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LEWIS BRISBOIS BISGAARD & SMITH LLP
ALEX A. GRAFT, SB# 239647
E-Mail: Alex.Graft@lewisbrisbois.com
JESSICA L. BEELER, SB# 268939
FILED
E-Mail: Jessica. Beeler@lewisbrisbois.com SAN MATEO COUNTY
333 Bush Street, Suite 1100 FEB.2 6 Zorg
San Francisco, California 94104-2872
Telephone: 415.362.2580 Clerkot parlor Court
Facsimile: 415.434.0882
Attorneys for Defendants
CHARLES DAVID SPENCE,
ROYSE LAW FIRM, PC, and
ROGER ROYSE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
12 RAPHELLE GABRIEL, an individual, CASE NO. 18-CIV-06731
13 Plaintiff, DEFENDANTS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
14 vs. SUPPORT OF ANTI-SLAPP SPECIAL
MOTION TO STRIKE PLAINTIFF'S
15 CHARLES DAVID SPENCE, an individual, COMPLAINT PURSUANT TO CODE OF
ROYSE LAW FIRM, PC, a professional CIVIL PROCEDURE § 425.16
16 corporation, ROGER ROYSE, an individual,
CHARLES W. KING, III, an individual, and Date: April 10, 2019
17 DOES 1 to 50, inclusive, Time: 9:00 a.m.
Dept.: Law & Motion
18 Defendants.
Action Filed: December 17, 2018
19 Trial Date: None Set
20
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_ ~
1 Menerandum of Points and Authorities in sup}
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22 1670512
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BRISBOIS 4830-3995-9942.1 1
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP- TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
TOROS ASLAN
TABLE OF CONTENTS
Page
3]1 INTRODUCTION
4|/11 STATEMENT OF FACTS.
A Defendant Attorneys Assist Chuck with His Estate Plan.
B Defendant Attorneys Advise Charlie, but Not Plaintiff, After the Death of
Chuck
Cc. Charlie and Plaintiff Take Different Legal Positions As to Whether Plaintiff
Owes Estate Taxes
D. Plaintiff Sues Defendants for Taking the Position that She Owes Estate
Taxes
10
TIL. LAW AND ARGUMENT 10
ll
A The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing
12 Litigation Targeting Protected Activity 10
13 B Plaintiffs Claims Against Defendant Attorneys In Relation to Advocacy in
the Underlying Probate Action Arise From Protected Activity 11
14
Plaintiff Cannot Establish A Probability Of Prevailing 13
15
1 The Litigation Privilege Bars Plaintiff's Claims against Defendant
16 Attorneys Arising Out of Their Advocacy of Charlie’s Position. 13
17 Plaintiffs Claimss against Defendant
D nt Attomeys are
a Barredd by Public
Pi
Policy... 14
18
Plaintiff Cannot Prevail on Herer Superfluous Request for
f ot Declaratory
19 Relief... 16
20 Plaintiff Cannot Substantiate Each Element of faa Legal Malpractice
or Breach of Fiduciary Duty Claim... 16
21
@ Plaintiff Has Conceded That She Cannot Demonstrate the
22 Element of Damage 16
(b) Plaintiff Cannot Demonstrate the Element of A Duty
Necessary to Plead Either of Her Claims foror Malpractice or
24 Breach of Fiduciary Duty..... 17
25 IV. CONCLUSION 19
26
27
28
LEWIS
BRISBOIS 4830-3995-9942.1
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
& SMITH LLP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATIORNESA LAW
TABLE OF AUTHORITIES
Page
Cases
Alberston y. Rabo;
(1956) 46 Cal.2d 375 13
Baral v, Schnitt
(2016) 1 Cal.5th 376 11
Biakanja v. Irving
(1958) 49> Cal, 2d 647 17
Boranian v. Clark
(2004) 123 Cal. App. 4th 1012. 18
10 Borissoff v. Taylor & Faust
(2004) 33 Cal.4th 523 17
11
Braun v. Chronicle Publishing Co.
12 (1997) 52 Cal.App.4th 1036 il
13 Briggs v. ECHO
(1999) 19 Cal.4th 1106 12
14
Buckley v. Gray
15 (1895) 110 Cal. 339... 17
16 Budd vy. Nixen
(1971) 6 Cal.3d 195 16
17
Cabral y, Martins
18 (2009) 177 Cal.App.4th 471 12
19 Cassel v. Superior Court
(2011) 51 Cal.4th 113 15
20
Chang v. Lederman
21 (2009) 172 Cal.App.4th 67 18,19
22 Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628 11
23
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
24 (1996) 47 Cal.App.4th 77... i
25 Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400 12
26
Fox Searchlight Pictures, Inc. v. Paladino
27 (2001) 89 Cal.App 4th 294. 11
28
BRISBOIS 4830-3995-9942.1
BISGAARD. DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATIORNENS
AF LAW
Harris v. King
(1998) 60 Cal.App.4th 1185 14
Lafayette Morehouse, Inc. v, Chronicle Publishing Co.
(1995) 37 Cal.App.4th 855 10
Lucas v. Hamm
(1961) 56 Cal.2d 583 18
Ludwig v. Superior Court
(1995) 37 Cal.App.4th 8 ll
Malin v. Singer
(2013) 217 Cal.App.4th 1283
McDermott, Will & Emery v. Superior Court
(2000) 83 Cal.App.4th 378 15
10 Moore v. Anderson Zeigler Disharoon Gallagher & Gray
(2003) 109 Cal.App.4th 1287... 17
11
Navellier v. Sletten
12 (2002) 29 Cal.4th 82. ll
13 Neville v. Chudaco;
(2008) 160 Cal.App.4th 1255 12
14
O'Neil v, Cunningham
15 (1981) 118 Cal.App.3d 466 14
16 Reilly v. Greenwald & Hoffman, LLP
(2011) 196 Cal.App.4th 891... 15
M7
Rubin v. Green
18 (1993) 4 Cal.4th 1187 13
19 Rusheen v. Cohen
(2006) 37 Cal.4th 1048 11,12
20
Seltzer v. Barnes
21 (2010) 182 Cal.App.4th 953 14
22 Silberg v. Anderson
(1990) 50 Cal.3d 205. 13
23
Smith v. Hatch
(1969) 271 Cal.App.2d 39 13
25 Solin v. O’Melveny & Myers
(2001) 89 Cal.App.4th 451 14,15
26
Thayer v. Kabateck Brown Kellner LLP
27 (2012) 207 Cal.App.4th 141. 13
28
LEWIS
BRISBOIS 4830-3995-9942.1 4
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP. TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATIORENS ATLAW
Statutes
Civil Code section 47(b) ........... 13
Code of Civil Procedure § 425.16 passim
Code of Civil Procedure § 430.10 (c) 16
Evid. Code § 953. 15
Evid. Code § 954.0... 15
Evid. Code § 955... 15
Other Authorities
Internal Revenue Code Section 2207A.
