1. law, govt and politics

B255973
LASC Case No. BC499863
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT - DIVISION FIVE
_________________________________________
VAL WEST,
Plaintiff and Appellant
vs.
ARENT FOX LLP
Defendant and Respondent
_________________________________________
Appeal from the Superior Court of the State of California
County of Los Angeles
Honorable Teresa Sanchez-Gordon P LASC Case No. BC499863
_________________________________________
APPELLANT’S OPENING BRIEF
_________________________________________
KIRTLAND & PACKARD LLP
Robert A. Muhlbach - SBN 72036
Daniel J. Quisenberry - SBN 175059
2041 Rosecrans Avenue, Third Floor
Los Angeles, California 90245
Tel: 310 536-1000 P Fax: 310 536-1001
[email protected]
[email protected]
Attorneys for Plaintiff and Appellant
Service on the Attorney General for the State of California and the District
Attorney for the County of Los Angeles required by Business and
Professions Code § 17209 and Rule of Court 8.29
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.
The trial court first denies, then grants defendants’ antiSLAPP back motions, and awards attorney fees. This appeal
follows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATEMENT OF APPEALABILITY AND
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I.
II.
THE ANTI-SLAPP STATUTE DOES NOT APPLY TO
PLAINTIFFS' COMPLAINT BECAUSE DEFENDANTS’
CONDUCT IS ILLEGAL AS A MATTER OF LAW. . . . . 16
A.
The illegality exception bars a defendant who has
violated state law from using the anti-SLAPP statute to
defeat litigation arising from such conduct. . . . . . . . 16
B.
Conclusive evidence of the violation of any state
statute is sufficient to trigger application of the
illegality exception. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C.
Defendants undisputedly violated state statutes when
they knowingly encouraged, masterminded and abetted
JHA’s suing of West for privileged communications
between her friend and her attorney. . . . . . . . . . . . . 19
THE TRIAL COURT ERRED IN FINDING THAT VAL
WEST FAILED TO MAKE THE MINIMAL SHOWING OF
POSSIBLE MERIT FOR THE COMPLAINT. . . . . . . . . . . 20
A.
02396-00002 165372.03
To survive an anti-SLAPP motion, West need only
show that the complaint has minimal merit. All
evidence and inferences must be viewed in the light
most favorable to plaintiff. . . . . . . . . . . . . . . . . . . . . 20
i
III.
B.
Lack of Probable Cause - The Defamation Claim Was
Not Only Untenable, But It Has Been Ruled As Such
By Three (3) Different Courts . . . . . . . . . . . . . . . . . 23
C.
Plaintiffs made a prima facie case for malice under the
“reasonable attorney” standard and/or the subjective
malicious lack of probable cause analyses. . . . . . . . 28
ARENT FOX’S ATTEMPTS TO BESMIRCH THE CHARACTER
OF VAL WEST AND MR. DIZENFELD ARE FULL OF
UNTRUTH’S, AND SHOULD NOT DISTRACT FROM
WHETHER THE DEFAMATION CLAIM WAS PROPER. . . . . 37
A.
The Dizenfeld email stating that Val West and her
mother were not given glucose readings was not
“false”, as claimed by Arent Fox. . . . . . . . . . . . . . . . 37
B.
The Department of Social Services Investigations The True Story. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
C.
The “Trespass” Claim Was Trumped Up To Support
The Planned Complaint. . . . . . . . . . . . . . . . . . . . . . . 39
1. Ms. Roisman’s Testimony: . . . . . . . . . . . . 40
2. Ms. Betsy Kelly’s Testimony: . . . . . . . . . 46
IV.
THE ATTORNEY FEE AWARD SHOULD BE REVERSED
IF THE ORDER GRANTING THE ANTI-SLAPP MOTION
IS REVERSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
02396-00002 165372.03
ii
TABLE OF AUTHORITIES
CASES
Ball v. Rawles, (1892) 93 Cal. 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Brown, Winfield & Canzoneri v. Superior Court (2010) 47 Cal. 4th 1233
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Clark v. Superior Court (2011) 196 Cal.App.4th 37 . . . . . . . . . . . . . . . . . 19
Contemporary Services Corp. v. Staff Pro. Inc., (2007) 152 Cal. App.4th
1043 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 . . . . . 17
Flatley v. Mauro (2006) 39 Cal.4th 299 . . . . . . . . . . . . . . . . . . . . 16-18, 26
Fremont Reorganizing Corp. v. Faigin, (2011) 198 Cal.App.4th 1153 . . 22
Greene v. Bank of America (2013) 216 Cal.App.4th 454 . . . . . . . . . . . . . 30
Grewal v. Jammu (2011) 191 Cal.App.4th 977 . . . . . . . . . . . . . . . . . . . . . 21
Hagberg v. California Federal Bank, 32 Cal.4th at p. 361 . . . . . . . . . . . . 26
Hecimovich v. Encinal School Parent Teacher Organization (2012) 203
Cal.App.4th 450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204 . . . . 16
Hutton v. Hafif (2007) 150 Cal.App.4th 527 . . . . . . . . . . . . . . . . . 19, 31, 32
Marijanovic v. Gray, York & Duffy, (2006) 137 Cal.App. 4th 1262 . . . . . 23
Navellier v. Sletten (2002) 29 Ca1.4th 82 . . . . . . . . . . . . . . . . . . . . . . 16, 20
Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 . . . . . . . . . . . 22
Overstock. com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th
688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
02396-00002 165372.03
iii
Padres L.P. v. Henderson, (2003) 114 Cal.App.4th 495 . . . . . . . . . . 23, 28
Paul for Council v. Hanyecz (2001) 85 Cal.AppAth 1356 . . . . . . . . . 17, 18
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 . . . . 23, 28-30
Silberg v. Anderson (1990) 50 Cal.3d 205 . . . . . . . . . . . . . . . . . . . . . . . . . 26
Soukup v. Hafif (2006) 39 Cal.4th 260 . . . . . . . . . . . . . . . . . . . . . 16-19, 29
State Comp. Ins. Fund v. WPS, Inc., (1999) 70 Cal.App.4th 644 . . . . . . . 20
Swat-Fame v. Goldstein, (2002) 101 Cal. App.4th 613 . . . . . . . . . . . . 28, 32
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122
Cal.App.4th 1049 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 . . . . . . . 31, 32
Zamos v. Stroud (2004) 32 Cal.4th 958 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
STATUTES
Business and Professions Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
California Civil Code Section 47(b) . . . . . . . . . . . . . . . . . . . . . . . 12, 26, 27
California Code of Civil Procedure § 425.16 . . . . . . . . . . . . . . . . . . . 17, 19
California Code of Civil Procedure § 425.16(b)(3) . . . . . . . . . . . . . . . . . . 31
California Code of Civil Procedure § 425.16(c)(1) . . . . . . . . . . . . . . . . . . 50
California Code of Civil Procedure § 425.18 . . . . . . . . . . . . . . . . . . . 17-19
California Code of Civil Procedure § 425.18(b) . . . . . . . . . . . . . . . . . . . . 17
California Code of Civil Procedure § 425.18(h) . . . . . . . . . . . . . . . . . . . . 17
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RULES OF COURT
Rules Prof. Conduct, Rule 1-120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
MISCELLANEOUS
Black’s Law Dict. (7th ed. 1999), p. 750 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1158 (2005-2006 Reg.
Sess.) Aug. 16, 2005, pp. 11-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
02396-00002 165372.03
v
Case No. B255973
LASC Case No. BC499863
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT - DIVISION FIVE
_________________________________________
VAL WEST,
Plaintiff and Appellant
vs.
ARENT FOX LLP
Defendant and Respondent
_________________________________________
APPELLANT’S OPENING BRIEF
_________________________________________
INTRODUCTION
This appeal is from an order granting Arent Fox LLP’s AntiSLAPPback Motion to Strike Plaintiffs’ first and second causes of action
for malicious prosecution. That order eliminated the law firm from the
case.
The pertinent questions in this appeal can be stated as follows: Does
probable cause for a defamation lawsuit exist when a person copies an e-
02396-00002 165372.03
1
mail complaining about the actions of another to their own attorney?1
Further, would a reasonable attorney believe that a senior residence home
client could viably sue the daughter of a resident for defamation because an
e-mail complaining about the home’s care was copied to the daughter’s
attorney? At least three courts so far have ruled that the claim for
defamation brought by Arent Fox on behalf of the senior residence home
was untenable, including this Court of Appeal (when it upheld the striking
of that defamation claim from the prior lawsuit). Therefore, the “reasonable
attorney” test raised by the second question is really the only relevant area
for review. The prima facie evidence which was presented, and inferences
from that evidence, would clearly support a finding that the defamation
claim was maliciously prosecuted by Arent Fox. A reasonable attorney
would not have brought or continued to fight such a claim.
The answer here has broad implications regarding access to justice
and advice of counsel: Should clients be afraid of copying correspondence
with an offending party to their attorney, because they can be sued for
defamation? Do people have to be careful what they say or show to their
attorney about another person because it could conceivably provide grounds
for defamation?
These issues are especially sensitive where legal aid counsel is being
consulted, and in the area of senior residence home care. People seeking
non-profit legal aid should have access to legal counsel and advice, and
should be able to inform and communicate with their attorneys without fear
of repercussions. Further, the people seeking advice regarding senior
1
Probable cause for a defamation claim was even more lacking in this case
because Val West, who is the Appellant here, did not even write or send the
allegedly defamatory e-mail which was copied to her attorney. Why Val
West was sued for an e-mail she did not even send is highly suspect.
02396-00002 165372.03
2
residence care are amongst the least able to afford to litigate, or to defend
themselves against trumped up charges of defamation.
The current trial court initially found a prima facie case, and that the
causes for malicious prosecution against the attorneys had a likelihood of
prevailing sufficient to survive the motion to strike under the circumstances.
However, in the face of an Alternative Writ and Order, the current trial
court then reversed its prior order and struck the claims against Arent Fox.
The trial court’s reversal was not explained. The Court of Appeal’s
Alternative Writ cited four (4) cases, and directed the trial court to review
and explain its ruling in light of those cases. In reviewing those cases, the
court would have to find on reconsideration EITHER: 1) That there was
probable cause to sue Val West for defamation when the e-mail (not even
written by Ms. West) was copied to Ms. West’s attorney as a matter of law,
OR [if there was no probable cause], 2) that a trier of fact could not
possibly find, based upon the evidence and circumstances known so far,
that EITHER: a) the law firm did not believe the claim to be tenable as a
matter of fact when it filed and/or continued to prosecute the claim, OR b) a
reasonable attorney would not think the defamation claim tenable (at some
point) under the circumstances. Because there was a sufficient prima facie
case for a trier of fact to find 2a and/or 2b, above, the trial court erred by
granting the law firm’s Motion to Strike the two claims for malicious
prosecution.2
West has met her minimal burden to show that there is prima facie
2
The Alternative Writ was issued without any input or opportunity for
argument from Appellant. The trial court could have, at the very least,
allowed Appellant to respond to the Alternative Writ as a real party in
interest (as would be allowed by the express alternative offered by this
Court of Appeal).
02396-00002 165372.03
3
merit to her case. Arent Fox knew that the person copied with the
complaining e-mail was a legal aid attorney even before they filed the
defamation claim. In paragraph 20 of the Arent Fox complaint they admit
knowing: 1) that the person copied was an attorney, 2) that this attorney
worked for an organization providing legal aid to the poor, and 3) that the
allegations in the e-mail were directed at the home’s purported actions. The
Home knew that Val West had previously consulted with the copied
attorney about the issues - Ms. Spiegel, the attorney, was discussed at a
recorded meeting with the Ombudsman and the Home at the facility, and
the home itself had copied and addressed attorney Spiegel with an e-mail
regarding West’s complaints.
