Strata Equity Glob. v. Persky

1

STRATA EQUITY GLOBAL, INC., Cross-complainant and Respondent, v. JORDAN BLAKE PERSKY, Cross-defendant and Appellant.

D081385

California Court of Appeals, Fourth District, First Division

January 19, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No 37-2022-00013655-CU-BC-CTL Katherine A. Bacal, Judge.

Decker Law, James Daniel Decker and Griffin R. Schindler for Cross-defendant and Appellant.

Ellenoff Grossman & Schole, Eric Neil Landau and Travis Biffar for Cross-complainant and Respondent.

DATO ACTING P. J.

Jordan Blake Persky sued his former employer, Strata Equity Global Inc. (Strata) for employment-related claims.^[1] As the litigation was proceeding, counsel for Persky informed Strata that Persky had been able to access at least one legal invoice from Strata's counsel regarding work related to Persky's lawsuit. Strata then filed a cross-complaint alleging that Persky had violated Penal Code^[2] section 502 which prohibits unauthorized access to computers, computer systems, and computer networks, by allegedly accessing Strata's "computer network and file databases" and viewing and obtaining data contained within them, including the legal invoice. Persky filed an anti-SLAPP motion (Code Civ. Proc., § 425.16), asserting that the claims in Strata's cross-complaint arose from Persky's protected activity involving the litigation between the parties. The trial court denied the motion, concluding that Strata's cross-claims against Persky are based on unprotected activity. We agree and affirm the court's order.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Cross-complaint

In April 2022, Persky filed his complaint against Strata, a real estate investing firm, alleging breach of his employment agreement and related Labor Code claims. At the time he filed the lawsuit, Persky was employed as the Managing Director of Finance, and he continued to work in that role as the litigation proceeded.

At some point after filing this action, Persky accessed Strata's accounting records through its computer network. Relevant to this appeal, Persky is alleged to have reviewed documents in a corporate management file database, one of which was a legal invoice from Strata's counsel related to Persky's action. At the time, Persky did not advise Strata he had looked at the invoice. In late May 2022, Persky's lawyer informed Strata's counsel that Persky had accessed a legal invoice.

In June 2022, Strata filed a cross-complaint against Persky, alleging a single cause of action for the violation of the Comprehensive Computer Data Access and Fraud Act, codified at section 502 of the Penal Code based on Persky's accessing of Strata's computer network and electronic files stored there.^[3] It specifically referenced as the basis for relief three subdivisions of section 502: (c)(1)(B), (c)(2), and (c)(7). The cross-complaint sought compensatory damages, which included "all expenditures to investigate Strata Global's computer network, file databases, and data" (§ 502, subd. (e)(1)), as well as punitive damages (id., subd. (e)(4)), attorney fees (id., subd. (e)(2)), and other unspecified injunctive or equitable relief "as the Court deems just and reasonable" (id., subd. (e)(1)).

B. Persky's Anti-SLAPP Motion

Persky filed a special motion to strike the cross-complaint under Code of Civil Procedure section 425.16. He asserted that Strata's cause of action for a violation of section 502 arose from his protected activity because the "gravamen of Strata's claim is that Persky impermissibly accessed Strata's files to communicate documents to his attorneys so that he could gain a litigation advantage." Persky further argued that the "claim is premised on communications by Persky's counsel to Strata's counsel relating to a legal invoice that Strata had improperly made available to Persky and other employees."

Persky's motion principally relied on the allegations in paragraphs 12, 13, 18, and 19 of the cross-complaint. These allegations are as follows:

"[W]ithout authorization, Mr. Persky has been rummaging through Strata Global's network and databases, including its corporate management database, to obtain information and documentation, such as legal invoices, which Mr. Persky knows are outside his permitted access for use against Strata Global in this litigation."

"After four months, on May 25, 2022, Strata Global's counsel finally was advised by counsel for Mr. Persky that Mr. Persky had gained access to EGS's legal invoices on Strata Global's shared company server. Strata Global is informed and believes and thereon alleges that Mr. Persky accessed at least one legal invoice and viewed its contents. Mr. Persky's counsel thereafter provide the file path for the folder that Mr. Persky accessed."