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LEWIS 4830-3995-9942.1
BRISBOIS
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP TO STRIKE PLAINTIFF*S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATORNENGATLAW
I. INTRODUCTION
Plaintiff RAPHELLE GABRIEL’s (‘Plaintiff’) above captioned lawsuit against
Defendants CHARLES DAVID SPENCE, ROYSE LAW FIRM, PC, and ROGER ROYSE
(collectively “Defendant Attorneys”), former attorneys of Plaintiff's step-father, Charles W. King,
Jr. (‘Chuck”), seeks to impose liability on Defendant Attorneys, in part, for the legal positions
they have taken in litigation over Chuck’s Estate, in which Plaintiff is an adverse party
(‘Underlying Probate Litigation”). In the Underlying Probate Litigation, Defendant Attorneys
filed a petition for instructions on behalf of the trustee to Chuck’s Trust (who is also Chuck’s son
and a co-defendant in the present action, CHARLES W. KING, III, hereinafter referred to as
10 “Charlie”), seeking permission to prorate estate taxes owed by Plaintiff. Plaintiff suggests
il Defendant Attorneys (and Charlie) have breached duties owed to her merely as a result of
12 asserting that right to petition in the Underlying Probate Litigation on behalf of Charlie. Thus,
13 that aspect of Plaintiff's Complaint constitutes SLAPP! and is correspondingly subject to the anti-
14 SLAPP statute set forth in Code of Civil Procedure section 425.16 (“anti-SLAPP statute”).
15 Under the anti-SLAPP statute, in order to proceed with any SLAPP claims, Plaintiff must
16 produce evidence demonstrating she has a probability of prevailing on the merits of her claims.
17 Plaintiff, however, cannot meet this burden because her SLAPP claims are (1) barred by the
18 litigation privilege, (2) barred by public policy, and (3) fail on the merits, as Plaintiff is unable to
19 substantiate either of her causes of action against Defendant Attomeys for malpractice and breach
20 of fiduciary duty, let alone the specific SLAPP allegations. That is, in addition to the litigation
21 privilege and public policy bar, Plaintiff cannot show that Defendant Attorneys owed her a duty of
22 care in the first instance, as they have never represented her in an individual capacity (nor have
23 they even really met her, for that matter). Accordingly, Defendant Attorneys request that this
24 Court grant this anti-SLAPP motion and declare Defendant Attorneys prevailing parties.
25
26
27 1 SLAPP is an acronym for “strategic lawsuit against public participation.” (Malin v. Singer
(2013) 217 Cal.App.4th 1283, 1287, fn 1.)
28
LEWIS
BRISBOIS 4830-3995-9942.1 6
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP
ATOMEYSATLAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
Il. STATEMENT OF FACTS
A Defendant Attorneys Assist Chuck with His Estate Plan
Chuck was a successful real estate developer and entrepreneur who married his second
wife, Deborah A. King (“Debe”), in 1995. Plaintiff is Debe’s daughter from a prior relationship,
and therefore, the step-sister to Charlie. Chuck hired Defendant Attorneys in 2014 to prepare his
Estate plan, including a Trust on his behalf (referred to in the Complaint as the “CWK. Trust”)?
(See Complaint at J 11; see also Declaration of David Spence (“Spence Decl.”) at { 3.) To that
end, Defendant Attomey prepared, and Chuck executed, a sixth amendment to the CWK Trust,
which at that time provided that Plaintiff would receive a one-fourth share of the remainder
10 interest therein. (Spence Decl. at {{ 7, 11.) Debe retained separate counsel, Berliner Cohen, to
il prepare her own Trust (referred to in the Complaint as the DAK Trust). (Complaint at § 19; see
12 Spence Decl. at { 5.)
13 The DAK Trust provided that, if Chuck survived Debe, the bulk of the assets of the DAK
14 Trust would be distributed to (and would form) the King QTIP Share Trust (the “QTIP Trust”).
15 (Spence Decl. at { 6; see Complaint at { 19.) Chuck was named successor trustee of the DAK
16 Trust and its sole income beneficiary for his remaining lifetime, and Plaintiff later became the sole
7 beneficiary of the QTIP Trust upon Chuck’s death. (Spence Decl. at § 6.)
18 When Debe passed away unexpectedly in 2616, Chuck became the acting trustee of the
19 DAK Trust, and Defendant Attorneys represented him in that capacity, although the bulk of the
20 DAK Trust assets were transferred to form the QTIP Trust. (See Spence Decl. at { 8.) Several
21 months later, Chuck retained Defendant Attorneys to make a seventh amendment to the CWK
22 Trust, effectively eliminating Plaintiff as a beneficiaryto his Estate. (Spence Decl. at J 10- 11.)
23 The CWK Trust (part of Chuck’s Estate) and the QTIP Trust (in which Plaintiff was still a
24 remainder beneficiary) each owned a 50% undivided interest in Chuck’s primary residence in
25 Atherton (the “Atherton Property”). (Complaint. at § 20; see Spence Decl. at ¥ 12.)
26
27 2 Chuck had also established a separate trust for Plaintiff in 1997 known as the Raphelle A.
Gabriel Trust (the “Raphelle Trust”). (See Complaint at J 21.)
28
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BRISBOIS 4830-3995-9942.1 7
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHLUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
OMEGA
B. Defendant Attorneys Advise Charlie, but Not Plaintiff, After the Death of Chuck
When Chuck passed away the following year, Charlie became successor trustee of the
CWK Trust, and retained Defendant Attorneys to advise him concerning, among other issues,
estate tax liability for Chuck’s estate, including implication for the anticipated sale of the Atherton
Property. (See Spence Decl. at ff 13-15.)
While Plaintiff baldly asserts her interests “were believed to be represented by Defendant
Law Firm and/or Attorneys” (see Complaint at 16), Defendant Attorneys never signed a
representation agreement with Plaintiff, never provided Plaintiff with legal services, and in fact,
have never even met Plaintiff. (Spence Decl. at 4 18, 20, 21; Declaration of Roger Royse at {{ 3-
10 6.) Throughout the period that Defendant Attorneys represented Chuck, and later, Charlie,
il Plaintiff was seemingly represented at all times by another law firm. (See Spence Decl. at ff] 9,
12 19)
13 Cc. Charlie and Plaintiff Take Different Legal Positions As to Whether Plaintiff Owes
Estate Taxes
14
15 After the eventual buyer of the Atherton Property deposited a down payment, Plaintiff
16 sought half of this amount on the basis that the QTIP Trust owned a 50% share of the Atherton
i7 Property (the CWK. Trust owned the other half). (Spence Decl. at ¢ 16; Complaint at § 21.) But
18 because Plaintiff's pro rata share of estate taxes exceeded the amount of half the down payment,
19 Charlie proposed satisfying the half share from the sale of the Atherton Property by crediting that
20 amount toward Plaintiff's share of estate taxes owed by Chuck’s Estate.> (See Spence Decl. at
21 16.) Unable to reach an agreement, Defendant Attorneys petitioned the Court on Charlie’s behalf
22 for instructions concerning the estate taxes owed by Plaintiff. (Spence Decl. at J 17.)
23 Charlie’s Petition for Instructions (the “Petition”), filed by Defendant Attorneys on his
24 behalf on May 16, 2018, “concern[{ed] the internal affairs of the CWK Trust.” (See Exh. A to
25 Request for Judicial Notice (“RFJN”) [Petition for Instructions], at p. 2, | 4; Exh. A to Spence
26
3. Plaintiff alleges that of the $6 Million Charlie paid to the Internal Revenue Service to cover
27 Chuck’s'estate taxes, Charlie seeks reimbursement of $1.5 Million from the QTIP Trust.
(Complaint, 9§23, 24; see Spence Decl. at § 14.)
