Wednesday, July 17, 2019
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Court of Appeal:
Conversion Action Against Ex-Paramour Not a SLAPP Arising From Litigation
Rubin Says Cross-Complaint by Ousted Cohabitant for Retention of His Belongings Doesn’t Stem From Communications by Plaintiff’s Attorney in Her Palimony Action
By a MetNews Staff Writer
A man who is being sued for millions of dollars in a Marvin action by his former paramour has beaten off an anti-SLAPP motion in connection with his cross-complaint, with the Court of Appeal for this district declaring that his suit for the conversion of personal property he left behind in the home from which he was ejected is not based on protected conduct.
The opinion by Presiding Justice Laurence D. Rubin of Div. Five was filed Monday and was not certified for publication. It affirms an order by Los Angeles Superior Court Judge David Sotello.
Plaintiff Phyllis J. Kyle, 75, is suing Raymond J. Claridge, 70, individually and as trustee of his trust, and is also suing his corporation, Chp Enterprises, which, operating as Cinema Vehicles Services, supplies customized vehicles to the movie and television industries and others. She claims Claridge, founder and president of Chp, promised to pool his assets with hers and support her for life.
Kyle is seeking $6 million on a quantum meruit theory for building up the business.
Claridge, in turn, is suing Kyle, claiming she prevented him from moving much of his personal property from her Santa Clarita home in 2017. They had been romantically involved since 1984 although he had a wife.
Communications From Lawyer
Included in his communications with Claridge, Kyle’s lawyer put him on notice that his client claimed a one-half interest in the personal property and made a demand that he cease removing property. Claridge moved for leave to file a belated cross-appeal which Sotello granted, and Kyle responded with the anti-SLAPP motion.
Kyle cited portions of the anti-SLAPP statute, Code of Civil Procedure §525.16, which proclaim as protected activity “(1) any written or oral statement or writing made before a...judicial proceeding, or...(2) any written or oral statement or writing made in connection with an issue under consideration or review by a...judicial body....”
The cross-complaint, she asserted, grew out of post-litigation communications from her attorney to her former cohabitant.
Alleged Pilfering
In addition to suing for conversion, Claridge averred that within the past three years, Kyle pilfered his business financial documents, saying she “broke into the locked cabinets and removed Cross-Complainants’ personal records from the locked cabinets” on the premises. Kyle maintained in a declaration that she took papers from unlocked cabinets to give to her attorney for use in discovery.
She pointed to cases where a conversion was found to have satisfied the first prong of the anti-SLAPP statute—protected activity. But those cases, Rubin pointed out, involved a conversion of litigation documents.
He wrote:
“Ms. Kyle was not sued for litigation activity, she was sued for wrongfully retaining Mr. Claridge’s possessions when he moved out after a breakup, and for surreptitiously copying his private documents when he lived in her home.”
‘Square Peg’
Rubin added:
“In sum, Ms. Kyle cannot fit the ‘square peg’ of a garden-variety conversion action into the ‘round hole’ of protected litigation activity by means of a disputed, albeit creative, declaration. She has failed to meet her burden on the first prong of an anti-SLAPP motion.”
That determination obviated a need to deal with the second prong: whether the plaintiff could show a probability of prevailing on the merits.
In a footnote, Rubin broadly hinted that if sanctions had been sought, they would have been granted. He said:
“Ms. Kyle’s arguments are either frivolous or border on the frivolous. However, Mr. Claridge does not ask for sanctions, so we address the point no further.”
The case is Kyle v. Claridge, B289504.
Kyle’s lawyer in the trial court and on appeal is Richard A. Marcus of Valencia. Robert Leland Glushon of the Encino firm of Luna & Glushon is Claridge’s trial and appellate counsel; Sean M. Bryn of Luna & Glushon joined him on the brief in the Court of Appeal.
Marvin v. Marvin
In her action against Claridge, Kyle relies on the 1976 California Supreme Court decision in Marvin v. Marvin stemming from actress Michelle Triola’s “palimony” action against actor Lee Marvin, with whom she cohabited from 1965-70.
The opinion holds that “courts should enforce express contracts between nonmarital partners” for support or division of assets “except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services.” It adds that where there is no express contract, “courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.”
On remand, Los Angeles Superior Court Judge Arthur K. Marshall (since deceased) ordered Marvin to pay Triola $104,000 for “rehabilitation purposes,” but the award was upset by the Court of Appeal.
Triola and actor/comic Dick Van Dyke cohabitated for 35 years, until her death from lung cancer in 2009. Marvin had died in 1987.
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