"[F]rom December 2021 to present, Mr. Persky has knowingly accessed Strata Global's computer network and file databases impermissibly to access, download, copy, or otherwise take data for his own use in his lawsuit against the company in violation of Sections 502(c)(1)(b), 502(c)(2), and 502(c)(7) of the Penal Code, Cal. Pen. Code, § 502(c), et seq."

"Mr. Persky knowingly and willfully accessed confidential and privileged litigation documents, taking the contents therein in violation of Section 502(c)(2) of the Penal Code, with malice and to irreparably harm the case for the defense in this litigation."

With respect to the second prong of the anti-SLAPP analysis, Persky argued that the litigation privilege barred Strata's claim, making it impossible for Strata to establish a probability of prevailing on its cause of action.

C. Strata's Opposition

In response to Persky's anti-SLAPP motion, Strata primarily argued that the conduct by Persky forming the basis for its cross-complaint was not a" 'written or oral statement or writing'" in an official proceeding. Rather, according to Strata, the conduct underlying its claims was Persky's "accessing, viewing, and taking privileged and confidential data from Strata Global's network . . ., not his discussions with counsel." Strata specifically disclaimed that the cross-complaint included any allegation founded on Persky's "intention to communicate any stolen data to his attorneys," contrary to Persky's argument otherwise.

Strata also asserted that, to the extent the burden was shifted to Strata to demonstrate its cross-complaint had minimal merit, it could show a probability of success on the merits. Strata maintained that Persky's status as an employee of Strata at the time of the alleged unlawful access to the computer network and databases did not bar its claim under section 502 as a matter of law. It also contended that the litigation privilege did not apply because its cross-complaint was "not premised on Mr. Persky's communication to his attorneys," but was instead "premised entirely on his conduct in illegally accessing" Strata's computer network and files.

Strata filed the declaration of one of its attorneys of record, Eric Landau, who provided further definition for the factual basis of Strata's cross-claims. Landau stated that on May 25, 2022, he received an email from Persky's lawyer "stating that one of his clients accessed a litigation invoice from [Strata's counsel of record] pertaining to this action on [Strata's] Network." Landau inquired as to which plaintiff had gained access and how the access had been gained. Counsel indicated that Persky had accessed the invoice through an "Accounts Payable folder." Landau initiated an investigation into the matter on Strata's behalf, which included interviews of relevant Strata employees. Strata filed the cross-complaint against Persky on the basis of its preliminary investigation, but at the time of the filing of the anti-SLAPP motion, Strata's investigation was still "ongoing," and it had hired a digital forensics expert to assist in the investigation. Landau indicated that individuals from his office had "spent approximately 25 hours" investigating the matter at the time of filing the opposition to Persky's anti-SLAPP motion.

Strata also submitted a declaration from Rezlyn Palma, its Chief Accounting Officer. Palma explained that Strata uses a "shared folder system to save files for documents related to" its corporate operations. Typically, Strata saves invoices and proof of payment as a single .pdf file, which is then saved in subfolders representing the month and year in which the invoice was paid, which are themselves saved within subfolder after subfolder, all of which are located within the general "Accounting" folder. The invoice and proof of payment that Persky accessed had been saved in this manner.

Finally, Strata submitted a declaration from David Thompson, a digital forensics investigator hired by Strata to investigate Persky's "computer activities . . . in the Strata Global network and company database." Thompson "was able to determine to a reasonable degree of professional certainty that" Persky used his Strata desktop computer to "access[ ] and open[ ]" the .pdf document containing the legal invoice and proof of payment that was stored on Strata's network. At the time Persky accessed the file, the invoice and proof of payment had been saved "within five layers of subfolders." Thompson indicated that he had spent more than 60 hours on his investigation, and that his rate was $350 per hour.

D. Hearing on the Anti-SLAPP Motion

The trial court provided the parties with a tentative ruling in which it indicated an intent to deny Persky's anti-SLAPP motion. The court noted that the basis for Strata's sole cause of action was the allegation that "Persky allegedly improperly accessed Strata Global's computer data," and that any allegations about the type of data...