Yeager v. Holt

• Decision Date: 16 May 2018
• Docket Number: C079897
• Citation: 23 Cal.App.5th 450,232 Cal.Rptr.3d 693
• Court: California Court of Appeals Court of Appeals
• Parties: Charles E. YEAGER et al., Plaintiffs and Respondents, v. Peter HOLT et al., Defendants and Appellants.

23 Cal.App.5th 450

232 Cal.Rptr.3d 693

Charles E. YEAGER et al., Plaintiffs and Respondents,

v.Peter HOLT et al., Defendants and Appellants.

C079897

Court of Appeal, Third District, California.

Filed May 16, 2018

Holt Law Firm and Peter T. Holt, in pro. per., for Defendants and Appellants.

Williams Iagmin and Jon R. Williams, San Diego, for Plaintiffs and Respondents.

Duarte, J.Defendants Peter Holt, Holt Law Firm, and Bethany Holt (collectively Holt, except as noted) appeal from an order denying their special motion to strike (also known as an anti-SLAPP—Strategic Lawsuit Against Public Participation—motion).¹ Peter Holt and his law firm briefly represented Charles E. and Victoria Yeager (collectively Yeager, except as noted) and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager (Super. Ct. Nevada County, No. L76533).² Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. Holt moved to declare Yeager's suit to be a SLAPP suit. The trial court found this suit does not chill protected expressive conduct or free speech on an issue of public interest. We agree and affirm.³

BACKGROUND

The Yeagers are represented on appeal, but were self-represented in the trial court.

The Operative Complaint

The first amended complaint generally alleged that both Peter and Bethany Holt worked together at the Holt Law Firm in some capacity and that all three defendants were responsible for all of the actions and damages alleged.

The first claim, captioned "Breach of Fiduciary Duty," alleged Holt failed to communicate about the costs and risks of further litigation, concealed facts and acted negligently in discharging professional obligations. As an example, Peter Holt refused to sign a declaration supporting a motion for attorney fees in Yeager v. AT&T Mobility (E.D.Cal., Nov. 21, 2007, No. Civ. 07-2517), although Holt claimed in Holt v. Yeager that he was owed those same fees (inferentially, that he had in fact performed services for Yeager in that matter). This refusal allegedly resulted in Yeager not being awarded those fees in Yeager v. AT&T Mobility .

The second claim, captioned "Misrepresentation," incorporated prior allegations and alleged Holt misrepresented Holt's abilities and "the truth about payment" for services Yeager performed for Holt; however, no further details are alleged.

The third claim, captioned "Breach of Oral Contract," alleges Holt told General Yeager that Holt would pay for "various benefits and services" (otherwise undescribed) from Yeager, but breached this oral contract. It also alleged Holt represented that the firm would work on a pro bono basis, but did not do so.

The fourth claim, captioned "Misappropriation of Name," alleged that Holt used General Yeager's name on the firm's website without permission.

The fifth claim, captioned "Professional Negligence," alleged negligent representation in Yeager v. AT&T Mobility , but the only specific failing described was the alleged failure to sign the declaration supporting the motion for attorney fees.

Special Motion to Strike

After Holt had venue transferred, Holt filed the instant motion, claiming the suit was based on Peter Holt's successful suit for fees in Holt v. Yeager , and that his fee litigation was an "exercise of the Constitutional right of petition." As relevant here, he also alleged Yeager had no probability of success in this suit.

Holt alleged he briefly represented Yeager in 2009 and successfully sued Victoria Yeager in Nevada County for his fees (some $11,000), and defended the judgment on appeal to the Appellate Department of the superior court. Yeager had deposited nearly $17,000 with the court to forestall enforcement pending that appeal. (See Code Civ. Proc., § 917.1.)⁴ Victoria Yeager appears to have been represented by two different attorneys at different times during Holt v. Yeager . When Holt moved to release the deposited money, Yeager opposed his efforts while self-represented, including filing the original complaint in this case, and threatening to sue him "anew" if he prevailed. Holt was then sued herein. Because the operative complaint references actions in the collection case, Holt argued that it was based on his protected right to petition, i.e., to sue for his fees. Holt presented voluminous evidence to try to show that this suit lacks merit.

