Dutton v. Ouriel

JAMES DUTTON et al., Plaintiffs and Respondents, v. ROBERT OURIEL, Defendant and Appellant.

B305386

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

April 30, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. 19SMCV00329)

APPEAL from an order of the Superior Court of Los Angeles County, Mark A. Young, Judge. Affirmed.

Edward Weinhaus; Adam Florek (pro hac vice) for Defendant and Appellant.

Law Office of D. Joshua Staub and D. Joshua Staub for Plaintiffs and Respondents.

* * * * * * An elderly couple made a friend a short-term loan of $427,000, and the friend absconded with the money. The couple then sued the man who helped their friend persuade the bank into which she had deposited the money to release the funds to her. The man filed a motion to strike the claims against him under our anti-SLAPP statute (Code Civ. Proc., § 425.16).¹ The trial court denied the motion. This was the correct ruling, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In early 2017, Rodica Marinescu (Marinescu) was a friend of James and Patricia Dutton (collectively, the Duttons).²

In January 2017, Marinescu told the Duttons that she was the one-third owner of a property in Los Angeles, California; that she wanted to "buy out" the owners of the remaining two-thirds' interest in the property; and that she needed a balance of $427,000 in her bank account as proof that she had the financial wherewithal to purchase that interest. Marinescu asked the Duttons if they would temporarily loan her the $427,000 needed for the "proof of funds" verification, which she would pay them back once the verification issued.

The Duttons agreed, and James wrote Marinescu a check for $427,000 on Valentine's Day 2017. That same day, Marinescu deposited the check into her bank account at Wells Fargo Bank(Wells Fargo). Three days later, Wells Fargo issued a "proof of funds" letter verifying the balance in Marinescu's account.

Something then happened that Marinescu did not intend: Wells Fargo "flagged" the check "for close[] review." Until Wells Fargo completed its verification of the "issuance and the intent" of James's check, it "froze" the check by prohibiting any withdrawal against those funds.

Marinescu immediately undertook efforts to get Wells Fargo to unfreeze those funds through what, as the Duttons later alleged, were a series of "false statements" and omissions that "misrepresent[ed the] transaction concerning the $427,000." Specifically, Marinescu visited the Santa Monica branch of Wells Fargo to ask them to unfreeze the funds; she thereafter had someone place a phone call to a Wells Fargo corporate official on her behalf asking the bank to release the funds for withdrawal; and, as a follow-up to the call, she had her real estate broker send a letter on the letterhead of a brokerage company called Partners Trust formally requesting the funds to be released. In the letter, the real estate broker represented that the $427,000 check was the first disbursement of a $900,000 loan that the Duttons had made to Marinescu to assist her in purchasing a different property, and "respectfully request[ed] that Wells Fargo immediately release [Marinescu's] funds" because the freeze rendered the "proof of funds" invalid and "continu[ed] to greatly damage many parties' economic interests." The letter did not mention or even hint at possible litigation.

After receiving the letter, Wells Fargo lifted the freeze on the $427,000 check. Marinescu immediately withdrew the funds and refused to return any of the money to the Duttons.

Marinescu had enlisted Robert Ouriel (Ouriel) to assist her and the real estate broker in their efforts to persuade Wells Fargo to unfreeze the Duttons's $427,000 check. Specifically, Ouriel had accompanied Marinescu on her visit to the Santa Monica branch of Wells Fargo; he may have placed the phone call to the Wells Fargo corporate official; and he had either partially or entirely drafted the letter sent to Wells Fargo.

Although Ouriel was an attorney in Florida at that time (he was subsequently disbarred), he was not at that time (and had never been) a member of the State Bar of California and was not at that time authorized to practice law before any federal courts.

II. Procedural Background

In February 2019, the Duttons sued Marinescu's real estate broker, Ouriel, and Partners Trust for (1) aiding and abetting Marinescu's fraud, and (2) financial elder abuse because the Duttons were in their 70s and 80s.³ (The Duttons had already sued Marinescu in a separate lawsuit, which was later deemed related to this case.)

Representing himself, Ouriel filed a motion to strike the claims against him under the anti-SLAPP statute. Following briefing, and a hearing in January 2020, the trial court denied the motion to strike after concluding that the Duttons's claim did not rest on activity protected by the anti-SLAPP statute.

Ouriel filed this timely appeal.

DISCUSSION

Ouriel argues that the trial court erred in denying his motion to strike under the anti-SLAPP statute. We independently review a trial court's anti-SLAPP analysis (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3), and are accordingly not bound by the trial court's ruling or rationale (Rutgard v. City of Los Angeles (2020) 52 Cal.App.5th 815, 825). Because Ouriel has not on appeal challenged any of the trial court's evidentiary rulings, we will consider only the evidence that the trial court considered. (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 889-891 (Lahiji).)

I. The Anti-SLAPP Statute

A. Generally

The anti-SLAPP statute "provides a procedure for weeding out, at an early stage, meritless claims arising from" activity that is protected by that statute. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) "Accordingly, a trial court tasked with ruling on an anti-SLAPP motion must ask two questions: (1) has the moving party 'made a threshold showing that the challenged cause of action arises from protected activity' [citation], and, if so, (2) has the nonmoving party 'established . . . a probability that [they] will prevail' on the challenged cause of action by showing that the claim has 'minimal merit' [citations]?" (Lahiji, supra, 40 Cal.App.5th at p. 887.)

The first question—that is, whether a cause of action arises from protected activity—"turns on two subsidiary questions: (1) What conduct does the challenged cause of action 'arise[] from'; and (2) is that conduct 'protected activity' under the anti-SLAPP statute?" (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698 (Mission Beverage).) "A cause of action'arises from' protected activity when the 'cause of action itself' is 'based on' protected activity. [Citations.] Whether a cause of action is itself based on protected activity turns on whether its "'"principal thrust or gravamen"'" is protected activity—that is, whether the "'core injury-producing conduct'" warranting relief under that cause of action is protected activity." (Id., quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114 (Briggs); Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 134.) What conduct "is protected under the anti-SLAPP statute" turns "not [on] First Amendment law, but [rather on] the statutory definitions in . . . section 425.16, subdivision (e)." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) As pertinent here, subdivision (e) of section 425.16 defines protected activity to include "any written or oral statement or writing" made "before a legislative, executive, or judicial proceeding" or "in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1) & (2).)

In assessing whether a cause of action arises from protected activity, a trial court must consider "the pleadings" as well as the "supporting and opposing affidavits stating the facts upon which the liability or [a] defense is based." (§ 425.16, subd. (b)(2).) However, the pleadings are of "primary" importance because the plaintiff is the architect of his or her own complaint, such that the "core injury-producing conduct" at issue in a case is primarily a function of "what is pled—not what is proven." (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936-937(Bel Air Internet); Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.)

B. Communications in connection with judicial and other proceedings

By its plain terms, the definitions of protected activity that reach communications made "before a" "judicial proceeding" or "in connection with an issue under consideration or review by" a "judicial body" or "any other official proceeding authorized by law" encompass statements made directly to judicial, administrative, and arbitral tribunals as well as statements made to others that relate to ongoing proceedings before those tribunals. (Briggs, supra, 19 Cal.4th at p. 1115 ["'"basic act of filing litigation or otherwise seeking administrative action"'"; protected]; Beach v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 94 (Beach) [same, as to arbitrations]; Collier v. Harris (2015) 240 Cal.App.4th 41, 54 [settlement demand letter; protected]; O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 566 (O&C Creditors) [settlement agreement; protected]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490 [statements made during witness preparatory interviews; protected].)

These definitions of protected activity also...