Metropolitan News-Enterprise


Friday, September 12, 2008


Page 1


Suit Alleging Theft in Aid of Litigation Not SLAPP—C.A.


By STEVEN M. ELLIS, Staff Writer


An attorney’s suit alleging his family members and their counsel stole documents from his office to use against him in a pending action was not a strategic lawsuit against public participation, this district’s Court of Appeal held yesterday.

Holding that San Pedro attorney Fred J. DiBernardo’s claims stemmed from the method of procuring the documents rather than any protected activity, and that the contents were therefore irrelevant, even if relevant to other litigation, Div. Eight, in an unpublished opinion, affirmed a trial court’s order denying an anti-SLAPP motion by DiBernardo’s sister, Rose DeLuca, her three daughters and their attorney.

DiBernardo filed suit for conversion against DeLuca, her daughters, and the attorney, Michael Leight of Long Beach, after allegedly learning they were in possession of copies of tax returns, articles of incorporation, a settlement agreement and other documents normally kept in files or vaults in DiBernardo’s office, and which bore his “received” stamp and handwritten notes.

Family Business

He said he became aware the defendants had the documents after Leight sent them to DeLuca and her daughters as part of Leight’s representation in their suit alleging DiBernardo and John DeLuca, Rose DeLuca’s son, surreptitiously established a competitive company while working at the family business, State Fish Company Inc.

John DeLuca had served as president of State Fish after the death of his father, and DiBernardo as general counsel, and DeLuca’s mother and sisters—who held an interest in the company and were involved in its operations—alleged the pair had taken money and resources to found what later became known as J. DeLuca Fish Co.

In response to DiBernardo’s complaint seeking possession of the documents and an injunction against their use, and accusing the defendants of receiving stolen property, the defendants filed motions to strike under Code of Civil Procedure Sec. 425.16, arguing that the claims arose from the filing and maintenance of their prior lawsuit, and that DiBernardo could not demonstrate a probability of prevailing on the merits.

Leight swore in declarations that he had not stolen anything from DiBernardo, and his client, Vanessa DeLuca, made a similar assertion, declaring that the documents “belong to State Fish,” the alleged source of the money and resources used to generate them.

No Permission Given

In opposition, DiBernardo argued the documents belonged either to him or his client, J. DeLuca Fish Co., that he had never given anyone permission to make copies, and that the defendants had used the documents in other litigation among the parties.

Los Angeles Superior Court Judge Andria K. Richey, now retired, denied the motions, agreeing with the defendants that the complaint arose out of their conduct in the underlying litigation, but holding  that DiBernardo demonstrated a probability of prevailing on his claims.

Presiding Justice Candace Cooper wrote on appeal that even though Richey’s conclusion was correct, her reasoning was not.

Noting precedent that “[i]ntrusive prelitigation conduct including procuring documents by improper means does not fall within the ambit of the anti-SLAPP statute,” Cooper said the defendants failed to establish that DiBernardo’s suit arose from a protected activity in furtherance of the right of petition or free speech under the state or federal constitutions in connection with a public issue.

“That the allegedly stolen items were documents (as opposed to other personal property) does not show that the alleged wrongful conduct was based on speech…,” she wrote. “Instead, the lawsuit stems from the method of procuring documents, which appellants do not argue or demonstrate is covered by section 425.16.”

Concluding that the court therefore did not need to consider whether the defendants’ alleged conduct was illegal, or to consider DiBernardo’s probability of prevailing because defendants had failed to meet their threshold burden, the panel affirmed the order denying the motions.

Justices Laurence D. Rubin and Patricia A. Bigelow joined Cooper in her opinion.

The case is DiBernardo v. Leight, B201266.


Copyright 2008, Metropolitan News Company