Metropolitan News-Enterprise


Monday, April 4, 2005


Page 3


Court of Appeal Finds Order Overruling Demurrer Appealable


By a MetNews Staff Writer


The Court of Appeal for this district has entertained an appeal from an order overruling a demurrer, an order generally attacked only by writ petition.

Justice Patti Kitching, in an unpublished opinion filed Wednesday, said the order by Los Angeles Superior Court Judge Peter P. Espinoza overruling a demurrer based on the litigation privilege would be reviewed in light of the procedural posture. The litigation privilege was asserted in tandem with an anti-SLAPP motion, the denial of which is expressly appealable by statute, she explained.

In a footnote, Kitching wrote:

“Pursuant to Code of Civil Procedure section 425.16, subdivision (j), the order denying a special motion to strike is appealable.  In addition, pursuant to Civil Code section 1714.10, subdivision (d), the order overruling defendants’ demurrers filed pursuant to section 1714.10, subdivision (a), is also appealable.  Finally, because appellants raised the issue of the application of Civil Code section 47, subdivision (b) in the same demurrer raising the issue of the application of Civil Code section 1714.10, we also address the Civil Code section 47 issue on appeal.  (Cf. Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 604, fn. 4.)”

In the Evans case, the court did not consider the applicability of the litigation privilege, saying in a footnote:

“In addition to section 1714.10, appellants’ demurrer also challenged the conspiracy count on the ground that it dealt with conduct covered by the litigation privilege of section 47. Our direction to the trial court to strike the pleading to which the demurrer was directed moots appellants’ contention that its privilege claim should have been sustained.

“Nor will we address respondents’ arguments seeking to overthrow portions of the trial court’s order sustaining appellants’ demurrers to other causes of action because subdivision (d) does not authorize review of matters apart from issues related to section 1714.10.”

Kitching’s opinion affirms Espinoza’s overruling of demurrers and his denial of a motion to strike under the anti-SLAPP statute. Appealing from the orders were the defendants, the Encino law firm of Gray, York & Duffy (now Gray, York, Duffy & Rattet) and Redding attorney Michael Cogan.

The law firm and Cogan has been sued for invasion of privacy by Irvine attorney David L. Sharp. In earlier litigation, Sharp was the plaintiff, Cogan was the defendant, and Gray, York & Duffy represented Cogan.

Cogan allegedly obtained a CD rom containing the content of Sharp’s computer, impermissibly copied through false pretenses by a person working with the defense. The law firm, purportedly came into possession of the CD rom.

In rejecting the contention that the litigation privilege shields the defendants from liability in connection with its amassing of evidence in the earlier proceeding. Kitching said:

“Civil Code section 47, subdivision (b), does not apply to immunize defendants’ alleged behavior because that statute applies to communication, not conduct.”

Explaining why the anti-SLAPP statute does not apply, she said:

“[B]ecause plaintiff’s claim arises from defendants’ act of allegedly receiving stolen property, not from any act in furtherance of defendants’ right of petition or free speech under the United States or California Constitution, the trial court properly refused to strike plaintiff’s cause of action for invasion of privacy.”

She went on to observe:

 “Receipt of stolen property is a crime, not a protected activity.  (Pen. Code, § 496.)  In fact, Penal Code section 502 outlaws ‘unauthorized access to computers, computer systems, and computer data.’ ”

Randall A. Miller, Lori S. Blitstien and Douglas J. Collodel of Sedgwick, Detert, Moran & Arnold  were attorneys on appeal for Gray, York & Duffy and a partner, William F. Flahavan. Sharp was represented by himself and by Richard A. Caillouette Sr. Cogan acted in pro per.

Espinosa has scheduled a status conference in the case for May 26.

Copyright 2005, Metropolitan News Company