28
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BRISBOIS 4830-3995-9942.1 8
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMEHLP TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATIORNES ATLA
Decl., [Petition for Instructions].) It acknowledged that the CWK Trust and the QTIP Trust each
owned 50% of the Atherton Property (id. at p. 2 § 10), and that “Fifty percent of the down
payment” from the sale of the Atherton Property “is allocable to the QTIP Trust.” (Id. at p. 3, J
11.) The Petition further noted, however, that “the amount of estate tax attributable to the QTIP
Trust assets ... is $1,463,458,” (id. at p. 3, § 14), and that Chuck’s estate is “entitled to
reimbursement from the QTIP Trust for the QTIP Estate Taxes” of no less than $980,000*. Ud. at
p. 4,415.) The Petition accordingly requested instructions from the Court on whether Charlie
“should be entitled to offset the Deposit Amount [from the Atherton Property] against the amount
to be recovered from the QTIP Trust.” (Id. at p. 5, { 23.) Specifically, the Petition made the
10 single request for “an order from this Court to retain the Deposit Amount as a reduction in or
11 initial payment toward the QTIP Estate Taxes.” (/d. at p. 5,925.) Notably, Plaintiff refers in her
12 Complaint to those assertions by Defendant Attorneys, made on Charlie’s behalf in the Underlying
13 Probate Action, as “Charlie’s Position.” (Complaint, ff 24, 32.)
14 D. Plaintiff Sues Defendants for Taking the Position that She Owes Estate Taxes
15 In contrast to Charlie’s Position, Plaintiff alleges neither she, nor the QTIP Trust, needs to
16 pay any estate taxes, but most crucially, that by asserting Charlie’s Position in the Underlying
17 Probate Action, both Charlie and Defendant Attorneys breached duties owed to her which may
18 have caused her damage.’ (Complaint, 4124, 26, 37, 44.) Plaintiff alleges in paragraph 24 of her
19 Complaint that “Charlie’s position . . . is a violation of his duties as trustee” and in paragraph 26
20 that Defendant Attorneys “advised, instructed or carried out Charlie’s violation of his duties as
21 trustee.” In paragraph 32, Plaintiff alleges that if “Charlie’s Position is incorrect ... a breach of
22
4 Pursuant to Internal Revenue Code Section 2207A, when a decedent surviving spouse’s Estate
23 (the CWK Trust) pays estate taxes arising from the value of a QTIP trust of the pre-deceased
spouse included in the decedent surviving spouse’s taxable estate, the Estate of the decedent
24 surviving spouse is entitled to recover those taxes from the person who is receiving the QTIP
assets (Plaintiff).
25
5 Plaintiff's position is that the Probate Code provisions proscribing equitable proration of estate
26 taxes do not apply if the testator expresses contrary intent in a testamentary instrument.
(Complaint at {J 25-26.) Plaintiff contends that Chuck, as expressed in his will and in the CWK
27 Trust, intended for all of his estate taxes to be paid out of the CWK Trust. (Complaint at 27.)
She claims that Chuck also informed her that she would not have to pay any estate taxes.
28
LEWIS 4830-3995-9942.1
BRISBOIS
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATTORNEY ATLAW
fiduciary duty has occurred that may or may not have damaged Plaintiff.” Paragraph 37 includes
the allegation that “Charlie is breaching his fiduciary duty . . . by taking positions adverse to his
beneficiary,” and further, in paragraph 44, that Defendant Attorneys “had a duty not to represent
the interest of Charlie . . . in which they would be advocating Charlie’s position. ...” Put it
altogether, and clearly, Plaintiff's allegations against Defendant Attorneys involve not only the
claim that Defendant Attomeys failed to properly advise Chuck,® but further, that advocating
Charlie’s Position in the Underlying Probate Action also breached duties to her, for which she
seeks redress in the present action.’
Ill. LAW AND ARGUMENT.
10 A. The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing Litigation
Targeting Protected Activity )
M1
12 Code of Civil Procedure section 425.16 is a procedural remedy designed to quickly dispose
13 of lawsuits that infringe upon the valid exercise of constitutional rights. (Lafayette Morehouse,
14 Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865.) Section 425.16(b)(1) provides:
15 A cause of action against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States or California Constitution
16 in connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
17 plaintiff will prevail on the claim.
18
Section 425.16 was amended in January 1997 to resolve conflicting interpretations of the
19
20
21 6 Plaintiff alleges in that regard that Chuck directed Defendant Attorneys to set up the CWK.
Trust to cover all of his estate taxes, or alternatively, that Defendant Attorneys should have known
22 to obtain waivers of any right of reimbursement of the CWK Trust to reflect Chuck’s intent that
the CWK Trust cover all taxes. (Complaint at { 30.) Plaintiff claims that Chuck directed that his
23 estate taxes would only be prorated if the CWK Trust was not in existence at his death, or had
insufficient assets to cover his estate taxes. (Complaint at 27.) Plaintiff refers to the relevant
24 provisions in Chuck’s testament instruments as the Will Proration Clause, and the Trust
Proration Clause (collectively, “Chuck’s Proration Clauses”). (Complaint at {f] 27-28.)
25 7 Although Plaintiff alleges that the Defendant Law Firm and Defendant Attorneys represented
her,-(see Complaint at § 5), Defendant Attorneys deny this, under oath. (See Spence Decl. at ff
26 18-21; Royse Decl. at {{] 3-6.) Defendant Attorneys never signed a representation agreement with
Plaintiff for legal services. (Spence Decl. at § 20; Royse Decl. at ] 5.) To be sure, none of the
27 Defendant Attorneys ever even met Plaintiff. (Spence Decl. at | 21; Royse Decl. at ]6.) At the
same time, Plaintiff can offer no evidence to the contrary.
28
LEWIS 4830-3995-9942.1
BRISBOIS
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATOR ATUW
statute issued by the appellate courts. The Legislature stated that henceforth the statute “shall be
construed broadly.” (Code Civ. Proc. §425.16(a).)
In determining whether to grant an anti-SLAPP motion, courts engage in a two-step
process, First, Defendant Attorneys must establish that the challenged claim arises from activity
protected by section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; Braun y. Chronicle
Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Defendant Attorneys meet this burden by
showing that the claimed wrongful act falls within one of the categories set forth in section
425.16, subdivision (e). (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Once Defendant
Attorneys meet their burden, the burden shifts to Plaintiff to establish through an evidentiary
10 showing that there is a probability that she will prevail on the claim. (Code Civ. Proc., § 425.16,
11 subd. (6)(1); Navellier, supra, 29 Cal.4th at p. 88; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
12 (1996) 47 Cal.App.4th 777.) The second step is described as a “summary judgment-like
13 procedure.” (Baral, supra, 1 Cal.5th at p. 384.)
14 A defendant does not need to demonstrate that the plaintiff's suit is intended “to chill the
15 defendant’s exercise of First Amendment rights or that the suit had such an effect.” (Fox
16 Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.) Furthermore, if a cause of
17 action alleges protected and non-protected activities under the label of one cause of action, the
18 entire cause of action is subject to a motion to strike. (/d. at 308; Baral, supra. at p. 382.)
19 B. Plaintiff's Claims Against Defendant Attorneys In Relation to Advocacy in the
Underlying Probate Action Arise From Protected Activity
20
21 It is well-settled that claims based on “litigation-related activity” are subject to section
22 425.16. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648 [A cause of
23 action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section
24 425.16 motion to strike.”], emphasis added.) The statute specifically applies to “any act ... in
25 furtherance of the ... right [to] petition.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19;
26 see Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [“‘any act’ includes communicative conduct
27 such as the filing, funding, and prosecution of a civil action”].)
