Tuesday, September 10, 2019
Court of Appeal:
Opinion Says Cross-Complaint, to the Extent It Is Based on Communication From Lawyer for One of the Litigants, Advising Financial Institution of Client’s Demand, Was a SLAPP
By a MetNews Staff Writer
The Court of Appeal for this district has declared, in connection with ongoing litigation in which two partners are suing each other, that the portion of a cross-complaint that seeks to impose liability based on a letter to a bank which caused the partnership assets to be frozen is protected speech and must be stricken under the anti-SLAPP statute.
Justice Brian Hoffstadt of Div. Two wrote the opinion, which was filed Friday and not certified for publication. It partially reverses a decision by Los Angeles Superior Court Judge Lisa Hart Cole, who denied in its entirety an anti-SLAPP motion filed by cross-complainant Anastasiya Kolcheva.
The lawyer for the plaintiff, Melissa Rose, on July 7, 2017, sent a letter to Bank of America advising that Kolcheva had opened an account with it containing partnership funds; that Rose had been denied access to that account; that a lawsuit against Kolcheva concerning the partnership was pending; and that Rose demanded that no funds from the account be released without her written authorization.
She subsequently declined to retract her demand to the bank.
Loss of Client
The partnership, RoKo Media Group, LLC, advised clients on placement of advertisements. When its major client, San Diego Zoo Global, learned that funds it had advanced to RoKo to pay for ads was frozen, it severed its relations with the firm.
Among the mattters raised in the cross-complaint is “causing a freeze of RoKo’s bank accounts.”
Cole’s view was that the harm was caused by the bank’s act in freezing the account rather than the act of Rose’s attorney in making the demand.
Hoffstadt disagreed. He said the sending of the letter induced the bank to take its action and was “core, injury-producing conduct.”
Wording of Statute
The jurist pointed out that the anti-SLAPP statute, Code of Civil Procedure §425.16, renders protected “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” and said:
“Because the letter was a ‘writing made in connection with an issue under consideration or review by a...judicial body,’ Rose’s act in sending that letter and refusing to retract it…constitutes protected activity under the anti-SLAPP law.”
While noting that not every utterance by a lawyer in the course of litigation is protected, “an attorney’s act in sending a letter to a third party with an interest in anticipated or ongoing litigation qualifies as protected activity,” Hoffstadt said, adding:
“This is especially so where, as here, the letter to the third party is sent as a means of mitigating potential damages or preserving the availability of assets necessary to satisfy a possible judgment.”
Having determined that the cross-complaint, so far as it concerns the letter to the bank, is protected conduct, Hoffstadt turned to the second prong of the anti-SLAPPP statute: the plaintiff’s—or, here, cross-complainant’s—burden to show that “there is a probability that” he or she “will prevail on the claim.”
The litigation privilege, Hoffstadt said, spells defeat for Kolcheva on the merits. That privilege, contained in Civil Code §47, applies to a publication made in a “judicial proceeding” (and other official proceedings).
The California Supreme Court in 1993 held in Rubin v. Green that for the privilege to pertain, a communication need have only “some relation” to pending or anticipated litigation, Hoffstadt recited, declaring:
“Rose’s letter to the bank informing it of her ongoing lawsuit and asking the bank to freeze the account because ownership of its contents is disputed most certainly has ‘some relation’ to ongoing litigation. As such, Kolcheva may not seek to hold Rose liable for sending it.”
The case is Rose v. Kolcheva, B288189.
Gary J. Goodstein and Bruce A. Berman of the West Los Angeles law firm of Goodstein & Berman represented Rose. Century City attorney Jason R. Bendel acted for Kolcheva.
Copyright 2019, Metropolitan News Company