Arent Fox did not deny knowing about the Ombudsman discussion
regarding attorney Spiegel, or that its own client had copied attorney
Spiegel before.3 Rather, they argued, “...in the prior matter, RPI’s evidence
showed nothing more than a request by a Bet Tzedek attorney to be ‘kept in
the loop,’ followed by nearly seven months of inaction before the
defamatory email.” (Amended Petition for Writ of Mandate, Incorporated
by Reference at 6 AA 01340, pg. 21, first paragraph). It is without dispute
that even when Arent Fox expressly knew about West’s consultation with
the legal aid attorney, and knew of the request of the attorney to be kept
informed, they still continued to prosecute through a prior appeal (which
they lost with regard to the untenable claim for defamation). A prima facie
3
Arent Fox argued that because the legal consultation meeting with
attorney Spiegel took place seven months before the e-mail was copied to
her, Mr. Dizenfeld did not have the right to keep the attorney informed
when problems with The Home continued (2 AA 00314, first full
paragraph; 6 AA 01340, pg. 21, first para.). There was and is no authority for
this position.
02396-00002 165372.03
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case of malice was clearly shown sufficient to survive the motion to strike
at this early stage.
STATEMENT OF THE CASE
On March 6, 2008, Resident A, an 84-year-old diabetic, became a
resident at the Los Angeles Jewish Home for the Aging (“The Home” or
“JHA”). (4 AA 00786-00789, ¶¶ 2-11). Appellant Val West is the daughter
of Resident A, is very close to her mother, and assists Resident A in many
aspects of her life. (4 AA 00786, ¶3-4; 1 AA 00069, ¶ 2).
West participated in the pre-admission meetings with The Home’s
staff prior to Resident A moving in (4 AA 00786-000789, ¶¶ 4). The Home
was informed by Resident A and West, that West helped her mother with
any decisions involving contracts and legally binding matters, and that these
matters should not be discussed or presented without West and/or her
lawyer friend, David Dizenfeld, present. (4 AA 00785, ¶ 4). West had
medical Power of Attorney for her mother’s affairs, had brought her to all
medical visits since Resident A did not drive, and had made sure that
Resident A’s medications were acquired and taken on time by her mother
for many years to avoid problems caused by diabetes (4 AA 00786, ¶ 2-4).
Between 2008 and 2011, Appellant Val West alerted The Home with
regard to certain issues regarding the care and treatment of her mother (4
AA 00786-00789 ¶¶ 12, 14, 18, 20, 24-30, 32-35, 41; 1 AA 00072-73, ¶¶
17-19). The problems included identity theft, missing medications, lack of
a plan of care, insurance issues, dietary concerns, the lack of a completed
and signed residency contract with the costs of services, etc. (4 AA 00786000789 ¶¶11-27, 29-32). Many of the problems were not being effectively
resolved or even addressed.
02396-00002 165372.03
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On July 7, 2009, Resident A, Ms. West and Mr. Dizenfeld met with
Jody Spiegel, Esq., of Bet Tzedek Legal Services regarding problems that
West and Resident A were having with The Home.(4 AA 00786-00789 ¶¶
30-31; 5 AA 01106, ¶3; 5 AA 01100, ¶5). Bet Tzedek is a non-profit
organization that provides free, expert legal advice to low-income residents
of Los Angeles County, and Jody Spiegel was the Director of Bet Tzedek’s
Nursing Home Advocacy Project counseling, advising, and litigating on
behalf of residents and their families.(5 AA 01099, ¶¶ 2-4; 4 AA 00798 ¶¶
31; 1 AA 00073, ¶ 20).
Attorney Spiegel referred Ms. West, Resident A, and Mr. Dizenfeld
to the California State Ombudsman’s office which was set up to assist
regarding issues with residential care facilities, and Ms. Spiegel asked to be
kept informed if there were further problems (4 AA 00798-00799, ¶ 31; 5
AA 01099, ¶¶ 2-4).
On July 22, 2009, Ombudsman Hilda Estrada met with the interested
parties (the “Ombudsman Meeting”) (4 AA 00799 ¶ 32, Exhibit 14; 1 AA
00072-00073, ¶ 18) at The Home’s administrative offices, and this meeting
was recorded by Brett Fielder, COO of The Home. (4 AA 00799 ¶¶ 32,
Exhibit 14; 4 AA 00840-00900).
During the July 22, 2009 Ombudsman Meeting, JHA COO Brett
Fielder and JHA Executive Director Nadine Roisman were informed that
the Plaintiffs had recently met and consulted with attorney Jody Spiegel at
Bet Tzedek, and this was openly discussed. (4 AA 00799 ¶ ¶ 32-33, 4 AA
00863, Transcript pg 94:1- pg 95:8).
Part of the recorded discussion with The Home regarding Jody
Spiegel, Esq., went as follows:
MR. DIZENFELD: ... You asked why was Bet Tzedek
copied? The reason is because the, after meeting with you on
02396-00002 165372.03
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April 30th, and Nadine promised, indicated she was going to
conduct a full investigation as far as the missing drugs and the
other matters, nothing was happening. Evelyn asked and met
with Bet Tzedek and that's why they're copied.
MR. FIELDER:
Okay.
MR. DIZENFELD: Jody Spiegel, who is the Director of the
Advocacy Project there... (5 AA 001145-46, ¶ 22; 5 AA
001175, top left, Lines 1-9; 4 AA 00799 ¶ ¶ 32-33, 4 AA
00863, top left, Lines 1-9).
On July 24, 2009, two days after the Ombudsman meeting, Mr.
Fielder sent an email to Ms. West, copied Mr. Dizenfeld, and also copied
Jody Spiegel, Esq. of Bet Tzedek Legal Services (4 AA 00799 ¶ ¶ 32-33, 4
AA 00905-906). In the body of Mr. Fielder’s e-mail, he states, “9. Nancy is
not an attorney - this question is best answered by someone at Bet Tzedek.
... I have attached, for Jody’s benefit, your e-mail from last week relating to
these matters ... .” (4 AA 00906). The Home was well aware of attorney
Jody Spiegel’s involvement as a legal consultant for Ms. West.
Complaints and problems continued. Between August, 2009 and
early 2010, Ms. West made reports to the Department of Social Services
(DSS) regarding problems at The Home (5 AA 01002-01003, ¶¶ 10-12,
Exhibits 4 and 5 at 5 AA 01012-01030).
On January 10, 2010, Resident A’s blood sugar level went up to 302.
Resident A and West requested that JHA page Resident A’s endocrinologist
per his stated and written instructions. JHA instead paged their physician
vendor who prescribed slow-acting insulin without the possession of a
chart, without checking with Resident A’s treating endocrinologist, and
without speaking with Resident A or West. (4 AA 00802-00803, ¶ 39) .
West, as Resident A’s Durable Power of Attorney for Healthcare designee,
02396-00002 165372.03
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became concerned and had Resident A transported to the emergency room
(4 AA 00802-00803, ¶ 39-40; 4 AA 00786-00787, ¶ 4) . When West and
Resident A returned to The Home, they handed Executive Director Nadine
Roisman a copy of Resident A’s endocrinologist’s (diabetes specialist)
written instructions and asked that he be paged if Resident A’s blood sugar
exceeded 250 again.(4 AA 00803, ¶ 41).
The incident of January 10, 2010 resulted in another complaint to the
DSS regarding failure to follow the specialist’s instructions. At least twelve
of West’s complaints were initially found to be “substantiated” and resulted
in citations issued against JHA. (5 AA 01002-01003, ¶¶ 10-12; Exhibits 4
and 5 at 5 AA 01012-01030).
On January 13, 2010, West received an e-mail from Nadine
Roisman, inviting West to come to the administrative offices of The Home
to discuss Resident A’s care issues in person (4 AA 00805-806, ¶ 48;
Exhibit 18 at 4 AA 00911).
On January 15, 2010, The Home instructed Arent Fox to prepare and
file a lawsuit against Mr. Dizenfeld and Ms. West (1 AA 00201, ¶24; 1 AA
00212, ¶3) . Mr. Fielder stated in his declaration dated March 29, 2010, at
Paragraph 24, “On or about January 15, 2010, I instructed our outside
counsel to begin preparing a complaint against Val West and David
Dizenfeld, which was completed and filed on February 10, 2010.”(1 AA
00201, ¶24). Arent Fox partner Jonathon E. Cohn stated in his Declaration
dated March 30, 2010, at Paragraph 3, “I have reviewed the bills that reflect
work on the lawsuit that was filed against Val West and David Dizenfeld.
The bills reflect that the client instructed me on or about January 15, 2010
to prepare an action against Defendants. The bills show that work
preparing the complaint or related to the complaint against Defendants
began on or about January 19, 2010 and progressed consistently and
02396-00002 165372.03
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regularly during about a 3 week period, until the lawsuit was filed on
February 10, 2010.” (1 AA 00212, ¶3).
During the period January 16 through January 25, 2010, Ms.
Roisman, Mr. Fielder and Ms. Kelly continued to invite Ms. West to come
down to the facility to discuss matters (4 AA 00805-806, ¶ 48) . West and
Dizenfeld had visited the administrative offices on several occasions
previously to discuss matters, including the meeting at those offices with
the Ombudsman, so nothing seemed particularly unusual about these
invitations (4 AA 00805-806, ¶ 48).
On January 26, 2010, West, her mother Resident A, and Dizenfeld
went to the administrative offices of The Home, and were discussing
matters with Director of Nursing Kelly, when Ms. Roisman burst into the
room, accused West and Dizenfeld of “trespassing”, and stated she was
calling the police. (4 AA 00806, ¶ 49). Dizenfeld said, “You do not have to
do that”, and West and Dizenfeld left the offices immediately (4 AA 0080600807, ¶ 50; 5 AA 01147-01160, ¶¶ 30-31; 5 AA 01180-01192). West was
stunned by the sudden and surprising behavior of Ms. Roisman (4 AA
00806-807, ¶ 50).
On January 27, 2010, the day after the alleged “trespass”, attorney
Cohn of Arent Fox wrote an email to David Dizenfeld regarding whether
Dizenfeld “represented” Resident A ( 5 AA 01160, ¶¶ 32; 5 AA 01214). In
this email, Cohn did not mention any concerns about trespassing or
harassment, and did not ask West or Dizenfeld to cease and desist from
anything (5 AA 01214).
On February 3, 2010, Ms. West received a call from her mother that
LAJHA staff was refusing to share her own glucose testing numbers with
Resident A (4 AA 00807, ¶ ¶ 51-52). When Ms. West called, Nurse Cindy
told her, “They told me not to give you anything.”(4 AA 00807, ¶ 52). Ms.
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West and Mr. Dizenfeld called and left voicemail messages with LAJHA’s
Brett Fielder and Nadine Roisman (4 AA 00807, ¶ 52; 1 AA 00144-00145).
Mr. Dizenfeld confirmed the voicemail messages in a four-sentence email
to Mr. Fielder at 3:56 pm on February 3, 2010, copying Jody Spiegel, Esq.
of Bet Tzedek Legal Services.(4 AA 00807, ¶ 52; 1 AA 00068, Exhibit D at
00144-00145). This email, copied to Jody Spiegel, Esq., and only because it
was copied to attorney Spiegel, became the entire basis for a defamation
claim against West and Dizenfeld.
