Tukes's first amended complaint on March 12, 2019. He did so without leave to intervene. As a result, Richard was never named a party in the Tukes Action and was specifically identified on the court's docket as a "non-party" to the proceedings.

On April 15, 2019, Tukes filed requests for dismissal with respect to (i) claims against the Bennett Trustee; and (ii) "any claims against [Richard]." The court granted both requests. The Pitts Trustee was thereafter the sole defendant in the Tukes Action.

The Pitts Trustee subsequently removed the Tukes Action to federal court and settled with Tukes in August of 2019. In September 2019, pursuant to the settlement agreement, Tukes dismissed the Tukes Action with prejudice by filing a bare notice of dismissal in the federal district court pursuant to rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.

Based on the Tukes Action, and despite never having been sued by Tukes, Richard sued Tukes and Frieden for malicious prosecution in December of 2019, thereby commencing the 270 Action. In response, Tukes and Frieden filed separate special motions to strike Richard's complaint pursuant to section 425.16, subdivision (b)(1). Tukes and Frieden argued, among other things, that Richard lacked standing to bring a malicious prosecution action with respect to a lawsuit to which he was not a party. Richard opposed the motion on various grounds but failed to address Respondents’ standing arguments.

The trial court concluded that Richard had failed to show a probability of prevailing in the 270 Action because he failed to show he had been a party to the Tukes Action and thus lacked standing to sue on account of its prosecution. On the basis of this order, both Frieden and Tukes requested attorney fees pursuant to section 425.16, subdivision (c)(1). The trial court granted their requests in the amounts of $49,071.50 and $26,905, respectively.

Richard appeals these awards and the resulting judgment. ( §§ 425.16, subd. (i), 904.1, subds. (a)(1), (a)(2).)⁴

II. Background Specific to the 475 Appeal

After settling the Tukes Action with the Pitts Trustee, Tukes filed a creditor's petition pursuant to section 17000 of the Probate Code against the Bennett Trustee in the 475 Action (which action was already pending in connection with the administration of the Bennett Trust). By her petition, Tukes sought a $350,000 finder's fee on account of her efforts in effectuating the sale of the Property under theories of breach of implied contract and quantum meruit.

Richard, in his capacity as a beneficiary of the Bennett Trust (and thus an interested party pursuant to Probate Code section 48 ), responded to Tukes's petition with a motion for judgment on the pleadings. The probate court granted Richard's motion but gave Tukes leave to amend. Tukes amended, adding a count for breach of an oral contract, and Richard again moved for a judgment on the pleadings. The trial court granted this second motion without leave to amend on the bases that (a) Tukes's dismissal of the 270 Action with prejudice barred all three counts of the 475 Action under the doctrine of issue preclusion; and (b) Tukes's count for quantum meruit was invalid as pled. Tukes appeals the resulting dismissal of her claim. ( Prob. Code, § 1300, subd. (d).)

Finally, in the course of the 475 Action, Tukes filed a motion for sanctions against Robert A. Brown, counsel for Richard, based on Brown's repeated failures to comply with court rules. The probate court denied the motion for sanctions but ordered Brown to pay Frieden expenses in the amount of $4,000. Richard and Brown cross-appeal from this order in the 475 Appeal. ( § 904.1, subd. (b).)

DISCUSSION

I. We Affirm the Trial Court's Judgment and Orders Challenged in the 270 Appeals

A. Applicable Standards of Review

We review the trial court's disposition of an anti-SLAPP motion de novo. ( Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043, 263 Cal.Rptr.3d 903.) We also review de novo any legal issues properly raised on appeal of a fee award. ( Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 690, 279 Cal.Rptr.3d 175 ( Reck ); Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1016–1017, 166 Cal.Rptr.3d 370.) However, where satisfied that a party is entitled to fees and costs pursuant to section 425.16, subdivision (c)(1), we review the amount of the award for abuse of discretion. ( Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322, 81 Cal.Rptr.3d 866.)

B. Analysis

1. The Trial Court Properly Granted Respondents’ Anti-SLAPP Motion

The trial court struck Richard's complaint against Tukes and Frieden pursuant to section 425.16 because Richard failed to show a probability of success in the 270 Action. First, the trial court concluded that the act of commencing the Tukes Action—the conduct complained of in the 270 Action—was an activity protected by section 425.16. (Se...