Metropolitan News-Enterprise


Monday, May 11, 2015


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C.A. Upholds SLAPP Ruling for Lawyers in ‘Fight to the Death’




A lawsuit by a controversial Hollywood producer against attorneys who represented an adversary in contentious litigation was correctly thrown under the anti-SLAPP statute, the Court of Appeal for this district has ruled.

Div. Eight Friday certified for publication its May 1 ruling in favor of the firms Stroock & Stroock & Lavan and Levene, Neale, Bender, Yoo & Brill L.L.P.  The panel agreed with Los Angeles Superior Court Judge Michael Linfield that David Bergstein’s suit arose from constitutionally protected litigation activity, and that Bergstein cannot prevail on the merits because his claims are barred by the litigation privilege, and also by the statute of limitations.

Bergstein has run a number of film distribution companies, including Franchise Films and ThinkFilm. His ongoing battle with financier David Molner, who made a number of loans to Bergstein and his affiliated companies between 2007 and 2009, has spawned more than 90 lawsuits, the Hollywood Reporter reported.

‘Fight to the Death’

David Rosansky of Stroock, and David Neale, Irving Gross and Beth Young of Levene Neal, have represented Molner and his companies, including Aramid Entertainment Fund Limited, in what Bergstein has described as a “fight to the death” litigation struggle. Bergstein sued the attorneys in 2012, claiming—in addition to various “colorful but irrelevant matters,” Justice Elizabeth Grimes wrote for the Court of Appeal—they had aided and abetted his former lawyer, Susan Tregub, to injure him through use of “confidential, privileged, and propriety information” that Tregub had no right to disclose.

At the time the suit was filed, Bergstein was already in litigation against Tregub, who allegedly threatened to “bring [him] down” after a disagreement regarding fees. He subsequently won a multimillion dollar verdict against her.

In granting the anti-SLAPP motion, Linfield issued a 39-page decision and awarded the defendants more than $150,000 in attorney fees.

Flatley Distinguished

Grimes said the trial judge was correct, rejecting the defense claim that the general rule that litigation constitutes protected activity for purposes of the anti-SLAPP statute does not apply in the case due to the “illegality” exception of Flatley v. Mauro (2006) 39 Cal.4th 299.

That case held that an attorney’s threat to sue an entertainment celebrity on behalf of a woman who claimed she was raped, and to disseminate information about the case if the claim was not settled, was “criminal extortion as a matter of law,” not protected speech. Grimes, however, noted that subsequent cases have limited Flatley to crimes, and that Bergstein does not allege that the defendant lawyers committed crimes.

In going on to conclude that Bergstein cannot win on the merits, Grimes rejected the contention that the suit was about “noncommunicative acts” to which the litigation privilege does not apply.

“[T]he plaintiffs here…do not identify any of defendants’ conduct that was not a communication made in a judicial proceeding (or prior thereto) to achieve the objects of the litigation,” the justice wrote. “Simply claiming that ‘aiding and abetting Tregub’s breach of fiduciary duty and facilitating Tregub’s breach of contract’ is ‘non-communicative conduct’ does not make it so.”

The defendants, the justice continued, “have established all the elements necessary to assert the litigation privilege,” including that the defendants’ alleged tortious actions were intended to aid in bringing litigation against Bergstein and his companies, that they were made in or in anticipation of litigation, and were connected or logically related to the litigation.

Statute of Limitations

As for the statute of limitations, Grimes agreed with the trial judge that the one-year limitation on the filing of suits against attorneys regarding “professional services” applied, and that the period began to run more than two years earlier, as demonstrated by the allegations of Bergstein’s complaint against Tregub.

“It is not correct, as a matter of fact and of law, to say that ‘Bergstein’s aiding and abetting claims do not arise from the defendants’ performance of their professional services….,’”  the justice wrote. “Plaintiffs’ complaint shows they do as a matter of fact:  as we have seen, virtually all of defendants’ allegedly tortious conduct occurred in the performance of legal services for their clients.”

Attorneys on appeal were Horvitz & Levy’s Frederic D. Cohen, Felix Shafir, and Jeremy B. Rosen, along with Alex M. Weingarten and Eric J. Bakewell of Weingarten Brown, for Bergstein; Brad D. Brian, Michael R. Doyen, Lisa J. Demsky and Manuel F. Cachan of Munger, Tolles & Olson for Stroock, and Roy G. Weatherup of Lewis Brisbois Bisgaard & Smith, along with David B. Parker of Parker Shumaker Mills, for Levene Neale.

The case is Bergstein v. Stroock & Stroock & Lavan LLP, 15 S.O.S. 2291.


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