On February 9, 2010, DSS conducted an on-site complaint
investigation at The Home, and investigated complaints regarding 1) failing
to have medication logs and; 2) approaching Resident to have documents
signed without her responsible persons aware or present. (5 AA 0101201013; Visit date was noted at pg. 2 col. 1"... LPA’s review during 2/9/2010
visit.” Emphasis added).
The day after the on-site investigation, on February 10, 2010, Arent
Fox partner Jonathon Cohn filed LAJHA and Nadine Roisman v. Val West
and David Dizenfeld, Case No. LC088559. This complaint included the
claim for defamation at issue based only upon the fact that the February 3,
2010 Dizenfeld e-mail, complaining about the lack of glucose readings, was
copied to attorney Jody Spiegel (1 AA 00073, ¶ 20, Exhibit d at 0014400145).4 The Complaint admitted, on its face, that Jody Spiegel was known
to be an attorney, and that she worked for the Bet Tzedek non-profit legal
aid organization which consulted with low income individuals (1 AA
00073, ¶ 20, Exhibit d at 00144-00145).
The on-site investigation at JHA on February 9, 2010, the day before
4
The Complaint of The Home also included claims for trespass and
harassment primarily based upon the incident they created on January 26,
2010.
02396-00002 165372.03
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Arent Fox filed the lawsuit on February 10, 2010, resulted in two separate
and distinct citations on February 18, 2010, as follows:
1) "Resident #1 was approached in the facility dining
room with documents to sign. Resident #1 felt
uncomfortable, did not have any knowledge of what she was
signing nor did she have the opportunity to read the
documents requested." (5 AA 01012)
2) "Resident Records: Facility failed to provide
resident centrally stored medication log record for LPA's
review during 2/9/2010 visit." (5 AA 01013).
In response to the defamation claim, West, Dizenfeld, and Jody
Spiegel filed declarations stating that the defendants had consulted with
Jody Spiegel due to her position as an attorney with expertise in
landlord/tenant and senior resident issues, and that Ms. Spiegel had asked to
be kept informed with regard to developments regarding The Home (5 AA
01106; 1 AA 00228, lines 23-27).
On April 13, 2010, the Superior Court ruled that The Home’s
defamation claim violated California’s Anti-SLAPP statute, CCP Section
425.16, and granted West and Dizenfeld’s anti-SLAPP Motion to Strike that
claim. The Home and the Defendant Attorneys continued to prosecute the
defamation claim, and to fight the anti-SLAPP motion, even after they
received further declarations from Ms. Spiegel confirming the facts of her
representation on May 6, 2010 and July 6, 2010 (5 AA 01107 and 5 AA
01099-01104).
The Home filed an appeal with regard to the striking of the
defamation claim, and continued to prosecute the claim until the decision
was filed on November 14, 2011 (2 AA 00272). The California Court of
Appeal, Second Appellate District, Division Five, upheld the striking of the
02396-00002 165372.03
11
claim for defamation, stating, “It is undisputed that seven months prior to
the transmission of the e-mail in question, mother, daughter, and Dizenfeld
all met with Spiegel to discuss mother’s legal rights and remedies against
the Home based on the ongoing disputes she was having with the Home. ...
the very act of informing elder rights attorney Spiegel of recent
occurrences—which alleged occurrences the Home itself characterizes as
accusations of license and regulatory violations—suggests that mother was
considering her legal options against the Home at the time the e-mail was
sent to Spiegel. Accordingly, the trial court correctly concluded that the
Home could not show a probability of success on the defamation claim
because it was barred as a matter of law by Civil Code section 47,
subdivision (b).” (2 AA 00313-00316).
On January 24, 2013, West and Dizenfeld filed the present lawsuit
against The Home and Arent Fox, including the two claims at issue here for
malicious prosecution based upon the fact that they were sued for
defamation for communicating with their attorney (1 AA 00001-31).
On May 13, 2013, Arent Fox dismissed the remaining claims in the
prior suit on behalf of JHA (The “Van Nuys case”) (6 AA 001233, Second
para.). The Van Nuys Court stated, “At the May 9 hearing, counsel for
plaintiffs in the Van Nuys case indicated he was inclined to withdraw their
claim for damages and/or dismiss the complaint ... . However, he was
concerned this could have a negative impact on his clients because the
pending Central case included a cause of action for malicious prosecution.
... The court questioned the appropriateness of continuing to prosecute a
case if it had no merit, or did not actually seek damages, solely for the
purpose of making it appear that the case had not been resolved adverse to
the plaintiffs.”(6 AA 001233, first full para.).
02396-00002 165372.03
12
A.
The trial court first denies, then grants defendants’
anti-SLAPP back motions, and awards attorney
fees. This appeal follows.
Defendant Arent Fox filed anti-SLAPP back motions against the
complainant, contending that the complaint was based on defendant’s
litigation conduct, and that plaintiff did not make out a prima facie case of
liability (1 AA 00032-51). Val West and David Dizenfeld opposed the antiSLAPP motions (4 AA 00763-785).
The trial court (first) denied the motion to strike with regard to the
first two claims for malicious prosecution (6 AA 01274).
Arent Fox filed a Petition for Writ (Amended Petition for Writ of
Mandate, Incorporated by Reference into AA). Without any opportunity for
Val West to be heard, an Alternative Writ of Mandate issued stating that the
trial court was to consider four (4) cases pertaining to malicious prosecution
claims against attorneys, and the Anti-SLAPP statutes, and either strike the
claims against Arent Fox or explain why it should not be ordered to strike
such claims. (6 AA 01280-81). The cases indicated that, in order to deny the
motion to strike, the trial court had to determine that there was no probable
cause to bring the defamation claim as a matter of law which is to be a
judge’s decision (and which had already been determined three (3) times),
AND that a prima facie case was shown sufficient for a trier of fact to
possibly determine that EITHER: a) Arent Fox did not believe the claim
was tenable but continued prosecuting it anyway, OR b) a reasonable
attorney would not believe there was probable cause for this claim (at some
point) and yet Arent Fox continued prosecuting it through appeal. Either (a)
or (b) would be sufficient for a trier of fact to find malicious prosecution.
Therefore if the evidence presented by West at this early stage, or
inferences from such evidence, could potentially support either an a) or b)
02396-00002 165372.03
13
finding, the malicious prosecution claims should survive the preliminarystage motion.
On March 5, 2014, the trial court issued a minute order (without
conferring with the parties) vacating the part of its earlier order denying
Arent Fox’s motion to strike and instead granting the motion to strike
Plaintiffs’ first and second causes of action for malicious prosecution (6 AA
1282-84; 6 AA 1285-93)
On March 10, 2014, Appellant appeared before the trial court ex
parte requesting a hearing date to meaningfully “confer” with the trial
court, and the opportunity to brief the Court of Appeal on the issues and
case law cited in the Alternative Writ (6 AA 01293-01308). Appellant
requested a briefing schedule for the conferring process, and the trial court
took the matter under submission.
On March 10, 2014, the trial court issued a minute order as follows:
“In response to the Court’s Alternative Writ of Mandate dated February 28,
2014, this Court on March 5, 2014 vacated that part of its October 15, 2013
order denying Arent Fox’s motion to strike the first and second causes of
action as against it, and entered a new order granting the motion to strike
those causes of action. The court entered this new order without having first
conferred with the parties. The court has since conferred with the parties
pursuant to Brown, Winfield & Canzoneri v. Superior Court (2010) 47 Cal.
4th 1233 at hearing on March 10, 2014. This court’s order granting Arent
Fox’s motion to strike stands. The Clerk is directed to transmit a copy of
this minute order to the parties and to the Court of Appeal forthwith.” (6
AA 01309-10).
The trial court, again, did not provide any reasoning for its decision,
or any discussion of the test(s) it applied. The court, as a result of the
Alternative Writ, immediately changed its ruling, and would not allow any
02396-00002 165372.03
14
reasonable opportunity for briefing or argument on the subjects at hand.
Because the court below, the Court of Appeal, and the current trial
court, previously found that the claim for malicious prosecution was NOT
tenable (i.e. - no probable cause), this case really turns upon whether
evidence and/or inferences were presented sufficient for a finding that
a reasonable attorney would not have filed and maintained the
untenable defamation claim thinking it tenable, and/or would not have
continued prosecuting this claim as further information became
known.5
On April 30, 2014, Plaintiff West timely appealed the March 5, 2014
Order of the trial court which granted the Motion to Strike the malicious
prosecution claims against Arent Fox. (6 AA 1325).
The trial court awarded defendant Arent Fox $31,505.53 in attorney
fees and costs based upon their prevailing on the Motion to Strike (6 AA
1318-24).
STATEMENT OF APPEALABILITY AND
STANDARD OF REVIEW
Val West timely appealed from the second order, which reversed the
judge’s prior order denying the Anti-SLAPPback Motion to Strike, and,
instead, granted the law firm’s Anti-SLAPP motion.
Review of an order granting or denying a motion to strike under
5
It is possible that what a law firm knows could be in dispute, and this
could raise a preliminary issue for a jury to decide. Arent Fox at one time
claimed not to know that attorney Spiegel had consulted with West.
However, Arent Fox undeniably continued prosecuting after they learned of
the legal consultation, and of attorney Spiegel’s request to be kept
informed.
02396-00002 165372.03
15
section 425.16 is de novo. (Sylmar Air Conditioning v. Pueblo Contracting
Services, Inc. (2004) 122 Cal.App.4th 1049, 1056 [18 Cal.Rptr.3d 882].)
The Court of Appeal is to consider “the pleadings, and supporting and
opposing affidavits . . . upon which the liability or defense is based.”
(§425.16, subd. (b)(2).) However, the Court is to neither “weigh credibility
[nor] compare the weight of the evidence. Rather, [they must] accept as true
the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.” (HMS Capital, Inc. v. Lawyers Title Co.
(2004) 118 Cal.App.4th 204, 212 [12 Cal.Rptr.3d 786].) (Soukup v. Hafif
(2006) 39 Cal.4th 260, 269, fn. 3.) (Flatley v. Mauro (2006) 39 Cal.4th 299,
325-326.) All disputed facts must be viewed in the light most favorable to
plaintiffs. (Id. at p. 326.)
I.
THE ANTI-SLAPP STATUTE DOES NOT APPLY TO
PLAINTIFFS' COMPLAINT BECAUSE DEFENDANTS’
CONDUCT IS ILLEGAL AS A MATTER OF LAW.
A.
The illegality exception bars a defendant who has violated
state law from using the anti-SLAPP statute to defeat
litigation arising from such conduct.
Under the anti-SLAPP statute, the trial court will strike a complaint
if two conditions are met. First, the defendant must show that the plaintiffs
lawsuit arises out of constitutionally protected speech or petitioning
activity. (Navellier v. Sletten (2002) 29 Ca1.4th 82,88-89.) Second, if the
defendant satisfies that burden, the plaintiff must present evidence of a
prima facie case of liability. (Ibid.)
A defendant's litigation activities generally satisfy the first prong of
02396-00002 165372.03
16
the anti-SLAPP test, but there are exceptions. “[W]here a defendant brings
a motion to strike under section 425.16 ... but either the 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 plaintiffs action.”
(Flatley, supra, 39 Ca1.4th at p. 320.)
The illegality exception is a court-created doctrine. (See Flatley,
supra, 39 Ca1.4th at pp. 315, 316 [specifically endorsing Paul for Council
v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another
ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, and noting that “Paul’s interpretation of section 425.16 has been
unanimously accepted in the Court ofAppeal”].) In 2005, however, the
Legislature incorporated the illegality exception into section 425.18, a
companion to the anti-SLAPP statute that authorizes SLAPPback motions.6
Section 425.18, subdivision (h) thus provides that “[a] special motion to
strike may not be filed against a
SLAPPback by a party whose filing or maintenance of the prior cause of
action from which the SLAPPback arises was illegal as a matter of law.”
In Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, a companion case to Flatley, the Supreme Court signaled that the
scope of the common law and statutory illegality exceptions were the same.
(ld. at p. 284 [in section 425.18, subdivision (h), “the Legislature appears to
have had in mind decisions by the Court of Appeal that have held that the
antiSLAPP statute is not available to a defendant who claims that the
6
Section 425.18, subdivision (b) defines a “SLAPPback” as “any cause of
action for malicious prosecution or abuse of process arising from the filing
or maintenance of a prior cause of action that has been dismissed pursuant
to a special motion to strike under Section 425.16.”
02396-00002 165372.03
17
plaintiffs cause of action arises from assertedly protected activity when that
activity is illegal as a matter of law”]; see also id. at p.286 & fn. 14 [section
425.18 illegality exception modeled on decision in Paul for Council, supra,
85 Cal.App.4th 1356]; Sen. Com. on Judiciary, Analysis of Assem. Bill No.
1158 (2005-2006 Reg. Sess.) Aug. 16, 2005, pp. 11-12. [“Thus, where a
person whose prior SLAPP lawsuit was illegal as a matter of law, . . . that
bad actor cannot use the anti-SLAPP law to defend against the lawsuit or to
vex and harass the SLAPP victim. [¶] This concept in part originates from
Attorney General Bill Lockyer's amicus curiae brief in [Flatley v. Mauro]. .
. , in which the Court is being asked to consider whether a defendant
engaged in illegal and even criminal speech behavior may use the antiSLAPP procedures in a lawsuit against him for civil extortion and
intentional infliction of emotional distress. This bill, as it pertains only to
SLAPPbacks, does not directly affect that pending case although the Court
may, if it wishes, take judicial notice of the Legislature's treatment of
conduct illegal as a matter of law”]; Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 1158 (2005-2006 Reg. Sess.) July 12, 2005, pp. 10-11
[same].)
B.
Conclusive evidence of the violation of any state statute is
sufficient to trigger application of the illegality exception.
“An illegal act is an act ‘[f]orbidden by law.’ (Black’s Law Dict. (7th
ed. 1999), p. 750.)." (Soukup, supra, 39 Ca1.4th at p. 283.) In Soukup,
which arose under the SLAPPback statute, the Supreme Court endorsed the
view that this broad definition of illegal conduct defines the scope of the
illegality exception. (See id. at pp. 287-289 [analyzing illegality exception
in context of Labor Code violation, but ultimately determining that there
was not conclusive evidence that any violation had occurred]; see also
02396-00002 165372.03
18
Hutton v. Hafif (2007) 150 Cal.App.4th 527,543-545 [noting that violations
of the Business and Professions Code regarding attorney misconduct could
be a basis for illegal conduct under anti-SLAPP law even though the
evidence in that case was not conclusive].)
The clear holding in Soukup was that the illegality exception is not
limited to criminal law. While Soukup was a SLAPPback case, it signaled
that the scope of the illegality exception was the same under the
SLAPPback statute as it was under section 425.16. The SLAPPback statute
does not determine the outcome of this appeal, because the analysis of
whether there was probable cause, and whether a reasonable attorney would
have believed there was such cause, remains the same even if the claim was
not “illegal”. (Code Civ. Proc., § 425.18; see Hutton v. Hafif (2007) 150
Cal.App.4th 527, 540-545 [defining SLAPPback actions].) Under both the
statute and judge-made law, conclusive evidence that a violation of any
state statute has occurred is sufficient to trigger application of the illegality
exception and bar a defendant from seeking the protection of the antiSLAPP law.
C.
Defendants undisputedly violated state statutes when they
knowingly encouraged, masterminded and abetted JHA’s
suing of West for privileged communications between her
friend and her attorney.
“Protecting the . . . communications between attorney and client is
fundamental to our legal system. The attorney-client privilege is a hallmark
of our jurisprudence that furthers the public policy of ensuring ‘the right of
every person to freely and fully confer and confide in one having
knowledge of the law, and skilled in its practice, in order that the former
may have adequate advice and a proper defense’.” (Clark v. Superior Court
02396-00002 165372.03
19
(2011) 196 Cal.App.4th 37, 48.)
The interest at stake transcends any specific litigation. “[I]t has long
been recognized that ‘[a]n attorney has an obligation not only to protect his
client's interests but also to respect the legitimate interests of fellow
members of the bar, the judiciary, and the administration of justice’.” (State
Comp. Ins. Fund v. WPS, Inc., (1999) 70 Cal.App.4th 644 at p. 657.)
Nor may a lawyer “knowingly assist in, solicit, or induce any
violation” of the Rules of Professional Conduct. (Rules Prof. Conduct, rule
1-120.)
Here, defendants violated the law codified in the Business and
Professions code and State Bar rules by looking for any specious reason to
sue West, and actually suing her for a communication to her attorney that
she did not even make. Even worse — they claimed that a client’s
communication to her own attorney could be “defamation.”
II.
THE TRIAL COURT ERRED IN FINDING THAT VAL WEST
FAILED TO MAKE THE MINIMAL SHOWING OF
POSSIBLE MERIT FOR THE COMPLAINT.
A.
To survive an anti-SLAPP motion, West need only show
that the complaint has minimal merit. All evidence and
inferences must be viewed in the light most favorable to
plaintiff.
To defeat defendants’ anti-SLAPP motion, plaintiff West would only
have to present evidence that, if believed, would be sufficient to establish a
prima facie case and sustain a judgment in her favor on those claims the
defendants seek to strike. (Navellier, supra, 29 Ca1.4th at pp. 88-89.)
Under this standard, “the plaintiffs burden of establishing a
02396-00002 165372.03
20
probability of prevailing is not high: We do not weigh credibility, nor do we
evaluate the weight of the evidence. Instead, we accept as true all evidence
favorable to the plaintiff and assess the defendant’s evidence only to
determine if it defeats the plaintiffs submission as a matter of law.
[Citation.] Only a cause of action that lacks ‘even minimal merit’
constitutes a SLAPP.” (Overstock. com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688, 699-700, emphases added; accord,
Hecimovich v. Encinal School Parent Teacher Organization (2012) 203
Cal.App.4th 450, 468-469; Grewal v. Jammu (2011) 191 Cal.App.4th
977,989.)
If the evidence presented by West is credited in full as required
under the anti-SLAPP statute, rather than weighed against the evidence that
defendants presented, West has presented a prima facie case of malicious
prosecution against the attorneys in this matter. Arent Fox presented
arguments which confused the first court in their case against West, and
mostly asserted bad faith motives with regard to West’s complaints without
foundation. In fact, the Arent Fox Complaint stated that, “During that [July
22, 2009 Ombudsman] meeting, Ms. West and Mr. Dizenfeld admitted that
the allegations were a bargaining tactic designed to secure a lower rent for
Resident A.” (1 AA 00072-73, ¶ 18). However, nowhere in the recording
or transcript of that meeting did Ms. West or Mr. Dizenfeld say anything
even remotely related to this fabricated “motive” or “bargaining tactic” (4
AA 00840-00900). This “admission” during the Ombudsman Meeting was
and is completely fabricated, and yet Arent Fox continues to argue, without
any evidence or foundation, that all of West’s complaints were made up to
get reduced rent.
The key point remains, and should not be covered up by creative
lawyering designed to make the courts not “like” Ms. West: Can a client be
02396-00002 165372.03
21
sued for copying correspondence to their own attorney? Even worse Could Ms. West be sued simply because her friend copied his e-mail
correspondence to her attorney?
It should be noted that the majority of facts Arent Fox presented in
their Petition for Writ had nothing to do with the defamation claim, and the
facts pertinent to THAT claim. Arent Fox tried to support their defamation
claim by besmirching the character of Mr. Dizenfeld and Ms. West, and
stating unsupported claims and conclusions that any issues raised by Val
West were aimed at acquiring a reduction in residence fees. This “kneejerk” reaction to complaints appears to be way to not deal with complaints
or take them seriously. Arent Fox also spends much time citing inconclusive
evidence of harassment, interference, and/or trespass as some kind of
“balance” to their groundless claim for defamation. There is no law or
reasoning which supports such a balancing act. In fact, the other claims
were also eventually dismissed after years of prosecution (6 AA 001233).
The fact that Arent Fox was directed to sue West and Dizenfeld for
“something” before they had any grounds for a lawsuit, real or imagined,
also indicates the heightened aggravation of Arent Fox and their client
against Mr. Dizenfeld and Ms. West, and a motive and willingness to sue
them for anything, including the untenable defamation claim.
Furthermore, in conducting the analysis, “[t]he court must consider
not only facts supported by direct evidence, but also facts that reasonably
can be inferred from the evidence." (Fremont Reorganizing Corp. v. Faigin,
(2011) 198 Cal.App.4th 1153, at 1166.) “The defendant cannot defeat the
plaintiffs evidentiary showing . . . by presenting evidence that merely
contradicts that evidence but does not establish as a matter of law that the
plaintiff cannot prevail.” (Fremont, at p. 1166, emphases added; Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
02396-00002 165372.03
22
B.
Lack of Probable Cause - The Defamation Claim Was Not
Only Untenable, But It Has Been Ruled As Such By Three
(3) Different Courts
The elements of malicious prosecution were set forth in Contemporary Services Corp. v. Staff Pro. Inc., (2007) 152 Cal. App.4th 1043, as
follows:
The elements of a cause of action for malicious prosecution
are: (1) a favorable determination on the merits of the
underlying action, (2) which was brought without probable
cause, and (3) which was initiated with malice. (Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871, 254
Cal.Rptr. 336, 765 P.2d 498.)
There is no dispute that Plaintiffs prevailed in the prior suit. The
defamation claim at issue was stricken by the trial court as improper, and
this ruling was upheld on appeal.
“One has probable cause to bring a civil action if his claim is legally
tenable, as determined on an objective basis.” Padres L.P. v. Henderson,
(2003) 114 Cal.App.4th 495, 516. The evaluation standard was set forth in
Marijanovic v. Gray, York & Duffy, (2006) 137 Cal.App. 4th 1262 at 1271,
as follows:
The evaluation of probable cause requires an objective determination
of the reasonableness of the pursuit of the underlying lawsuit. That
is, whether, on the basis of the facts known to Contractor Appellants,
the institution and prosecution of the cross-action was legally
tenable. (Zamos v. Stroud (2004) 32 Cal.4th 958, 971, 12 Cal.Rptr.3d
54, 87 P.3d 802.)
02396-00002 165372.03
23
Probable cause for defamation clearly did not exist, and yet Arent
Fox continually prosecuted the claim even up through appeal. The only
grounds Defendant stated with regard to their underlying defamation claim
was that it was defamatory to copy Jody Spiegel, an attorney with Bet
Tzedek Legal Services, on an e-mail dated February 3, 2010 from David
Dizenfeld to JHA. The e-mail was not even written by Val West, the
Appellant. The e-mail itself was not severe, but only stated that The Home
was not providing Resident A or Val West with Resident A’s glucose
readings.
Arent Fox has continually argued that there would be no purpose in
copying Jody Spiegel, Esq., other than to hurt JHA’s reputation with a
Jewish-related charity organization. This was after they have been
informed, time and time again, that Jody Spiegel, Esq., had been consulting
West, and had asked to be kept informed. The argument that a client should
not be able to copy her attorney on an e-mail if that attorney is with a
charitable legal aid association with any ties to the same community as the
residence home is not supported by any law or reasonable argument for
extension of law. In fact, such a claim is exceedingly dangerous and
illogical - attorneys tend to have many connections to communities,
especially the communities they seek to serve. If the litigation privilege
could be eliminated if an attorney has “ties” to a community, this would fill
the courts with inventive excuses for suing people for communicating with
their counsel. This would clearly interfere with one’s choice of counsel.