28 Accordingly, “all communicative acts performed by attorneys as part of their
LEWIS 4830-3995-9942.1
BRISBOIS i
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
ATIONNES
A UAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
representation of a client in a judicial proceeding or other petitioning context are per se protected
as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th
471, 480.) That breadth includes any communicative conduct which relates to, or bears some
connection to a “judicial proceeding.” (See Briggs v. ECHO (1999) 19 Cal.4th 1106, 1115
{counseling of a tenant regarding a Housing and Urban Development proceeding constituted
protected activity]; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1267-1268 [litigation
privilege applies to any communicative conduct which bears “some relation” to a proceeding];
Cabral, supra, at p. 485.)
Along those same lines, statements protected under the litigation privilege (discussed
10 below) are “equally entitled to the benefits of section 425.16.” (Briggs, supra, 19 Cal.4th at p.
i 1115, internal citations omitted.) Thus, litigation activity is per se protected under the anti-SLAPP
12 statute. (Rusheen, supra, at p. 1056; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-
13 1420 [claim against attorney defendant for alleged misconduct on behalf of client during
14 underlying litigation subject to the anti-SLAPP statute].)
15 While Plaintiff. attempts to distance herself from SLAPP exposure, alleging that “[t]his
16 complaint does not arise out of any litigation . . .,” (Complaint, { 12), the subsequent allegations in
17 her Complaint tell an entirely different story. Plaintiff's claims against Defendant Attorneys
18 directly implicate conduct irextricably intertwined with Defendant Attorneys’ representation of
19 Charlie in relation to the Underlying Probate Action. To be sure, Plaintiff expressly concedes later
20 in the Complaint that her claims against Defendant Attorneys arise out of Defendant Attorneys’
21 “advocating Charlies [sic] Position” in the Underlying Probate Action (Complaint, § 44), and that
22 Defendant Attorneys’ alleged activities relating to “advising Charlie” in the Underlying Probate
23 Action constitute a breach of duty on their part to her (Complaint, 26) “by taking positions
24 adverse to his beneficiary” (Plaintiff) (Complaint, 37); plainly litigation activity which is per se
25 protected by the anti-SLAPP statute. That is, in addition to the other grounds alleged in the
26 Complaint unrelated to the pending Underlying Probate Action, Plaintiff also plainly seeks to
27 impose liability on the Defendant Attorneys based on their exercise of constitutionally-protected
28 activity, namely, representing their client, Charlie, and assisting him with the Underlying Probate
BRISBOIS 4830-3995-9942,1 1
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHLP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATTORNEY ATUW
Action, placing those of Plaintiff's claims squarely within the ambit of the anti-SLAPP statute.
c. Plaintiff Cannot Establish A Probability Of Prevailing
Since Plaintiff's claims fall within the first prong of the anti-SLAPP statute, Plaintiff must
make a prima facie showing of facts that would, if proved at trial, support a judgment in her favor
as to her SLAPP claims. (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141,
159.) Plaintiff cannot meet this burden as to any of her claims, let alone those that are SLAPP.
1 The Litigation Privilege Bars Plaintiff's Claims against Defendant Attorney:
Arising Out of Their Advocacy of Charlie’s Position
The litigation privilege is set forth in Civil Code section 47(b), which states that “[a]
10 privileged publication or broadcast is one made: . . . (b) In any . . . (2) Judicial proceeding... .”
i The California Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212, held that the
12 litigation privilege is absolute, immunizing litigants and their attorneys from all causes of action
13 based on statements made during the course of judicial proceedings, with the exception of
14 malicious prosecution:
15 In furtherance of the public policy purposes it is designed to serve, the privilege
described by § 47(2} has been given broad application. Although originally
16 enacted with reference to defamation (citations), the privilege is now held
applicable to any communication, whether or not it amounts to a publication
17 (citations), and all torts except malicious prosecution. (Citations)
(Ibid.)
19 Courts have correspondingly given broad application to the litigation privilege. “To be
20 privileged under subdivision 2 of section 47, the defamatory matter need not be relevant, pertinent
21 or material to any issue before the court, it only need have some connection or some relation to the
22 judicial proceeding.” (Smith v. Hatch (1969) 271 Cal.App.2d 39, 46.) Along the same lines, i
Rubin v. Green (1993) 4 Cal.4th 1187, the California Supreme Court held:
24 For well over a century, communications with ‘some relation’ to judicial
proceedings have been absolutely immune from tort liability by the privilege
25 codified as section 47 (b). At least since then-Justice Traynor’s opinion in
Alberston y. Raboff (1956) 46 Cal.2d 375, California courts have given the
26 privilege an expansive reach .... In light of this extensive history, it is late in the
27 day to contend that communications with ‘some relation’ to an anticipated lawsuit
are not within the privilege.
28
LEWIS
BRISBOIS. 4830-3995-9942.1 13
BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
& SMIHUP. TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
ATOR ATLAW
(Id. at 1193-1194.)
Even communicative conduct outside of judicial proceedings is protected by the litigation
privilege, so long as those statements have some connection or relation to the litigation process.
(O'Neil +. Cunningham (1981) 118 Cal.App.3d 466, 475; Harris v. King (1998) 60 Cal.App.4th
1185, 1188; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 972.)
Here, Defendant Attorneys’ allegedly wrongful conduct comprising SLAPP consists of
advocating the legal position that Plaintiff and/or the QTIP Trust owe estate taxes, and advising
Charlie that the QTIP Trust may be liable for a portion of estate taxes. (See, e.g., Complaint at 4]
24, 26, 37, 44.) Even if it supposedly breaches duties to Plaintiff, advocating Charlie’s Position in
10 the Underlying Probate Action is absolutely privileged. Accordingly, Plaintiff cannot prevail on
Ml her claims that by asserting Charlie’s Position in the Underlying Probate Action, Defendant
12 Attorneys breached duties to her and may have caused her damage as a result.
13 2. Plaintiff's Claims against Defendant Attorneys are Barred by Public Policy
14 Additionally, Plaintiff's entire causes of action for malpractice and breach of fiduciary
15 duty are barred as a matter of public policy, which provides that since Defendant Attorneys cannot
16 defend against Plaintiff's claims without disclosing attorney-client privileged communications,
17 such claims cannot be pursued against them as a matter of law. (See Solin v. O’Melveny & Myers
18 (2001) 89 Cal.App.4th 451.} In Solin, the defendant (Solin) sought advice from the O’Melveny &
19 Myers law firm (“O’Melveny”) concerning Solin’s representation of his clients Reich and Jossem
20 pertaining to the clients’ criminal activities. (Jd. at 455.) Solin subsequently filed a lawsuit for
21 professional malpractice against O’Melveny, claiming the advice O’Melveny gave Solin was
22 erroneous. (/d. at 455-56.) The trial court dismissed the action, determining that O’Melveny
23 could not defend itself without revealing information Solin had given O’Melveny about Solin’s
clients that was protected by the attorney-client privilege. (/d. at 456.) The appellate court in
25 Solin affirmed the dismissal of the case because the litigation of Solin’s claim against O’Melveny
26 would have required the disclosure of Solin’s attorney-client communications with the clients.
