Wednesday, October 18, 2017
Court of Appeal:
Disbarred Lawyer’s Emotional Distress Suit Properly Dismissed
Opinion Rejects Contention That Threat to Report Litigation Conduct to the State Bar Amounted to Extortion, Upholding Granting of Anti-SLAPP Motion
By a MetNews Staff Writer
A disbarred lawyer yesterday lost his bid in this district’s Court of Appeal to gain reinstatement of an action against his former opposing counsel and her client for intentional infliction of emotional distress based on a threat to report his litigation conduct to the State Bar.
Div. Eight, in an unpublished opinion by Justice Laurence D. Rubin, affirmed a judgment of dismissal by Los Angeles Superior Court Judge Michelle Rosenblatt after she sustained an anti-SLAPP motion brought by Greyhound Lines, its in-house counsel, Tricia Martinez, and others.
The losing party was Martin Barnett Reiner, who was disbarred April 21 after ignoring a suspension imposed on him effective Oct. 10, 2014.
Exchange of Emails
It was on Oct. 1, 2014, that Martinez sent an email to Greyhound’s retained counsel in a case seeking advice on where to direct a complaint against Reiner who was seeking to use high-pressure tactics to obtain a “quiet” settlement. Whether intentionally or through inadvertence, a copy of the email went to Reiner.
Reiner shot back to Martinez that “it is a crime in California, extortion[,] to communicate a threat to report an attorney to the State Bar....”
“Martin, I have been trying desperately to refrain from reporting you to every court, bar association and any other entity that has responsibility over attorneys in California. I have lost patience. You can expect to be responding to (additional) professional violations. Also, you are being blocked from sending emails to Greyhound or any related entity. You should be more careful about accusing others about not fulfilling their professional responsibilities. It is precisely people like you who give our profession a bad reputation.”
Trial Court Action
Reiner sued based on the threat, contained in the two emails, to report him to the State Bar In granting the anti-SLAPP motion, Rosenblatt awarded attorney fees and other costs to Martinez, Greyhound, and a related entity in the amount of $17,610.
Reiner filed further motions and purported to add Rosenblatt as a defendant.
In his appeal, Reiner argued that the first prong of the anti-SLAPP statute was not met because extortion is not protected activity. He cited the California Supreme Court’s 2006 opinion in Flatley v. Mauro where it was declared that when “defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.”
“Accordingly, in order for the Flatley exception to apply, a defendant must concede, or the evidence conclusively establish, that the targeted speech was illegal as a matter of law. Here, respondents did not concede, and the evidence did not conclusively establish, that Martinez had attempted to commit extortion.”
The only proof of that intent, Rubin observed, was in the form of declarations by Reiner. The jurist wrote:
“On appeal, Reiner only makes the argument that the court erroneously sustained the objection because his statement was based on personal knowledge, and nothing stated in his declaration was ‘argumentative, conclusory and speculative.’ Such conclusory arguments fail to establish trial court error….As the trial court struck Reiner’s evidence that Martinez’s emails had been sent with the purpose of extorting him to drop his client’s claims, he did not meet his burden of showing the Flatley exception applied.”
“In fact, the evidence—including a plain reading of the emails—suggested that the emails were sent in response to Reiner’s demands for ‘hush money.’ Although it is theoretically possible that Martinez sent the emails with the intent to induce Reiner to drop his client’s claims, respondents did not concede this and the evidence did not conclusively establish it. On these grounds, we conclude the underlying conduct involved speech in furtherance of Martinez’s First Amendment rights.”
Litigation Privilege Cited
With respect to the second prong of the anti-SLAPP statute—requiring that the plaintiff show a probability of success—the defendants contended that he could not surmount the litigation privilege.
Rubin said it isn’t necessary to discuss the privilege because it is clear that no cause of action exists for intentional infliction of emotional distress.
That tort requires “outrageous” conduct, he noted, citing the California Supreme Court’s 1993 decision in Potter v. Firestone Tire & Rubber Co. which said, quoting precedent, that “[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”
Rubin declared “in light of Reiner’s provocative emails, Martinez’s emails as a matter of law fall far short of conduct that is so ‘outrageous’ ” as to meet that standard.
The case is Reiner v. Greyhound Lines, B265943.
Reiner was in pro per. Roy G. Weatherup, Kenneth C. Feldman, Caroline E. Chan and David D. Samani Lewis Brisbois Bisgaard & Smith represented Greyhound Lines Inc., a related company, FirstGroup America, Inc., and Martinez.
Also sued were attorney Ian Wade and his firm, Littler Mendelson, P.C., which were retained counsel for Greyhound in the action in which Reiner was lawyer for the plaintiffs. and Stephen T. Owens and Emily L. Wallerstein of Squire Patton Boggs were counsel on appeal.
Reiner has frequently been a party in Court of Appeal cases in this district.
On Sept. 16, 2010, Div. Three upheld an order enjoining him from continuing to harass Los Angeles attorney Susan Kaplan, who was his opposing counsel in a workers’ compensation case. Justice Richard Aldrich wrote that “Reiner’s conduct far exceeded the scope of civility.”
He wrote that “Reiner’s conduct of following opposing counsel around the courthouse, yelling, using profanities, degrading, demeaning, and threatening opposing counsel, is neither quiet nor related in any conceivable fashion to petitioning for redress of grievances.”
Div. Eight on March 8, 2012, affirmed the dismissal, based on the granting of an anti-SLAPP motion, of another action Reiner brought against opposing counsel, her law firm, and her client He sued for defamation and fraud based on attorney Sheila Kashani commenting to a representative of his client, Pelican Products, Inc., that he is “unprofessional,” “unethical” and “Reiner’s efforts as an attorney on behalf of Pelican Products, Inc. were an utter waste of the resources of Pelican Products, Inc.”
Presiding Justice Tricia Bigelow wrote, after finding the comments protected, declared them to be nonactionable, writing:
“The purported statement that Reiner was unprofessional and that Pelican was wasting its money were critiques of Reiner’s performance in the workers’ compensation case….[S]uch comments, even if made, would be difficult to prove true or false. Indeed, it is unclear what the allegedly defamatory statements meant. The comment that Reiner was unprofessional, for example, could have been a review of his abilities as an attorney or his behavior before the judge during the proceeding.”
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