Arent Fox was very aware that Bet Tzedek was a legal aid society,
and that Ms. Spiegel was an attorney. Their client, JHA, also knew that Ms.
Spiegel had consulted with Defendants about the issues involving JHA way
back on July 22, 2009 (the date of the meeting with the Ombudsman).
Arent Fox specifically addresses the Ombudsman Meeting in their
02396-00002 165372.03
24
complaint, and falsely claims West admitted that complaints were designed
to get a reduction in her mother’s rent (1 AA 00072-73, ¶ 18). That was not
stated, or even hinted at, anywhere during the Ombudsman Meeting, and is
not true (4 AA 00840-900). There is a strong inference that because that
Ombudsman meeting was recorded, and because Arent Fox addressed
things discussed in that meeting, Arent Fox would also know that Jody
Spiegel, Esq., had been consulted and was discussed during that
Ombudsman meeting.
The lack of probable cause becomes crystal clear based upon the
following fact: On July 24, 2009, the JHA itself copied Ms. Spiegel on
correspondence regarding issues raised at the July 22, 2009, Ombudsman
meeting. Brett Fielder specifically addressed Jody Spiegel as “Jody” in his
email to Val West two days after the Ombudsman meeting, and said that
one question was better addressed to Bet Tzedek because JHA personnel
were “not an attorney” (4 AA 00906). To later claim that JHA did not know
or have any reason to know that Ms. Spiegel had any involvement with the
Plaintiffs, this matter, or any reason to be copied on correspondence, was
false. The evidence is clear that JHA itself copied Ms. Spiegel on
correspondence BEFORE David Dizenfeld did, and had no problem with
attorney Spiegel being kept in the loop whenever it suited their purposes.
Finally, Arent Fox must admit that it was expressly notified that Jody
Spiegel, Esq., consulted with West, and asked to be kept informed. Arent
Fox received declarations from Ms. Spiegel herself stating these facts under
oath (5 AA 01099-01104; 5 AA 01106-01107). Yet Arent Fox continued to
claim that copying Jody Spiegel, Esq. with an e-mail complaining about not
being given current glucose readings was “defamation”, because Ms.
Spiegel worked for a non-profit entity with ties to the Jewish community.
There is no legal support for such a claim. Distinctions based upon what
02396-00002 165372.03
25
communities an attorney “has ties to” do not eliminate the litigation
privilege .
The last court to review this issue and find the defamation claim
untenable was the current trial court, which at first denied Arent Fox’s
Motion to Strike with regard to the malicious prosecution claims (6 AA
01274). The initial court which reviewed this issue was that in which Arent
Fox filed the LAJHA lawsuit against Ms. West and Mr. Dizenfeld. Judge
Harwin granted the Motion to Strike the defamation claim finding that
LAJHA had no objective likelihood of prevailing on such a claim (1 AA
00268-00270). This Court of Appeal for the Second District, Division Five,
upheld the decision, finding specifically:
“ ... because the evidence supports an inference that the
e-mail was sent in anticipation of litigation against the Home,
it is subject to the absolute litigation privilege set forth in
Civil Code Section 47, subdivision (b). ‘The principal purpose
of [Civil Code] section [47, subdivision (b)] is to afford
litigants and witnesses [citation] the utmost freedom of access
to the courts without fear of being harassed subsequently by
derivative tort actions.’ (Silberg v. Anderson (1990) 50 Cal.3d
205, 213 [266 Cal.Rptr. 638, 786 P.2d 365].) ...”
“The privilege has also been held to apply to ‘statements
made prior to the filing of a lawsuit.’ (Hagberg v. California Federal
Bank, 32 Cal.4th at p. 361.) (Flatley v. Mauro, supra, 39 Cal.4th at
p.322.) Mother’s meeting with Spiegel, when viewed in the context
of her ongoing disputes with the Home, supports an inference that
she was seeking advice from an attorney experienced in the rights of
the elderly concerning potential redress of her grievances with the
02396-00002 165372.03
26
Home. Spiegel not only counseled mother on her rights, she
specifically arranged a meeting with the state ombudsman to further
assist mother in her ongoing efforts to seek redress and regulatory
compliance at the Home. Therefore, the evidence suggests that at the
time of the meeting with Spiegel, some form of litigation was under
consideration. That Spiegel took no action in the next seven months
does not necessarily establish that litigation was no longer under
consideration at the time Dizenfeld sent his e-mail. To the contrary,
the very act of informing elder rights attorney Spiegel of recent
occurrences—which alleged occurrences the Home itself
characterizes as accusations of license and regulatory
violations—suggests that mother was considering her legal options
against the Home at the time the e-mail was sent to Spiegel.
Accordingly, the trial court correctly concluded that the Home could
not show a probability of success on the defamation claim because it
was barred as a matter of law by Civil Code section 47, subdivision
(b).”
(2 AA 00314-00316).
There is no reason for this Court of Appeal to find any differently
this time. There was no probable cause for the defamation claim against
West based entirely upon an e-mail copied by Mr. Dizenfeld to their own
consulting attorney, Jody Spiegel, Esq.
In their Petition for Writ, Arent Fox argued that the litigation
privilege "… does not protect defamatory statements to the attorney of a
third party. Indeed, the litigation privilege does not even explicitly protect
defamatory publications to one's own attorney." (Amended Petition for Writ
of Mandate, incorporated by reference, page 18, second paragraph). This is
02396-00002 165372.03
27
the kind of reasoning, unsupported by any law or facts, which is SO
dangerous in the context of access to justice. A client could be sued for
defamation any time they discussed heated matters and suspicions about an
opposing party with their own attorney, and that would squelch lay persons'
ability to keep their attorneys informed of their thoughts and concerns. Of
note, Arent Fox is STILL claiming that Dizenfeld and West were not in an
attorney-client relationship with attorney Spiegel, even after they have been
notified of this relationship time and time again. Putting blinders on with
regard to facts that don’t fit legal theories (or desires to sue to squelch a
whistle blower) is not what any reasonable attorney would do.
C.
Plaintiffs made a prima facie case for malice under the
“reasonable attorney” standard and/or the subjective
malicious lack of probable cause analyses.
Establishing malice requires a showing of an improper purpose to
pursue the underlying action. Padres L.P., supra., 114 Cal.App.4th at 517.
Malice is generally shown with circumstantial evidence. Sheldon Appel Co.
v. Albery & Oliker, 47 Cal. 3d 863, 875 (1989). Malice may be inferred
when a party knowingly brings an action without probable cause. SwatFame v. Goldstein, (2002) 101 Cal. App.4th 613, 634.
In attorney cases, as referred to by the Court of Appeal in its
Alternative Writ, a claim for malicious prosecution will survive if,
objectively, a reasonable attorney would not believe suing someone for
defamation, or continuing to prosecute the claim, would be tenable under
the circumstances (i.e.- when the friend of West complained about
something in an e-mail to The Home, and copied that e-mail to the attorney
consulting West and her mother on issues with The Home). Malice can also
02396-00002 165372.03
28
be shown subjectively based upon evidence, circumstances and inferences
which indicates that the particular attorneys in question did not believe their
case had legal merit. While the lack of a tenable claim and probable cause is
a matter of law for the court to decide, and this has been done, the issue of
malice is the province of the jury. In this case, there was plenty of evidence
upon which a jury could find that Arent Fox prosecuted the defamation
claim with malice and/or that a reasonable attorney would not have
prosecuted the claim.
THE PRIMARY CASES CITED IN THE ALTERNATIVE WRIT
Four cases were cited by this Court of Appeal, and the court below
was directed to confer with the parties, and then either strike the malicious
prosecution claims against the Arent Fox law firm or explain why it should
not be directed to do so in light of these cases. None of the cases indicate
that the trial court should have changed its ruling, and/or that this court
should rule de novo that the malicious prosecution claims must be stricken.
The pincite relied on by the Court of Appeal in the Alternative Writ
regarding Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260
sets out the familiar standards of considering malicious prosecution actions
against attorneys: The probable cause determination is purely objective
(without any subjective component) and therefore presents a legal question
for the trial court; the malice determination is subjective and therefore
presents a fact question for the jury. (Soukup, supra, 39 Cal.4th at p. 292.)
In Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863 (1989) there
was a malicious prosecution suit regarding an allegedly wrongful lis
pendens, and the judge submitted the probable cause issue to the jury and
the jury found for plaintiff. The Court of Appeal affirmed. The Supreme
02396-00002 165372.03
29
Court reversed because 1) the “probable cause issue” is a legal issue for the
court to decide (not the jury) and 2) the Supreme Court found that the
claims brought by the firm were tenable.
“What facts and circumstances amount to probable cause is a pure
question of law. Whether they exist or not in any particular case is a pure
question of fact. The former is exclusively for the court, the latter for the
jury,” Sheldon Appel Co., supra at 877, citing Ball v. Rawles, (1892) 93
Cal. 222, 227. In this case, as shown above, there was objectively no
tenable claim for defamation under the circumstances.
The Writs Department of the Court of Appeal may have been
concerned that the trial court stated that Val demonstrated a lack of
probable cause based on evidence, and mentioned factual “inferences” from
the evidence. Generally, inferences result from factual findings, rather than
legal conclusions. However, Sheldon Appel also stated that “When there is a
dispute as to the state of the defendant’s knowledge and the existence of
probable cause turns on resolution of that dispute...and similar cases hold
that the jury must resolve the threshold question of the defendant’s factual
knowledge or belief,” Sheldon Appel Co., supra at 881 (internal citations
omitted). In other words, what the attorneys claim to have known or done
while they are prosecuting a lawsuit can become an issue. It would not be
error to take into account inferences and information in dispute regarding
what the attorneys knew and didn’t know, and a jury could decide these
factual issues. See also Greene v. Bank of America (2013) 216 Cal.App.4th
454, 465, "When the evidence bearing on the question of probable cause is
in conflict, it is the province of the jury to determine whether facts exist
which will warrant or reject an inference of probable cause." (Citing
Centers v. Dollar Markets, 99 Cal.App.2d at p. 541, 222 P.2d 136.)
In this case, Arent Fox made some weak attempts to claim not to
02396-00002 165372.03
30
have known that West had consulted with Jody Spiegel, Esq., and that lack
of this knowledge somehow guided their prosecution actions. This is a red
herring, at best. Arent Fox was presented with declarations from all parties,
including Jody Spiegel, Esq., which made it clear that attorney Spiegel had
consulted with West, and asked to be kept informed (5 AA 01099-01104; 5
AA 01106-01107). They also undoubtedly acquired knowledge that
attorney Spiegel had been discussed during the Ombudsman Meeting, and
The Home itself had copied attorney Spiegel with correspondence about
West’s complaints months prior to the time Dizenfeld copied his short email to the consulting attorney. Even after this knowledge was indisputably
known, Arent Fox continued prosecuting West on the defamation claim.
Clearly West’s relationship as a client of Jody Spiegel, Esq., did not
matter to the prosecution actions and attitudes of Arent Fox. However, if
the determination of what knowledge Arent Fox had was really in dispute,
and knowing whether attorney Spiegel had actually consulted with West
was the determining factor of probable cause (which it is not), the jury
could conceivably be used to make findings of these facts. At that point, the
judge would still determine probable cause, and whether the facts as
misunderstood could have supported a tenable claim for defamation. Such
analysis is not needed here. The attorneys continued to prosecute after
undeniably knowing the facts, and three (3) courts have already found that
there was no objective probable cause for a defamation claim based upon
those facts.