27 (id. at 462-67.) The appellate court focused on O’Melveny’s claim that it “cannot defend this
28 professional negligence case without disclosing privileged evidentiary details revealed by Solin in
LEWIS
BRISBOIS 4830-3995-9942.1 14
BISGAARD. DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION
&SMIHUP
ATIOMEYSATLAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16
the course of seeking that advice from [defendant].” (Jd. at 462.) The court further reasoned:
“Tf, however, O’Melveny is made to defend itself without use of the Client Secrets,
and ajury returns a verdict for Solin, we cannot know whether the verdict would
have been different had O’Melveny been permitted to present all relevant evidence
regarding its consultation with Solin, including the Client Secrets.”
(ibid.; cf. McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378 [dismissing
shareholder’s derivative action because attorney-client privilege prevented corporate counsel from
mounting defense]; Reilly v. Greenwald & Hoffman, LLP (2011) 196 Cal.App.4th 891 [same];
Cassel v. Superior Court (2011) 51 Cal.4th 113 (dismissing legal malpractice claim where
.
mediation confidentiality applied].)
10 As in Solin, McDermott, and Reilly, Defendant Attorneys’ ability to defend themselves is
11 constrained by the attorney-client privilege held by their current client, Charlie, and in relation to
12 the remaining aspects of both the malpractice and breach of fiduciary duty claim, as owed to
13 Chuck. Defendant Attorneys cannot waive this privilege on behalf of their clients. (See Evid.
14 Code §§ 953, 954.) Indeed, Defendant Attorneys are required to assert the privilege with respect
15 to any attempt to obtain privileged information, absent authorization to the contrary. (Evid. Code
16 § 955.) Moreover, Plaintiff, who was never Defendant Attomeys’ client, likewise lacks the
17 capability of waiving Chuck’s or Charlie’s attorney-client privilege. (See McDermott, supra, 83
18 Cal.App.4th at p. 383.)
19 Because Defendant Attorneys are foreclosed from discussing confidential communications
20 with their client concerning the Complaint’s allegations, including the circumstances surrounding
21 Chuck’s estate planning and its administration, they are therefore prohibited from presenting
22 critical evidence necessary to defend themselves against claims of professional negligence and
23 breach of fiduciary duty. (See, e.g., Spence Decl., at] 18.) To the extent the First Cause of
24 Action requires the Court to examine Defendant Attomeys’ legal position regarding “the rights
25 and duties of Chuck’s position,” and “whether Plaintiff is liable for any estate taxes” (see
26 Complaint at 51), public policy similarly precludes Plaintiff from maintaining her claim for
27 declaratory relief against Defendant Attorneys.
28
BRISBOIS 4830-3995-9942,i. 1
Preview
a gh LEWIS BRISBOIS BISGAARD & SMITH LLP ALEX A. GRAFT, SB# 239647 E-Mail: Alex.Graft@lewisbrisbois.com JESSICA L. BEELER, SB# 268939 FILED E-Mail: Jessica. Beeler@lewisbrisbois.com SAN MATEO COUNTY 333 Bush Street, Suite 1100 FEB.2 6 Zorg San Francisco, California 94104-2872 Telephone: 415.362.2580 Clerkot parlor Court Facsimile: 415.434.0882 Attorneys for Defendants CHARLES DAVID SPENCE, ROYSE LAW FIRM, PC, and ROGER ROYSE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 RAPHELLE GABRIEL, an individual, CASE NO. 18-CIV-06731 13 Plaintiff, DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN 14 vs. SUPPORT OF ANTI-SLAPP SPECIAL MOTION TO STRIKE PLAINTIFF'S 15 CHARLES DAVID SPENCE, an individual, COMPLAINT PURSUANT TO CODE OF ROYSE LAW FIRM, PC, a professional CIVIL PROCEDURE § 425.16 16 corporation, ROGER ROYSE, an individual, CHARLES W. KING, III, an individual, and Date: April 10, 2019 17 DOES 1 to 50, inclusive, Time: 9:00 a.m. Dept.: Law & Motion 18 Defendants. Action Filed: December 17, 2018 19 Trial Date: None Set 20 we 21 (Ge-ow—06731 _ ~ 1 Menerandum of Points and Authorities in sup} | | | | | | | | | i il | 22 1670512 23 24 XN - _ — --— - ee om 25 ce. 28 BRISBOIS 4830-3995-9942.1 1 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP- TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 TOROS ASLAN TABLE OF CONTENTS Page 3]1 INTRODUCTION 4|/11 STATEMENT OF FACTS. A Defendant Attorneys Assist Chuck with His Estate Plan. B Defendant Attorneys Advise Charlie, but Not Plaintiff, After the Death of Chuck Cc. Charlie and Plaintiff Take Different Legal Positions As to Whether Plaintiff Owes Estate Taxes D. Plaintiff Sues Defendants for Taking the Position that She Owes Estate Taxes 10 TIL. LAW AND ARGUMENT 10 ll A The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing 12 Litigation Targeting Protected Activity 10 13 B Plaintiffs Claims Against Defendant Attorneys In Relation to Advocacy in the Underlying Probate Action Arise From Protected Activity 11 14 Plaintiff Cannot Establish A Probability Of Prevailing 13 15 1 The Litigation Privilege Bars Plaintiff's Claims against Defendant 16 Attorneys Arising Out of Their Advocacy of Charlie’s Position. 13 17 Plaintiffs Claimss against Defendant D nt Attomeys are a Barredd by Public Pi Policy... 14 18 Plaintiff Cannot Prevail on Herer Superfluous Request for f ot Declaratory 19 Relief... 16 20 Plaintiff Cannot Substantiate Each Element of faa Legal Malpractice or Breach of Fiduciary Duty Claim... 16 21 @ Plaintiff Has Conceded That She Cannot Demonstrate the 22 Element of Damage 16 (b) Plaintiff Cannot Demonstrate the Element of A Duty Necessary to Plead Either of Her Claims foror Malpractice or 24 Breach of Fiduciary Duty..... 17 25 IV. CONCLUSION 19 26 27 28 LEWIS BRISBOIS 4830-3995-9942.1 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION & SMITH LLP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATIORNESA LAW TABLE OF AUTHORITIES Page Cases Alberston y. Rabo; (1956) 46 Cal.2d 375 13 Baral v, Schnitt (2016) 1 Cal.5th 376 11 Biakanja v. Irving (1958) 49> Cal, 2d 647 17 Boranian v. Clark (2004) 123 Cal. App. 4th 1012. 18 10 Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523 17 11 Braun v. Chronicle Publishing Co. 12 (1997) 52 Cal.App.4th 1036 il 13 Briggs v. ECHO (1999) 19 Cal.4th 1106 12 14 Buckley v. Gray 15 (1895) 110 Cal. 339... 17 16 Budd vy. Nixen (1971) 6 Cal.3d 195 16 17 Cabral y, Martins 18 (2009) 177 Cal.App.4th 471 12 19 Cassel v. Superior Court (2011) 51 Cal.4th 113 15 20 Chang v. Lederman 21 (2009) 172 Cal.App.4th 67 18,19 22 Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 11 23 Dove Audio, Inc. v. Rosenfeld, Meyer & Susman 24 (1996) 47 Cal.App.4th 77... i 25 Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 12 26 Fox Searchlight Pictures, Inc. v. Paladino 27 (2001) 89 Cal.App 4th 294. 11 28 BRISBOIS 4830-3995-9942.1 BISGAARD. DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATIORNENS AF LAW Harris v. King (1998) 60 Cal.App.4th 1185 14 Lafayette Morehouse, Inc. v, Chronicle Publishing Co. (1995) 37 Cal.App.4th 855 10 Lucas v. Hamm (1961) 56 Cal.2d 583 18 Ludwig v. Superior Court (1995) 37 Cal.App.4th 8 ll Malin v. Singer (2013) 217 Cal.App.4th 1283 McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378 15 10 Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287... 17 11 Navellier v. Sletten 12 (2002) 29 Cal.4th 82. ll 13 Neville v. Chudaco; (2008) 160 Cal.App.4th 1255 12 14 O'Neil v, Cunningham 15 (1981) 118 Cal.App.3d 466 14 16 Reilly v. Greenwald & Hoffman, LLP (2011) 196 Cal.App.4th 891... 