Holt's evidentiary submission in support of his motion shows that the court in Holt v. Yeager rejected Victoria Yeager's claim that Holt had agreed to work pro bono, and awarded Holt quantum meruit damages. In response to Holt's motion to release deposited funds, Victoria raised the claims of malpractice and breach of duty and misappropriation that are raised in this case, stated an intent to sue Holt for malpractice, and later Yeager filed the original complaint herein. Victoria opposed the motion to release the funds in part because "[t]he funds should remain with this Court until the directly related case [i.e., Yeager v. Holt ] is finally adjudicated." She also suggested General Yeager should have been named in Holt v. Yeager . She offered that if Holt paid the deposited money directly to charity and did not discuss the Yeagers with other people, no further litigation would ensue; otherwise Holt would be sued in "a related case."

Holt tried to get Bethany Holt out of this case by filing a declaration that—if believed—showed that she had nothing to do with the Holt Law Firm.

Opposition

Yeager opposed the motion, in part arguing the operative complaint was not based on Holt's protected conduct or expression, as neither misappropriating General Yeager's likeness nor the claims of malpractice and other professional failings were protected activities. Holt had represented Yeager in at least two matters, the Fort Knox and AT&T Mobility cases, each of which claimed that companies used General Yeager's fame for commercial purposes. Victoria filed a declaration asserting that both Peter and Bethany Holt had told her that Bethany Holt worked in the firm and that Victoria had discussed legal matters with Bethany Holt. The opposition contended that at least some of Holt's alleged improper actions occurred after Holt v. Yeager was tried.

Reply

Holt's reply asserted the opposition "makes granting the motion easy" because it did not rebut his claim that the action arose from protected activity, thereby shifting the burden to Yeager to show a probability of success, which Yeager had not done via admissible evidence. Holt elaborated on his legal theories, which are replicated on appeal and which we address in the Discussion, post .

Trial Court Ruling and Appeal

The trial court denied Holt's motion. The court found Yeager's malpractice claims did not chill Holt's right to sue Yeager. Nor did the misappropriation claim raise an issue of public interest because Yeager's claims of improper use of his fame for Holt's commercial purposes reflect a private dispute. Similarly, breaching an alleged contract to provide pro bono services did not arise from a protected activity. Based on these rulings, the court did not need to address whether Yeager had showed a probability of success.

Holt timely appealed. The appeal lies. (See § 425.16, subd. (i).)

DISCUSSION

The purpose of anti-SLAPP motions is to weed out lawsuits designed to stifle free speech or lawful expressive conduct. There is a two-step analysis. First, the trial court determines whether the movant has shown the action implicates protected speech or conduct. Second, if that has been shown, the court evaluates whether the opponent meets certain criteria, including showing a probability of prevailing. (See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1017, pp. 426-428 ; 1 Schwing, Cal. Affirmative Defenses (2d ed. 2017) Lack of Required Certificate etc., § 12:38, pp. 807-855.)

Holt's motion trips on the first step.

We certainly accept Holt's point that suing someone is an aspect of the right to petition the government and is therefore a protected activity. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 ; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 50-55, 61 Cal.Rptr.2d 694 [in the vexatious litigant context].) Holt's filing and prosecution to completion of Holt v. Yeager was protected conduct.

But our Supreme Court has emphasized that "a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060, 217 Cal.Rptr.3d 130, 393 P.3d 905 ; see Greco v. Greco (2016) 2 Cal.App.5th 810, 819-820, 206 Cal.Rptr.3d 501 ; Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1274, 175 Cal.Rptr.3d 17.) " ‘In order for a complaint to be within the anti-SLAPP statute, the "critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." [Citation.] To make that determination, we look to the "principal thrust or gravamen of the plaintiff's cause of action." [Citations.]’ " ( Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217, 227 Cal.Rptr.3d 848 ( Central Valley ); see Ulkarim , at p. 1274, 175 Cal.Rptr.3d 17.)

Holt claims that this suit is based on statements "made in judicial proceedings, and statements made in connection with issues under review by courts." He makes much of the fact that in ruling on an anti-SLAPP motion the trial court must consider the evidence submitted in connection with the motion, and not merely examine the face of the complaint. The...