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, was
superseded by statute in part as stated in Hutton v. Hafif (2007) 150
Cal.App.4th 527, 547: The legislature amended Section 425.16,
subdivision (b)(3) in 2005 specifically in response to Wilson. The
amendment "legislatively abrogates that part of Wilson opinion which holds
02396-00002 165372.03
31
the denial of special motion to strike is sufficient to show there was
probable cause to file an underlying lawsuit." (Hutton v. Hafif, supra, 150
Cal.App.4th at p. 547.)
The surviving part of Wilson bearing on this case is the discussion of
the interplay between (a) the probability-of-success prong of an anti-SLAPP
motion, and (b) the probable-cause prong of the malicious prosecution tort.
Wilson is primarily cited for the standard of reviewing anti-SLAPP
motions: the "plaintiff 'must demonstrate that the complaint is both legally
sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited. [Citations.]'" (Wilson, supra, 28 Cal.4th at p. 821.)
The framework of Wilson’s discussion was that the denial of an
anti-SLAPP motion in the underlying lawsuit demonstrates probable cause
for purposes of the later-filed malicious prosecution action. But that part of
the opinion was statutorily abrogated AND, more importantly, the opposite
happened here - West’s Motion to Strike the untenable defamation claim
was granted in the first court, and this Court of Appeal upheld that decision.
The courts each found absolute privilege to communicate with West’s
attorney Spiegel, and that Arent Fox had no tenable claim or likelihood of
prevailing as a matter of law.
SUBJECTIVE INDICATIONS OF MOTIVE AND MALICE
Legal precedent holds that a trier of fact can infer malice when a
case is brought without probable cause. Swat-Fame v. Goldstein, 101 Cal.
App. 4th 613, 634 (2002). In this particular case, however, there are many
other facts and circumstances already known which further indicate and
infer actual malice. This is yet another reason why the court below erred in
granting the Motion to Strike re: the malicious prosecution claims, and
02396-00002 165372.03
32
eliminating Ms. West’s rights to her day in court.
The timing of the attacks on Plaintiffs has never been disputed, and
indicates the following:
* There had been many issues raised regarding lost
medications, duplicate orders for medications, pressures for Resident
A to give up private insurance and go on the government programs
which were more controlled by JHA, treatments and medications that
were not Resident A’s being billed to her, and Resident A being
indicated as a Medicare Part D recipient which jeopardized her
private insurance benefits.(4 AA 00786-00800, ¶¶ 4-33). The fact
that many issues were being raised is undisputed.
* There had also been issues raised regarding not having a
firm and stated contract rate for the MNO payment program which
JHA had stated would be the arrangement. There were also issues
with JHA personnel approaching Resident A to sign documents
when she had stated she didn’t want to sign anything without the
review of her daughter and/or Mr. Dizenfeld (4 AA 00786-00800, ¶¶
4-33). DSS found this to be improper, and cited The Home with a
deficiency for this (5 AA 01012). Also undisputed.
* There were also issues with Resident A and Val West’s
sensitive private medical HIPAA information on a JHA Facesheet
being shared with persons and entities without authorization.(4 AA
00786-00800, ¶¶ 4-31). Undisputed.
* Due to these issues not being resolved, on July 7, 2009,
West and Resident A, together with Mr. Dizenfeld, met with and
sought advice from Jody Spiegel, an attorney and Director of the
Nursing Home Advocacy Project at Bet Tzedek Legal Services (5
AA 01099-01104; 5 AA 01106-01107). Bet Tzedek provides free
02396-00002 165372.03
33
legal representation to low-income, elderly, and disabled residents of
Los Angeles County (5 AA 01099-01104). After that meeting with
attorney Spiegel, West contacted the Healthcare Ombudsman’s
Office, who set up a meeting with The Home on July 26, 2009 - This
meeting was recorded by The Home, and by agreement of all
present. (4 AA 00798-00799, ¶¶ 31-32). Undisputed.
* The fact that West had consulted with Jody Spiegel, an
attorney at Bet Tzedek, was expressly discussed during the
Ombudsman meeting. (4 AA 00863; 5 AA 001175). JHA itself
copied the lawyer Plaintiffs had spoken to, Jody Spiegel of Bet
Tzedek, on a follow-up e-mail. This is undisputed, and is on the
e-mail itself. (4 AA 00905-00906).
* The Ombudsman meeting took place at the administration
offices at the JHA Eisenberg Center, and Plaintiffs had been in those
offices before to go over medication issues with a nursing staff
member. (4 AA 00797, ¶ 29; 4 AA 00799, ¶ 32) This is undisputed.
* There were numerous inquiries and reports to DSS by Val
West and her mother before the lawsuit against Plaintiffs was filed.
This is not disputed. The inquiries resulted in at least 2 on-site
investigations, and at least 12 of these inquiries were substantiated.
(5 AA 01002-01003, ¶¶ 10-12; 5 AA 01012-01030).
* On January 10, 2010, Resident A’s blood sugar spiked to
302, and Val West and Resident A tried to get JHA to page/call the
specialist as the medical notes said to do if it went over 250. JHA
refused. Resident A was taken to the emergency room. On January 1,
2010 Val West gave The Home’s Executive Director Roisman a
copy of the doctor’s paging order and asked that it be followed if the
sugar level spiked again. That day JHA filed two complaints
02396-00002 165372.03
34
charging elder abuse against Val West, both of which were closed as
unfounded after an interview with Resident A (4 AA 00801-00804,
¶¶ 37-42).
* On January 15, 2010, Brett Fielder directed Mr. Cohn to
file the lawsuit against Plaintiffs (1 AA 00201; 1 AA 00212). There
were no known grounds for any lawsuit at that time.
* Between January 12 and 26, 2010, JHA contacted Ms.
West by phone and e-mail to get her to come into the administration
offices “in person” to discuss Evelyn’s care.(4 AA 00805-00806, ¶
48; 4 AA 00911)
* On January 26, 2010, while Plaintiffs and Resident A were
seated in the administration office of nurse Kelly, Executive Director
Roisman suddenly burst into the office and claimed they were
“trespassing”. (4 AA 00806-00807, ¶¶ 49-50)
* Roisman later admitted, under oath, that: There was no
policy prohibiting families and responsible persons from going to the
administrative offices to discuss the care of their loved ones (2 AA
00440: lines 8-25); There were no signs indicating these areas were
off limits (2 AA 00440: lines 15-18); An extra chair was brought in
so they could sit down when they visited Betsy Kelly (2 AA 00443:
line 2 to 00444: line 3); and West and Dizenfeld left within minutes
of being told they were being accused of “trespassing” (2 AA 00444:
lines 6-26).
* On February 9, 2010, the DSS conducted an on-site facility
investigation at JHA based upon Defendants communications. (5 AA
01012-01013). Two deficiency notices were issued based upon this
particular visit (5 AA 01012-01013).
* The next day, on February 10, 2010, Plaintiffs were sued
02396-00002 165372.03
35
for defamation for an e-mail copied to Ms. Spiegel, and for trespass,
interference, and general allegations of harassment based primarily
on the alleged trespass (1 AA 00068-00146).
* Even after it was made clear to Arent Fox through at least
five (5) declarations that Jody Spiegel had consulted with West, and
asked to be kept informed as to issues with The Home, Arent Fox
continued to prosecute the defamation claim (5 AA 01106-01107; 5
AA 01099-01104; 1 AA 00228: lines 23-27). Arent Fox continued
prosecuting based upon the correspondence copied to attorney
Spiegel even after the anti-SLAPP Motion to Strike was granted by
the trial court, and they appealed that ruling. Arent Fox did not stop
their prosecution until the Court of Appeal finally upheld the striking
of the claim on November 14, 2011 (2 AA 00271).
* The other claims of the lawsuit filed by Arent Fox were
dismissed. The court in that lawsuit was concerned that Arent Fox
had continued to prosecute the three (3) remaining claims for years,
and almost to the point of trial, even without evidence of damages,
due to fears of malicious prosecution claims. (6 AA 001233).
Based upon the above, and the prior findings that the defamation
claim was untenable as a matter of law, there is plenty of support for a
finding that a reasonable attorney would not have brought or maintained
such a defamation claim, and/or to find actual malice in this situation, even
at this early stage before discovery. The prima facie case is more than
sufficient to allow Val West her day in court on her malicious prosecution
claims.
III.
02396-00002 165372.03
ARENT FOX’S ATTEMPTS TO BESMIRCH THE
36
CHARACTER OF VAL WEST AND MR. DIZENFELD ARE
FULL OF UNTRUTHS, AND SHOULD NOT DISTRACT
FROM WHETHER THE DEFAMATION CLAIM WAS
PROPER.
If history is any lesson, Arent Fox will likely attempt to convince this
court that Val West is a “bad person”, was bringing up false issues to try to
get a reduction in rent, that she purposely trespassed and invaded the JHA,
and that the e-mail copied to attorney Jody Spiegel regarding glucose
readings was patently untrue. By baldly claiming such things, Arent Fox
asserts they had probable cause to think the email was copied to attorney
Spiegel, even if she was Val West’s legal counsel, for an improper purpose.
While this is distracting and nonsensical, Appellant feels compelled to
respond to some of these anticipated “defenses” for Arent Fox’s actions.
A.
The Dizenfeld email stating that Val West and her mother
were not given glucose readings was not “false”, as
claimed by Arent Fox.
Arent Fox has claimed that the allegation of David Dizenfeld that
Resident A was not being given her glucose readings, which was copied to
attorney Jody Spiegel on February 3, 2010, was found to be false. In
reality, there were several reports of a failure to share glucose readings with
Val West, and this failure to share information was actually found
substantiated.
Expanded versions of the DSS citation issued 03/02/2010 was
attached to the Complaint of Evelyn L. and it states:
"Facility refuse to inform R#1's responsible person (POA) of glucose
02396-00002 165372.03
37
readings when requested. … Interviews revealed that staff failed to provide
glucose reading to resident responsible person when requested. Staff stated
there was just one incident (staff could not remember date of incident) were
glucose reading was not provided to resident #1's responsible person. Staff
stated that they were informed at that time by administrative staff when
resident #1's responsible person contacts them they should refer resident
#1's responsible person to Administrator or Director of Nursing. … Based
upon the interviews conducted this allegation is SUBSTANTIATED." (3
AA 00758).
JHA received a DSS deficiency citation because "Facility staff failed
to provide R#1's responsible person (POA) of R#1's glucose reading when
requested" (3 AA 00759).
JHA appealed one such finding that they were not giving Val West
glucose reading information, and placed a lot of pressure on the
bureaucratic DSS system. However, on February 3, 2010, when Mr.
Dizenfeld copied his correspondence to Jody Spiegel, Esq., the fact that
staff was refusing to give Val West the glucose numbers was clearly not a
"false statement". It was true, and the staff admitted it.
At any rate, correspondence with one's own attorney does not
constitute "publication". In this case, it wasn't even Val West who made any
arguable "publication". Finally, Val West's belief that glucose readings were
being withheld from herself and her mother is not defamatory, especially
when this belief was only shared with the allegedly offending parties and
her attorney (by another person), and is true. The inquiry should have
stopped and ended when Arent Fox knew that Jody Spiegel was an attorney,
and had consulted with these clients (and had asked to be kept informed) keeping a person's own attorney informed cannot provide grounds for
defamation claims without abrogating access to justice.
02396-00002 165372.03
38
B.
The Department of Social Services Investigations - The
True Story.