15 M7 Rubin v. Green 18 (1993) 4 Cal.4th 1187 13 19 Rusheen v. Cohen (2006) 37 Cal.4th 1048 11,12 20 Seltzer v. Barnes 21 (2010) 182 Cal.App.4th 953 14 22 Silberg v. Anderson (1990) 50 Cal.3d 205. 13 23 Smith v. Hatch (1969) 271 Cal.App.2d 39 13 25 Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451 14,15 26 Thayer v. Kabateck Brown Kellner LLP 27 (2012) 207 Cal.App.4th 141. 13 28 LEWIS BRISBOIS 4830-3995-9942.1 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP. TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATIORENS ATLAW Statutes Civil Code section 47(b) ........... 13 Code of Civil Procedure § 425.16 passim Code of Civil Procedure § 430.10 (c) 16 Evid. Code § 953. 15 Evid. Code § 954.0... 15 Evid. Code § 955... 15 Other Authorities Internal Revenue Code Section 2207A. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS 4830-3995-9942.1 BRISBOIS DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP TO STRIKE PLAINTIFF*S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATORNENGATLAW I. INTRODUCTION Plaintiff RAPHELLE GABRIEL’s (‘Plaintiff’) above captioned lawsuit against Defendants CHARLES DAVID SPENCE, ROYSE LAW FIRM, PC, and ROGER ROYSE (collectively “Defendant Attorneys”), former attorneys of Plaintiff's step-father, Charles W. King, Jr. (‘Chuck”), seeks to impose liability on Defendant Attorneys, in part, for the legal positions they have taken in litigation over Chuck’s Estate, in which Plaintiff is an adverse party (‘Underlying Probate Litigation”). In the Underlying Probate Litigation, Defendant Attorneys filed a petition for instructions on behalf of the trustee to Chuck’s Trust (who is also Chuck’s son and a co-defendant in the present action, CHARLES W. KING, III, hereinafter referred to as 10 “Charlie”), seeking permission to prorate estate taxes owed by Plaintiff. Plaintiff suggests il Defendant Attorneys (and Charlie) have breached duties owed to her merely as a result of 12 asserting that right to petition in the Underlying Probate Litigation on behalf of Charlie. Thus, 13 that aspect of Plaintiff's Complaint constitutes SLAPP! and is correspondingly subject to the anti- 14 SLAPP statute set forth in Code of Civil Procedure section 425.16 (“anti-SLAPP statute”). 15 Under the anti-SLAPP statute, in order to proceed with any SLAPP claims, Plaintiff must 16 produce evidence demonstrating she has a probability of prevailing on the merits of her claims. 17 Plaintiff, however, cannot meet this burden because her SLAPP claims are (1) barred by the 18 litigation privilege, (2) barred by public policy, and (3) fail on the merits, as Plaintiff is unable to 19 substantiate either of her causes of action against Defendant Attomeys for malpractice and breach 20 of fiduciary duty, let alone the specific SLAPP allegations. That is, in addition to the litigation 21 privilege and public policy bar, Plaintiff cannot show that Defendant Attorneys owed her a duty of 22 care in the first instance, as they have never represented her in an individual capacity (nor have 23 they even really met her, for that matter). Accordingly, Defendant Attorneys request that this 24 Court grant this anti-SLAPP motion and declare Defendant Attorneys prevailing parties. 25 26 27 1 SLAPP is an acronym for “strategic lawsuit against public participation.” (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1287, fn 1.) 28 LEWIS BRISBOIS 4830-3995-9942.1 6 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP ATOMEYSATLAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 Il. STATEMENT OF FACTS A Defendant Attorneys Assist Chuck with His Estate Plan Chuck was a successful real estate developer and entrepreneur who married his second wife, Deborah A. King (“Debe”), in 1995. Plaintiff is Debe’s daughter from a prior relationship, and therefore, the step-sister to Charlie. Chuck hired Defendant Attorneys in 2014 to prepare his Estate plan, including a Trust on his behalf (referred to in the Complaint as the “CWK. Trust”)? (See Complaint at J 11; see also Declaration of David Spence (“Spence Decl.”) at { 3.) To that end, Defendant Attomey prepared, and Chuck executed, a sixth amendment to the CWK Trust, which at that time provided that Plaintiff would receive a one-fourth share of the remainder 10 interest therein. (Spence Decl. at {{ 7, 11.) Debe retained separate counsel, Berliner Cohen, to il prepare her own Trust (referred to in the Complaint as the DAK Trust). (Complaint at § 19; see 12 Spence Decl. at { 5.) 13 The DAK Trust provided that, if Chuck survived Debe, the bulk of the assets of the DAK 14 Trust would be distributed to (and would form) the King QTIP Share Trust (the “QTIP Trust”). 15 (Spence Decl. at { 6; see Complaint at { 19.) Chuck was named successor trustee of the DAK 16 Trust and its sole income beneficiary for his remaining lifetime, and Plaintiff later became the sole 7 beneficiary of the QTIP Trust upon Chuck’s death. (Spence Decl. at § 6.) 18 When Debe passed away unexpectedly in 2616, Chuck became the acting trustee of the 19 DAK Trust, and Defendant Attorneys represented him in that capacity, although the bulk of the 20 DAK Trust assets were transferred to form the QTIP Trust. (See Spence Decl. at { 8.) Several 21 months later, Chuck retained Defendant Attorneys to make a seventh amendment to the CWK 22 Trust, effectively eliminating Plaintiff as a beneficiaryto his Estate. (Spence Decl. at J 10- 11.) 23 The CWK Trust (part of Chuck’s Estate) and the QTIP Trust (in which Plaintiff was still a 24 remainder beneficiary) each owned a 50% undivided interest in Chuck’s primary residence in 25 Atherton (the “Atherton Property”). (Complaint. at § 20; see Spence Decl. at ¥ 12.) 26 27 2 Chuck had also established a separate trust for Plaintiff in 1997 known as the Raphelle A. Gabriel Trust (the “Raphelle Trust”). (See Complaint at J 21.) 28 LEWIS BRISBOIS 4830-3995-9942.1 7 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHLUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 OMEGA B. Defendant Attorneys Advise Charlie, but Not Plaintiff, After the Death of Chuck When Chuck passed away the following year, Charlie became successor trustee of the CWK Trust, and retained Defendant Attorneys to advise him concerning, among other issues, estate tax liability for Chuck’s estate, including implication for the anticipated sale of the Atherton Property. (See Spence Decl. at ff 13-15.) While Plaintiff baldly asserts her interests “were believed to be represented by Defendant Law Firm and/or Attorneys” (see Complaint at 16), Defendant Attorneys never signed a representation agreement with Plaintiff, never provided Plaintiff with legal services, and in fact, have never even met Plaintiff. (Spence Decl. at 4 18, 20, 21; Declaration of Roger Royse at {{ 3- 10 6.) Throughout the period that Defendant Attorneys represented Chuck, and later, Charlie, il Plaintiff was seemingly represented at all times by another law firm. (See Spence Decl. at ff] 9, 12 19) 13 Cc. Charlie and Plaintiff Take Different Legal Positions As to Whether Plaintiff Owes Estate Taxes 14 15 After the eventual buyer of the Atherton Property deposited a down payment, Plaintiff 16 sought half of this amount on the basis that the QTIP Trust owned a 50% share of the Atherton i7 Property (the CWK. Trust owned the other half). (Spence Decl. at ¢ 16; Complaint at § 21.) But 18 because Plaintiff's pro rata share of estate taxes exceeded the amount of half the down payment, 19 Charlie proposed satisfying the half share from the sale of the Atherton Property by crediting that 20 amount toward Plaintiff's share of estate taxes owed by Chuck’s Estate.