November 16th Newsletter

LIABILITY UPDATE
November 16, 2007

In Rohde v. Wolf 2007 Daily Journal D.A.R 12331, the Second Appellate District of the California Court of Appeal stated:

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.

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

On February 10, 2006, defendant wrote a letter to T. Randolph Catanese, plaintiff’s 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.”

On April 17, 2006, Catanese, plaintiff, plaintiff’s husband, and defendant met and agreed that certain real property located in Chatsworth 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. 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. 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 Wolf 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.” In his declaration in support of his anti-SLAPP motion, defendant stated, “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.”

Plaintiff and her husband filed an action alleging various causes of action against Metsos. Plaintiff filed a separate action against defendant, alleging that defendant’s voice mail messages to Weiss defamed plaintiff and constituted slander per se. Defendant filed his anti-SLAPP motion to strike plaintiff’s complaint in her slander per se action. The trial court denied the motion. Defendant appealed, and the Court of Appeal reversed.

The court observed that “[t]he 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.” 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.’ ”

After pointing out that, “Recently, the Supreme Court stated that ‘[a] prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration’ [Citations.] (Action Apartment Assocation, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232.),” the court first found that defendant’s voicemail messages to Weiss were statements made in connection with an asset that was the subject of the dispute in which both plaintiff and defendant threatened litigation. “In short, the spectre of litigation loomed over all communications between the parties at that time. Thus, the messages concerning the subject of the dispute and threatening appropriate action in that context had to be in anticipation of litigation ‘contemplated in good faith and under serious consideration.’ (Action Apartment Association, Inc. v. City of Santa Monica, supra, 41 Cal.4th at pp. 1251-1252.) Accordingly, defendant’s communications in issue satisfied his burden under the first step in applying the anti-SLAPP statute by establishing that his conduct was protected activity under that statute.”

Addressing the “probability of prevailing element” of an anti-SLAPP motion, the court observed that the litigation privilege in section 47 applies to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Prelitigation statements are protected under section 47 when they are made in connection with a proposed litigation that is “contemplated in good faith and under serious consideration.”

As discussed above, whether defendant’s voicemail messages to Weiss are privileged under section 47 appears to be determined under the test applicable to whether the statements are protected activity under section 425.16. . . . Because we have held that the statements were a protected activity under the anti-SLAPP statute, they are also privileged under section 47 as statements made in anticipation of litigation “contemplated in good faith and under serious consideration.” . . . That privilege provides a substantive defense to plaintiff’s slander per se action. . . . Plaintiff cannot meet her burden under the second step in applying the anti-SLAPP statute of demonstrating a probability of prevailing—i.e., “ ‘a prima facie showing’ ”—in her slander per se action. . . . Accordingly, the trial court erred in denying defendant’s anti-SLAPP motion.

----Andrea Lynn Rice