In their Petition for Writ, Arent Fox painted the general picture that
Val West was making up complaints and issues in order to achieve a
reduction in rent. In their complaint Arent Fox fabricated a claim that
during the Ombudsman Meeting, Val West admitted she was trying to get a
rent reduction (1 AA 00072-00073, ¶ 18). Fortunately for Val West, that
meeting was indisputably recorded by JHA. A review of the transcript of
that meeting shows that nobody in that room said they were trying to get a
rent reduction (4 AA 00840-00900). There was no evidence that Val West
ever asked for a reduction in rent, or related any reduction in fees to her
complaints about her mother's care. It is simply not true.
In fact, the majority of the complaints made by Val West regarding
problems at the home resulted in the allegations being substantiated through
DSS investigations (8 AA 1012-1030, Exhibits 5 and 6). This, of course,
has little to do with whether Val West can be sued for defamation based
upon her friend, David Dizenfeld, copying a letter to her attorney, Jody
Spiegel. However, it does show the willingness of Arent Fox to bend the
truth in order to hurt the image of Val West.
C.
The “Trespass” Claim Was Trumped Up To Support The
Planned Complaint.
Based upon the hearings and other testimony, the invitations of JHA
personnel, and the timing of the facts underlying the trespass claim, it
becomes fairly apparent that the trespass claim was “created”. The sections
below from the hearings on the preliminary injunction further indicate that
02396-00002 165372.03
39
Ms. Roisman rushed to the scene to claim trespass, and as soon as she did
so, Val West and David Dizenfeld left.
1. Ms. Roisman’s Testimony:
At the June 24, 2010 hearing, the testimony of Nadine Roisman and
the transcript excerpt starting at Page 116, Line 24 (2 AA 00434: line 24)
reveals much about this incident:
BY MR. ROTHNER:
Q
I JUST WANT TO FOCUS ON JANUARY 26 OF THIS YEAR,
2010.
UM, WHERE WERE YOU WHEN YOU GOT THE CALL FROM
MS. TEPPER?
A
I WAS IN ANOTHER BUILDING ON CAMPUS.
Q
IS IT THAT OTHER BUILDING IN WHICH YOU HAVE YOUR
OFFICE?
A
I HAVE TWO OFFICES. I HAD AT THE TIME TWO OFFICES.
Q
SO YOU WERE IN YOUR OTHER OFFICE?
A
UM-HUM.
Q
IN THAT OTHER BUILDING?
A
YES.
Q
AND, UM, SO YOU RAN FROM THAT OFFICE?
A
UM-HUM.
Q
YOU WERE A BIT OUT OF BREATH?
A
YES.
Q
AND THE FIRST THING THAT HAPPENED WHEN YOU GOT
THERE WAS THAT YOU SAW MR. DIZENFELD STANDING UP?
A
YES.
Q
AND THE NEXT THING THAT HAPPENED WAS YOU
02396-00002 165372.03
40
CALLED MR. FIELDER?
A
RIGHT.
Q
YOU CALLED MR. FIELDER ON A LAND LINE?
A
UM-HUM.
Q
IN THAT OFFICE.
A
YES.
Q
YOU PUT THE PHONE TO YOUR EAR?
A
I BELIEVE SO.
Q
AND YOU HAD A BRIEF CONVERSATION WITH MR.
FIELDER?
A
YES.
Q
AND YOU THEN - - AND HE TOLD YOU TO CALL THE
POLICE?
A
YES.
Q
YOU PUT THE PHONE DOWN, AND YOU TOLD MR.
DIZENFELD TO LEAVE?
A
I DON'T BELIEVE IT HAPPENED THAT WAY. I BELIEVE I
CALLED HIM ON THE LAND LINE AND TOLD HIM WHAT THE
SITUATION WAS, AND HE TOLD ME TO PUT HIM ON SPEAKER,
AND I DID. …
(2 AA 00434: line 24 to 00436: line 9)
…
Q
BY MR. ROTHNER: SO, MS. ROISMAN, MR. DIZENFELD
DID SAY IN REGARD TO YOUR STATEMENT THAT YOU WERE
GOING TO CALL THE POLICE, HE DID SAY THAT YOU DIDN'T
HAVE TO DO THAT?
A
YES.
Q
AND SHORTLY AFTER THAT, HE LEFT?
02396-00002 165372.03
41
A
UM, WELL, YOU'RE MISSING A STEP. SO I INTENDED TO
CALL THE POLICE. HE TOLD ME I DIDN'T HAVE TO DO THAT,
AND I WENT AHEAD AND CALLED THE POLICE, AND THEN
THEREAFTER HE LEFT.
Q
OKAY. WELL, HOW MUCH TIME TRANSPIRED BETWEEN
THE TIME YOU SAID YOU WERE GOING TO CALL THE POLICE
AND THE TIME HE LEFT?
A
IT WAS, YOU KNOW, WITHIN A FEW MINUTES. TEN
MINUTES.
Q
"FEW MINUTES"? "TEN MINUTES"?
A
SOMETHING LIKE THAT. I WASN'T TIMING IT.
Q
THE PLACE WHERE YOU SAW HIM THAT DAY WAS MS.
KELLY'S OFFICE; IS THAT RIGHT?
A
YES.
Q
AND THAT'S IN A SUITE OF OFFICES?
A
YES.
MR. COHN: OBJECT TO THE FORM OF THE QUESTION.
THE COURT: OVERRULED.
Q
BY MR. ROTHNER: AND THAT SUITE OF OFFICES DOESN'T
HAVE ANY MARKING ON ANY DOOR SAYING, "DO NOT ENTER,"
DOES IT?
A
NO.
Q
IN FACT, RESIDENT AND FAMILY MEMBERS OF RESIDENT
ARE ALLOWED TO ENTER THE SUITE OF OFFICE; IS THAT
RIGHT?
A
THEY ARE, BUT THEY'RE SEPARATED BY THE
ASSISTANT'S DESK, SO THEY'RE DIRECTED TOWARDS HER
DESK.
02396-00002 165372.03
42
Q
RIGHT. AND THAT'S MS. TEPPER?
A
YES.
Q
AND WHEN YOU ARRIVED, ON JANUARY 26TH, AT MS.
KELLY'S OFFICE, DID YOU KNOW ABOUT WHAT HAD BEEN - WHAT HAD TRANSPIRED BETWEEN MR. DIZENFELD AND MR.
TEPPER IN REGARD TO THE SEARCH FOR RECORDS?
A
NO. I DID NOT.
Q
DID ANYONE TELL YOU THAT?
A
NO.
(2 AA 00439: line 19 to 00441: line 4)
…
Q
AND DID YOU KNOW THAT ON THAT DAY BEFORE YOU
ARRIVED, MS. TEPPER HAD ACCOMPANIED MR. DIZENFELD TO
THE RECORDS OFFICE TO TRY TO FIND THE FACE SHEET?
A
I DIDN'T KNOW.
Q
OKAY. UM, DID MS. TEPPER - - WAS MS. TEPPER IN THE
ROOM WITH YOU WHEN YOU CAME INTO MS. KELLY'S OFFICE?
A
SHE WAS IN HER OFFICE, AND MS. KELLY WAS IN MS.
KELLY'S OFFICE.
Q
OKAY. DID YOU ASK MS. KELLY, IN THE PRESENCE OF
MR. DIZENFELD AND MS. WEST TO DESCRIBE WHAT HAD
HAPPENED TO THAT POINT?
A
NO.
Q
DID MS. KELLY DESCRIBE FOR YOU, WHEN YOU
ARRIVED, WHAT HAD HAPPENED TO THAT POINT?
A
I DON'T RECALL.
Q
OKAY. SO, AND IF I'M CORRECT, MS. KELLY WASN'T THE
ONE WHO CALLED YOU THAT DAY, WAS SHE?
02396-00002 165372.03
43
A
NO.
Q
IT WAS MS. TEPPER?
A
CORRECT.
Q
AND MS. TEPPER TOLD YOU THAT MR. DIZENFELD AND
MS. WEST HAD GONE PAST HER OFFICE AND INTO MS. KELLY'S
OFFICE?
A
THAT'S CORRECT.
Q
DID MS. TEPPER TELL YOU THAT SHE HAD ALSO
ACCOMPANIED MR. DIZENFELD ON HIS SEARCH FOR THE FACE
SHEET AT THE RECORDS OFFICE?
A
NO, SHE DIDN'T.
Q
AND WHEN YOU ARRIVED AT MS. KELLY'S OFFICE, YOU
DIDN'T SEEK TO SPEAK WITH THE PERSON WHO HAD CALLED
YOU, MS. TEPPER?
A
SHE SPOKE TO ME ON THE PHONE.
Q
RIGHT, I UNDERSTAND THAT, BUT WHEN YOU ARRIVED
THERE, YOU DIDN'T SEEK TO SPEAK WITH HER?
A
NO.
Q
OKAY. UM, AND WHAT SHE TOLD YOU ON THE PHONE
WAS THAT MR. DIZENFELD AND MS. WEST - - THIS IS MS.
TEPPER - - HAD GONE BY HER DESK AND ENTERED MS. KELLY'S
OFFICE?
A
YES.
Q.
OKAY. SO, IN MS. KELLY'S OFFICE, WERE THERE GUEST
CHAIRS - - YOU CAN USE A DIFFERENT TERM IF YOU LIKE, BUT
I'LL CALL THEM GUEST CHAIRS - - WERE THERE GUEST CHAIRS
IN THE OFFICE?
A
SHE HAS A COUPLE OF CHAIRS IN HER OFFICE, YES.
02396-00002 165372.03
44
Q
TWO?
A
I BELIEVE SO.
Q
AND WAS RESIDENT A IN THE OFFICE AT THAT POINT?
A
SHE WAS.
Q
AND MS. WEST WAS IN THE OFFICE?
A
YES.
Q
AND MR. DIZENFELD WAS IN THE OFFICE?
A
YES.
(DEFENDANTS' COUNSEL CONFER.)
Q
BY MR. ROTHNER: AND THE TWO CHAIRS WERE BEING
OCCUPIED BY RESIDENT A AND MS. WEST; ISN'T THAT RIGHT?
A
NO. THE TWO CHAIRS WERE BEING OCCUPIED BY DAVID
AND MS. WEST.
Q
AH, I SEE. AND WHERE WAS RESIDENT A?
A
SHE WAS BEHIND THEM, CLOSER TO THE DOOR.
Q
STANDING?
A
NO. AS I - - WE PULLED IN A CHAIR FOR HER.
Q
AH, I SEE. SO AT THE POINT OF YOUR ARRIVAL, ALL
THREE WERE SEATED?
A
YES.
(2 AA 00441: line 17 to 00444: line 3)
…
Q
HOW - - DID THE POLICE ARRIVE?
A
UM, NO, THEY DIDN'T. I CALLED AND CANCELLED.
Q
DID SECURITY ARRIVE?
A
UM, MR. FIELDER CALLED OUR DIRECTOR OF
MAINTENANCE AND SECURITY, AND OUR DIRECTOR OF
MAINTENANCE ARRIVED IMMEDIATELY.
02396-00002 165372.03
45
Q
"IMMEDIATELY." AND WAS THAT BEFORE OR AFTER MR.
DIZENFELD LEFT?
A
I BELIEVE - - I DON'T RECALL EXACTLY. POSSIBLY WHILE
HE WAS STILL THERE.
Q
SO, THIS PERSON ARRIVED IMMEDIATELY, AND IT WAS
THEN IMMEDIATELY THAT MR. DIZENFELD LEFT; IS THAT
RIGHT?