> (See Spence Decl. at 21 16.) Unable to reach an agreement, Defendant Attorneys petitioned the Court on Charlie’s behalf 22 for instructions concerning the estate taxes owed by Plaintiff. (Spence Decl. at J 17.) 23 Charlie’s Petition for Instructions (the “Petition”), filed by Defendant Attorneys on his 24 behalf on May 16, 2018, “concern[{ed] the internal affairs of the CWK Trust.” (See Exh. A to 25 Request for Judicial Notice (“RFJN”) [Petition for Instructions], at p. 2, | 4; Exh. A to Spence 26 3. Plaintiff alleges that of the $6 Million Charlie paid to the Internal Revenue Service to cover 27 Chuck’s'estate taxes, Charlie seeks reimbursement of $1.5 Million from the QTIP Trust. (Complaint, 9§23, 24; see Spence Decl. at § 14.) 28 LEWIS BRISBOIS 4830-3995-9942.1 8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMEHLP TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATIORNES ATLA Decl., [Petition for Instructions].) It acknowledged that the CWK Trust and the QTIP Trust each owned 50% of the Atherton Property (id. at p. 2 § 10), and that “Fifty percent of the down payment” from the sale of the Atherton Property “is allocable to the QTIP Trust.” (Id. at p. 3, J 11.) The Petition further noted, however, that “the amount of estate tax attributable to the QTIP Trust assets ... is $1,463,458,” (id. at p. 3, § 14), and that Chuck’s estate is “entitled to reimbursement from the QTIP Trust for the QTIP Estate Taxes” of no less than $980,000*. Ud. at p. 4,415.) The Petition accordingly requested instructions from the Court on whether Charlie “should be entitled to offset the Deposit Amount [from the Atherton Property] against the amount to be recovered from the QTIP Trust.” (Id. at p. 5, { 23.) Specifically, the Petition made the 10 single request for “an order from this Court to retain the Deposit Amount as a reduction in or 11 initial payment toward the QTIP Estate Taxes.” (/d. at p. 5,925.) Notably, Plaintiff refers in her 12 Complaint to those assertions by Defendant Attorneys, made on Charlie’s behalf in the Underlying 13 Probate Action, as “Charlie’s Position.” (Complaint, ff 24, 32.) 14 D. Plaintiff Sues Defendants for Taking the Position that She Owes Estate Taxes 15 In contrast to Charlie’s Position, Plaintiff alleges neither she, nor the QTIP Trust, needs to 16 pay any estate taxes, but most crucially, that by asserting Charlie’s Position in the Underlying 17 Probate Action, both Charlie and Defendant Attorneys breached duties owed to her which may 18 have caused her damage.’ (Complaint, 4124, 26, 37, 44.) Plaintiff alleges in paragraph 24 of her 19 Complaint that “Charlie’s position . . . is a violation of his duties as trustee” and in paragraph 26 20 that Defendant Attorneys “advised, instructed or carried out Charlie’s violation of his duties as 21 trustee.” In paragraph 32, Plaintiff alleges that if “Charlie’s Position is incorrect ... a breach of 22 4 Pursuant to Internal Revenue Code Section 2207A, when a decedent surviving spouse’s Estate 23 (the CWK Trust) pays estate taxes arising from the value of a QTIP trust of the pre-deceased spouse included in the decedent surviving spouse’s taxable estate, the Estate of the decedent 24 surviving spouse is entitled to recover those taxes from the person who is receiving the QTIP assets (Plaintiff). 25 5 Plaintiff's position is that the Probate Code provisions proscribing equitable proration of estate 26 taxes do not apply if the testator expresses contrary intent in a testamentary instrument. (Complaint at {J 25-26.) Plaintiff contends that Chuck, as expressed in his will and in the CWK 27 Trust, intended for all of his estate taxes to be paid out of the CWK Trust. (Complaint at 27.) She claims that Chuck also informed her that she would not have to pay any estate taxes. 28 LEWIS 4830-3995-9942.1 BRISBOIS DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATTORNEY ATLAW fiduciary duty has occurred that may or may not have damaged Plaintiff.” Paragraph 37 includes the allegation that “Charlie is breaching his fiduciary duty . . . by taking positions adverse to his beneficiary,” and further, in paragraph 44, that Defendant Attorneys “had a duty not to represent the interest of Charlie . . . in which they would be advocating Charlie’s position. ...” Put it altogether, and clearly, Plaintiff's allegations against Defendant Attorneys involve not only the claim that Defendant Attomeys failed to properly advise Chuck,® but further, that advocating Charlie’s Position in the Underlying Probate Action also breached duties to her, for which she seeks redress in the present action.’ Ill. LAW AND ARGUMENT. 10 A. The Anti-SLAPP Statute Is Construed Broadly In Favor Of Curtailing Litigation Targeting Protected Activity ) M1 12 Code of Civil Procedure section 425.16 is a procedural remedy designed to quickly dispose 13 of lawsuits that infringe upon the valid exercise of constitutional rights. (Lafayette Morehouse, 14 Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865.) Section 425.16(b)(1) provides: 15 A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution 16 in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the 17 plaintiff will prevail on the claim. 18 Section 425.16 was amended in January 1997 to resolve conflicting interpretations of the 19 20 21 6 Plaintiff alleges in that regard that Chuck directed Defendant Attorneys to set up the CWK. Trust to cover all of his estate taxes, or alternatively, that Defendant Attorneys should have known 22 to obtain waivers of any right of reimbursement of the CWK Trust to reflect Chuck’s intent that the CWK Trust cover all taxes. (Complaint at { 30.) Plaintiff claims that Chuck directed that his 23 estate taxes would only be prorated if the CWK Trust was not in existence at his death, or had insufficient assets to cover his estate taxes. (Complaint at 27.) Plaintiff refers to the relevant 24 provisions in Chuck’s testament instruments as the Will Proration Clause, and the Trust Proration Clause (collectively, “Chuck’s Proration Clauses”). (Complaint at {f] 27-28.) 25 7 Although Plaintiff alleges that the Defendant Law Firm and Defendant Attorneys represented her,-(see Complaint at § 5), Defendant Attorneys deny this, under oath. (See Spence Decl. at ff 26 18-21; Royse Decl. at {{] 3-6.) Defendant Attorneys never signed a representation agreement with Plaintiff for legal services. (Spence Decl. at § 20; Royse Decl. at ] 5.) To be sure, none of the 27 Defendant Attorneys ever even met Plaintiff. (Spence Decl. at | 21; Royse Decl. at ]6.) At the same time, Plaintiff can offer no evidence to the contrary. 28 LEWIS 4830-3995-9942.1 BRISBOIS BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATOR ATUW statute issued by the appellate courts. The Legislature stated that henceforth the statute “shall be construed broadly.” (Code Civ. Proc. §425.16(a).) In determining whether to grant an anti-SLAPP motion, courts engage in a two-step process, First, Defendant Attorneys must establish that the challenged claim arises from activity protected by section 425.16. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; Braun y. