Thursday, April 4, 2019
Court of Appeal:
Defendants, Lawyer, Must Pay $44,485 for Frivolous Appeal, Further Sums Must Be Assessed by Superior Court on Remand, Justice Collins Writes
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that the defendants in an action alleging they communicated falsehoods which resulted in diminishment of the value of the plaintiff’s real property filed an anti-SLAPP motion was “absurd,” that the trial court failed to impose sanctions which were “mandatory,” and the defendants and their lawyers must pay $44,485 in sanctions on appeal.
Justice Audrey Collins of Div. Four wrote the opinion. It affirms Los Angeles Superior Court Judge Gerald Rosenberg’s denial of an anti-SLAPP motion brought by defendants Paul Colichman and David Millbern in response to an action against them by a neighboring landowner, Donna Sue Workman, but reverses his denial of sanctions.
Workman sued for intentional interference with contractual relations and prospective economic advantage, negligent interference with prospective economic advantage, conspiracy to defraud, and unfair business practices after the sale of her Bel Air property for $3.1 million fell through based on an announcement by the defendants that they might add a second story and neck to their house. This would have impeded the view from Workman’s property.
They had no such intention, Workman alleged, but were merely seeking to drive down the value of her property to the point they could afford to purchase it through a straw person. It was eventually sold for $2.6 million.
Workman opposed the defendants’ anti-SLAPP motion on the ground that the communication from the defendants as to their intent to construct on their property (made to Workman’s realtor) did not satisfy the first prong of the statute, Code of Civil Procedure §425.16, because it did not relate to a “matter of public interest.” The defendants responded that the case involves “issues of consumer protection and fraud, which necessarily impact a broad segment of society” and “relate to matters of consumer protection and public concern.”
In denying the special motion to strike, Rosenberg declared:
“This is a private matter; not a public issue or an issue of public interest.”
Fourth District Opinion
Her opinion twice quotes a passage from a 2003 Court of Appeal decision from the Fourth District’s Div. Three in Consumer Justice Center v. Trimedica International, Inc. There, Consumer Justice Center (“CJC”) sued Trimedica International, Inc. over claims that its product, a pill called Grobust, caused breast enlargement, and the defendant brought an anti-SLAPP motion.
In an opinion affirming a denial of the motion, Justice Eileen Moore said:
“CJC suggests a hypothetical regarding false statements made in the course of a real property sale. Blackacre sells a house to Whiteacre, and Whiteacre sues, claiming defendant misrepresented the square footage. Blackacre brings a special motion to strike, claiming his speech involves a matter of public interest, because millions of Americans live in houses and buy and sell houses. CJC correctly suggests that applying the anti-SLAPP statute in such a case would be absurd.”
In yesterday’s opinion, Collins wrote:
“A special motion to strike is no more applicable here than it was in the Blackacre hypothetical: Information about the views from a private residence affecting only those directly interested in buying or selling that house is not an issue of public interest.”
She went on to say:
“As in the Blackacre hypothetical…, application of the anti-SLAPP statute to these facts would be ‘absurd.’ Thus, the anti-SLAPP motion was frivolous.”
Purpose of Delay
There was also uncontroverted evidence that the defendants acted for purpose of delay, Collins noted. She pointed to a portion of the anti-SLAPP statute which provides:
“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
Noting the word “shall,” Collins said:
“Under these circumstances, an award of attorney fees was mandatory.”
Workman sought sanctions based on a frivolous appeal. Collins said the request was well grounded, announcing:
“Sanctions are imposed upon defendants Colichman and Millbern, as well as their counsel of record, Todd S. Eagan of Lavely & Singer Professional Corporation, jointly and severally, in the amount of $35,985.00, to be paid to Workman, and $8,500.00 to be paid to the clerk of this court. Defendants’ counsel of record and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur.”
The case is Workman v. Colichman, 2019 S.O.S. 1573.
Eagan was joined by Brian G. Wolf and David B. Jonelis of the Century City firm of Lavely & Singer in arguing for reversal. Alan N. Goldberg and Peter Tran of the Encino firm of Stern and Goldberg represented Workman.
Colichman, a media entrepreneur, founded the gay cable channel, Here!, And is chief executive officer of Here Media, Inc. Millbern is an actor and producer.
Copyright 2019, Metropolitan News Company