A
I DON'T KNOW THAT MR. DIZENFELD SAW HIM, BECAUSE
HE WAS RIGHT OUTSIDE THE DOOR. I - Q
MR. DIZENFELD ALREADY - -
A
NO. NO. NO. THE DIRECTOR OF MAINTENANCE WAS
RIGHT OUTSIDE THE DOOR, SO I DON'T KNOW THAT THE TWO
OF THEM CONNECTED. I DON'T KNOW THAT HE SAW HIM.
(2 AA 00444: line 6 to 26).
Although Ms. Roisman's testimony stated that she discussed the
January 26, 2010 incident with counsel on that date, Jonathon Cohn's letter
to David Dizenfeld dated January 27, 2010, the day after the alleged
trespass, did not mention the incident whatsoever (5 AA 001214). Mr.
Cohn did not say anything about ceasing and desisting from visits to the
administration office, and did not say that any of his clients or members of
the staff felt harassed by our sitting down with Ms. Kelly in her office.
2. Ms. Betsy Kelly’s Testimony:
The June 24, 2010 testimony of Betsy Kelly also reveals how quickly
and surprisingly this claim of “trespassing” took place (beginning at 2 AA
00474: line 28):
Q
I WANT TO FOCUS NEXT ON JANUARY 26, 2010. UM, SO
02396-00002 165372.03
46
YOUR FIRST CONTACT WITH MR. DIZENFELD AND MS. WEST ON
THAT DAY WAS WHEN THEY CAME INTO YOUR OFFICE?
A
YES.
Q
OKAY. AND YOU HAVE TWO GUEST CHAIRS IN YOUR
OFFICE?
A
YES.
Q
AND WHO MADE THE THIRD CHAIR AVAILABLE?
A
I DID. I GOT THE THIRD CHAIR FROM ALLISON'S OFFICE
SO EVELYN COULD SIT DOWN.
(2 AA 00474: line 28 to 00475: line 10)
…
Q
OKAY. SO YOU HAD INVITED THE WHOLE GROUP OF
THREE TO STAY IN YOUR OFFICE?
A
I DID. THERE THEY WERE AND FELT LIKE THAT WAS THE
RESPECTFUL THING TO DO.
(2 AA 00476: lines 1-4).
…
Q
DID YOU KNOW THAT AT SOME POINT THAT DAY ON THE
26TH, ALLISON TEPPER ACCOMPANIED MR. DIZENFELD TO
MEDICAL RECORDS TO LOOK FOR THE FACE SHEET?
A
NO, BECAUSE I HEARD ABOUT THAT AFTER THE FACT
BECAUSE I WAS BUSY MAKING A COPY IN THE COPY ROOM OF
THE DPOA THAT VAL BROUGHT.
(2 AA 00477: lines 14-19).
…
Q
BUT YOU, BEFORE YOU LEFT THE OFFICE TO GO MAKE
COPIES, DIDN'T DO ANYTHING IN RESPONSE TO WHAT YOU'VE
NOW CHARACTERIZED AS INTIMIDATION.
02396-00002 165372.03
47
FOR EXAMPLE, YOU DIDN'T CALL SECURITY, YOU DIDN'T
CALL - A
NO.
Q
- - OPERATIONS? MAINTENANCE?
A
NO.
Q
YOU DIDN'T CALL MS. ROISMAN TO SEE IF SHE COULD
INTERVENE?
A
NO. I DIDN'T NEED TO AT THAT POINT.
Q
OKAY. YOU DIDN'T NEED TO, AND YOU ACTUALLY WENT
OFF TO MAKE COPIES PURSUANT TO THEIR REQUEST THAT
YOU ACCEPT THE DPOA?
A
I'M NOT - - I DON'T RECALL EXACTLY WHEN I MADE THE
COPY. I DON'T KNOW IF IT WAS WHEN NADINE WAS COMING
DOWN THE HALL, AND IT'S HARD TO REMEMBER EXACTLY
WHEN IT WAS. EVEN THOUGH I DECIDED TO NOT CALL
MYSELF, WE DEAL WITH THOSE KINDS OF THINGS ALL THE
TIME, SIR. VERY DIFFICULT SITUATIONS, AND YOU DEAL WITH
IT.
Q
OKAY.
A
YOU TRY TO HANDLE THE SITUATION.
Q
I THINK I UNDERSTAND THAT.
A
YES.
Q
IN FACT, WHILE YOU MAY CHARACTERIZE IT AS A
DIFFICULT SITUATION, WHEN YOU WENT TO MAKE THE COPIES
OF THE DPOA, YOU LEFT THEM IN YOUR OFFICE, WHILE YOU
WERE OUT OF THE OFFICE?
02396-00002 165372.03
48
A
YEAH, BUT I DIDN'T LEAVE THEM BY THEMSELVES.
BECAUSE LIKE I SAID, I BELIEVE NADINE WAS THERE AT THAT
POINT, AND ALLISON - Q
I THOUGHT YOU SAID YOU SAW HER COMING AS YOU
WERE AT THE COPY - A
YEAH, I THINK YOU'RE PUTTING WORDS IN MY MOUTH.
Q
I'M SORRY, I DON'T MEAN TO.
A
YEAH, I ALREADY TOLD YOU THAT IT'S HARD TO RECALL
EXACTLY WHO WAS THERE WHEN. IT ALL HAPPENED VERY
QUICKLY IN A MATTER OF MINUTES. AND, YOU KNOW, I DON'T
REMEMBER IF THERE WAS ANYBODY IN THE ROOM WHEN I
WENT OUT AND MADE A COPY, I HONESTLY DON'T.
(2 AA 00481: line 13 to 00482: line 25).
While much of this information is not centrally relevant to whether
Arent Fox was justified in suing Val West for defamation based upon David
Dizenfeld copying an e-mail to their own attorney, it is necessary to keep in
mind. This is because the tactic of Arent Fox has been to claim, without
foundation, that all of Val West’s complaints and communications were
done for improper purposes. Arent Fox has taken the position that any of
West’s complaints about JHA were without foundation, and were done to
obtain a reduction in rent. In addition they claim a threatening trespass
which disturbed the functioning of JHA. The evidence shows that this is not
the case.
02396-00002 165372.03
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IV.
THE ATTORNEY FEE AWARD SHOULD BE REVERSED IF
THE ORDER GRANTING THE ANTI-SLAPP MOTION IS
REVERSED.
Defendants will no longer be entitled to attorney fees if the order
granting the anti-SLAPP motion is reversed because they would no longer
be prevailing defendants. (See Code Civ. Proc., § 425.16, subd. (c)(1).)
Accordingly, the fee award must be reversed if this court reverses the order
granting the motions.
CONCLUSION
For the foregoing reasons, the order granting Arent Fox’s antiSLAPPback motion to strike Appellant’s first and second causes of action
should be reversed, along with the order awarding attorneys fees to
defendants.
Respectfully submitted,
KIRTLAND & PACKARD LLP
DATED: December 3, 2014
By:
MICHAEL LOUIS KELLY
ROBERT A. MUHLBACH
DANIEL J. QUISENBERRY
Attorneys for Plaintiff and Appellant
Val West
02396-00002 165372.03
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CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 8.204(c)(1))
I am appellate counsel in this matter. I hereby certify that pursuant
to CRC Rule 8.204(c)(1) this brief is produced using 13-point Roman type
including footnotes and contains approximately 13,266 words, as counted
by the Corel WordPerfect version 10 word-processing program used to
generate the brief, which is less than the total words permitted by the Rules
of Court.
/s/ Daniel J. Quisenberry
DATED: December 3, 2014
By:
DANIEL J. QUISENBERRY
02396-00002 165372.03
51
PROOF OF SERVICE
STATE OF CALIFORNIA
ss.
COUNTY OF LOS ANGELES A
I am employed in the County of Los Angeles, State of California. I am over the
age of 18 and not a party to the within action; my business address is 2041 Rosecrans
Avenue, Fourth Floor, El Segundo, California 90245.
On December 3, 2014, I served the foregoing document described as
APPELLANT’S OPENING BRIEF on the interested parties in this action by placing
9 the original : a true copy thereof enclosed in a sealed envelope addressed as follows:
SEE ATTACHED SERVICE LIST
:
:
:
9
:
BY MAIL (as indicated on service list): I placed the envelope for collection and mailing on December 3,
2014 at the place shown above, following our ordinary business practices. I am readily familiar with this
business’ practice for collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service in a sealed envelope with postage fully prepaid.
BY ELECTRONIC SERVICE (as indicated on service list): Pursuant to CCP § 1010.6(a)(6) and Cal. Rule
of Court 2.260, on December 3, 2014, at _________ a.m. from the electronic notification address of
[email protected], I caused the within document to be served electronically on the party listed above,
and the transmission was reported as complete and without error.
BY HAND DELIVERY (as indicated on service list): The correspondence or documents were placed in
sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein or, if upon
attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney's
office.
BY FACSIMILE: I transmitted the above document at _____ on December 3, 2014 via facsimile
transmission from fax telephone number (310) 536-1001 to the offices of the addressee at the facsimile
number listed on the attached Service List, and said transmission was reported as complete and without error.
A copy of said transmission report is attached hereto and said report was properly issued by the transmitting
facsimile machine in the normal course of operation.
OVERNIGHT DELIVERY (as indicated on service list): The correspondence or documents were placed in
sealed, labeled packaging for overnight delivery with all charges to be paid by my employer on the above date
for collection and mailing at my place of business to be deposited in a facility regularly maintained by the
overnight delivery carrier, or delivered to a courier or driver authorized by the overnight delivery carrier to
receive such packages, on this date in the ordinary course of business.
Executed on December 3, 2014, at El Segundo, California.
:
(State)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
9
(Federal)
I declare that I am employed in the office of a member of the bar of this court at whose direction
the service was made.
Candace Price
/s/ Candace Price
Type or Print Name
02396-00002 165372.03
Signature
52
PROOF OF SERVICE LIST
California Court of Appeal
Second Appellate District
300 S. Spring Street, Second Floor, N.
Tower
Los Angeles, CA 90013-1213
File: Original plus 3 copies w/proof of serv.
and 1 copy electronically submitted Delivered by Messenger
Tel: 213 830-7000
http://www.courts.ca.gov/2dca.htm
California Supreme Court
350 McAllister St.
San Francisco, CA 94102-4797
1 electronic copy
For delivery to trial judge:
Honorable Teresa Sanchez-Gordon, Dept. 74
1 copy - Delivered by Messenger
Tel: 213 974-6241
Tel: 415 865-7000
http://www.courtinfo.ca.gov/courts/supreme
Los Angeles County Superior Court
111 North Hill Street
Los Angeles, CA 90012
GIOVANNIELLO LAW GROUP
Alexander F. Giovanniello
Jeremy Hoopes
One Pointe Drive, Suite 300
Brea, CA 92821
Delivered by Overnight Mail
t: 714-364-4000
f: 714-364-4001
[email protected]
"Jeremy Hoopes" <[email protected]>
Counsel for Defendants Los Angeles
Jewish Home for the Aging AND
Defendant Nadine Roisman
ARENT FOX LLP
Jerrold Abeles
Collin Seals
555 W. Fifth Street, 48th Floor
Los Angeles, CA 90013-1065
Delivered by Overnight Mail
t: 213-629-7400
f: 213-629-7401
[email protected]
Counsel for Defendant Arent Fox LLP
Appellate Coordinator
Office of the Attorney General
Consumer Law Section
300 S. Spring Street
Los Angeles, CA 90013-1230
Delivered by Regular U.S. Mail
District Attorney’s Office
County of Los Angeles
210 West Temple Street, Suite 18000
Los Angeles, CA 90012-3210
Delivered by Regular U.S. Mail
02396-00002 165372.03
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