Metropolitan News-Enterprise


Thursday, September 28, 2017


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C.A. Affirms Summary Judgment in Case It Terms ‘Bizarre’

Says Public Policy Precludes Enforcing a Promise, If It Was Made, to Pay $2 Million to a Man Induced to Commit Crime by a Friend, Who Then Tattled to Authorities in Exchange for Dropping DUI Charges Against Himself


By a MetNews Staff Writer


The Third District Court of Appeal has held that an oral promise by a man, now deceased, to set up a $2 million trust fund for someone he wronged, if it was made, would be unenforceable because the consideration for it was a commitment not to divulge the true facts concerning crimes.

The opinion, filed Tuesday and not certified for publication, affirms a summary judgment in favor of Sacramento attorney Louis J. Anapolsky, in his capacity as administrator of the estate of Richard Powers, who was an insurance company executive.

While Anapolsky’s brief in the Court of Appeal refers to “[t]his odd lawsuit,” Justice Andrea Lynn Hoch, in writing for the Third District, uses the description of “this bizarre case.”

She recites that its “distant origin…lies in the efforts of Richard Powers to escape prosecution by the Sacramento District Attorney’s Office for four counts of felony drunk driving,” providing this background:

“Fearing convictions would ruin him professionally, Powers sought to make a deal with the district attorney by which he would escape prosecution in exchange for acting as a confidential informant about another, bigger crime. Powers’s problem? He did not have a bigger crime to report. Undeterred, Powers made up a story that his friend, Marco Ambroselli, was illegally selling performance-enhancing drugs. When the district attorney deemed the information insufficient to stave off Powers’s prosecution, Powers decided to set up Ambroselli to sell a few ounces of cocaine. This ruse worked. The prosecution dropped the charges against Powers, and Ambroselli took the fall by spending several years in prison for the cocaine sale.”

Confesses Deeds

Powers eventually confessed to Ambroselli—who had assumed that his arrest was simply predicated on good police work—what he had done. Whether out of remorse or fear of Ambroselli, Powers began making monthly payments to him, and eventually agreed to set up the trust, which was drafted and approved by his attorney, but he suddenly died in 2012 before signing it.

Placer Superior Court Commissioner Michael Jacques granted summary judgment to Anapolsky after sustaining defense objections to nearly all of Ambroselli’s evidence and finding there were no triable issues of fact. He did not address policy considerations.

In a May 18 order setting the case for oral argument, the appeals court instructed:

“Counsel should be prepared to address the issue of whether the alleged agreement by Richard Powers to fund a trust for Marco Ambroselli violates public policy.”

Continued Silence Required

Hoch noted in Tuesday’s opinion that it was undisputed that any promise that might have been made by Powers to set up a trust was conditioned on Ambroselli’s continued silence.

The appellant’s opening brief says that the promise was “in consideration for Ambroselli not disclosing, and continuing not to disclose, Powers’ involvement in setting Ambroselli up to be arrested and ultimately convicted on drug charges.”

(The brief continues: “Ambroselli’s discretion in this regard allowed Powers’ career to thrive, netting him huge amounts of money, while Ambroselli spent four years in prison and has lived his life branded a felon.”)

Hoch wrote that even if Powers did make a promise to set up a trust in Ambroselli’s favor, “we would decline to enforce the agreement in this case,” explaining:

“The agreement’s aim is to continue to cover up Powers’s subterfuge on the criminal justice system—an aim that violates public policy and therefore cannot be enforced.”

Benefit of Scam

She elaborated:

“The purchased silence of Ambroselli would allow Powers both to continue to enjoy the benefit of a scam that allowed him to escape criminal liability for the drunk driving charges and to permanently cover up a scam that resulted in a manufactured crime.

“This court will not countenance an agreement intended to allow Powers to continue to benefit from his subterfuge on the criminal justice system. Thus, we invalidate the agreement regardless of whether Ambroselli can introduce evidence of breach of contract or an oral agreement to create a trust. In reaching this conclusion, we do not need to determine the exact scope of ‘discreditable facts’ for which an agreement to remain silent violates public policy….Instead, we determine only that an agreement that purchases silence about conduct that undermines the integrity of the criminal justice system is void.”

The case is Ambroselli v. Anapolsky, C080751.

Carl Calnero of the Sacramento law firm of Porter Scott was the attorney for Anapolsky. He commented yesterday:

“The original arrangement was made when [Powers] was alive of course. The ruling declares in essence that such a contract was void at its inception. So in other words it did not exist as a valid contract. As such it can’t later be enforced against his estate which had assets that the plaintiff Ambroselli sought to claim against with the lawsuit.”

Sacramento attorney Stephanie J. Finelli, who represented Ambroselli, remarked:

“The decision was not published. I may well move to ask it be published. So I am not sure what to say by way of comment. I think it is one more blow against people’s ability to freely contract and to protect their privacy contractually if that is what they choose to do.”


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