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Defendant Attorneys meet this burden by showing that the claimed wrongful act falls within one of the categories set forth in section 425.16, subdivision (e). (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Once Defendant Attorneys meet their burden, the burden shifts to Plaintiff to establish through an evidentiary 10 showing that there is a probability that she will prevail on the claim. (Code Civ. Proc., § 425.16, 11 subd. (6)(1); Navellier, supra, 29 Cal.4th at p. 88; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman 12 (1996) 47 Cal.App.4th 777.) The second step is described as a “summary judgment-like 13 procedure.” (Baral, supra, 1 Cal.5th at p. 384.) 14 A defendant does not need to demonstrate that the plaintiff's suit is intended “to chill the 15 defendant’s exercise of First Amendment rights or that the suit had such an effect.” (Fox 16 Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.) Furthermore, if a cause of 17 action alleges protected and non-protected activities under the label of one cause of action, the 18 entire cause of action is subject to a motion to strike. (/d. at 308; Baral, supra. at p. 382.) 19 B. Plaintiff's Claims Against Defendant Attorneys In Relation to Advocacy in the Underlying Probate Action Arise From Protected Activity 20 21 It is well-settled that claims based on “litigation-related activity” are subject to section 22 425.16. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648 [A cause of 23 action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 24 425.16 motion to strike.”], emphasis added.) The statute specifically applies to “any act ... in 25 furtherance of the ... right [to] petition.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 19; 26 see Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [“‘any act’ includes communicative conduct 27 such as the filing, funding, and prosecution of a civil action”].) 28 Accordingly, “all communicative acts performed by attorneys as part of their LEWIS 4830-3995-9942.1 BRISBOIS i BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION ATIONNES A UAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 480.) That breadth includes any communicative conduct which relates to, or bears some connection to a “judicial proceeding.” (See Briggs v. ECHO (1999) 19 Cal.4th 1106, 1115 {counseling of a tenant regarding a Housing and Urban Development proceeding constituted protected activity]; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1267-1268 [litigation privilege applies to any communicative conduct which bears “some relation” to a proceeding]; Cabral, supra, at p. 485.) Along those same lines, statements protected under the litigation privilege (discussed 10 below) are “equally entitled to the benefits of section 425.16.” (Briggs, supra, 19 Cal.4th at p. i 1115, internal citations omitted.) Thus, litigation activity is per se protected under the anti-SLAPP 12 statute. (Rusheen, supra, at p. 1056; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418- 13 1420 [claim against attorney defendant for alleged misconduct on behalf of client during 14 underlying litigation subject to the anti-SLAPP statute].) 15 While Plaintiff. attempts to distance herself from SLAPP exposure, alleging that “[t]his 16 complaint does not arise out of any litigation . . .,” (Complaint, { 12), the subsequent allegations in 17 her Complaint tell an entirely different story. Plaintiff's claims against Defendant Attorneys 18 directly implicate conduct irextricably intertwined with Defendant Attorneys’ representation of 19 Charlie in relation to the Underlying Probate Action. To be sure, Plaintiff expressly concedes later 20 in the Complaint that her claims against Defendant Attorneys arise out of Defendant Attorneys’ 21 “advocating Charlies [sic] Position” in the Underlying Probate Action (Complaint, § 44), and that 22 Defendant Attorneys’ alleged activities relating to “advising Charlie” in the Underlying Probate 23 Action constitute a breach of duty on their part to her (Complaint, 26) “by taking positions 24 adverse to his beneficiary” (Plaintiff) (Complaint, 37); plainly litigation activity which is per se 25 protected by the anti-SLAPP statute. That is, in addition to the other grounds alleged in the 26 Complaint unrelated to the pending Underlying Probate Action, Plaintiff also plainly seeks to 27 impose liability on the Defendant Attorneys based on their exercise of constitutionally-protected 28 activity, namely, representing their client, Charlie, and assisting him with the Underlying Probate BRISBOIS 4830-3995-9942,1 1 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHLP TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATTORNEY ATUW Action, placing those of Plaintiff's claims squarely within the ambit of the anti-SLAPP statute. c. Plaintiff Cannot Establish A Probability Of Prevailing Since Plaintiff's claims fall within the first prong of the anti-SLAPP statute, Plaintiff must make a prima facie showing of facts that would, if proved at trial, support a judgment in her favor as to her SLAPP claims. (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 159.) Plaintiff cannot meet this burden as to any of her claims, let alone those that are SLAPP. 1 The Litigation Privilege Bars Plaintiff's Claims against Defendant Attorney: Arising Out of Their Advocacy of Charlie’s Position The litigation privilege is set forth in Civil Code section 47(b), which states that “[a] 10 privileged publication or broadcast is one made: . . . (b) In any . . . (2) Judicial proceeding... .” i The California Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212, held that the 12 litigation privilege is absolute, immunizing litigants and their attorneys from all causes of action 13 based on statements made during the course of judicial proceedings, with the exception of 14 malicious prosecution: 15 In furtherance of the public policy purposes it is designed to serve, the privilege described by § 47(2} has been given broad application. Although originally 16 enacted with reference to defamation (citations), the privilege is now held applicable to any communication, whether or not it amounts to a publication 17 (citations), and all torts except malicious prosecution. (Citations) (Ibid.) 19 Courts have correspondingly given broad application to the litigation privilege. “To be 20 privileged under subdivision 2 of section 47, the defamatory matter need not be relevant, pertinent 21 or material to any issue before the court, it only need have some connection or some relation to the 22 judicial proceeding.” (Smith v. Hatch (1969) 271 Cal.App.2d 39, 46.) Along the same lines, i Rubin v. Green (1993) 4 Cal.4th 1187, the California Supreme Court held: 24 For well over a century, communications with ‘some relation’ to judicial proceedings have been absolutely immune from tort liability by the privilege 25 codified as section 47 (b). At least since then-Justice Traynor’s opinion in Alberston y. Raboff (1956) 46 Cal.2d 375, California courts have given the 26 privilege an expansive reach .... In light of this extensive history, it is late in the 27 day to contend that communications with ‘some relation’ to an anticipated lawsuit are not within the privilege. 28 LEWIS BRISBOIS. 4830-3995-9942.1 13 BISGAARD DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION & SMIHUP. TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 ATOR ATLAW (Id. at 1193-1194.) Even communicative conduct outside of judicial proceedings is protected by the litigation privilege, so long as those statements have some connection or relation to the litigation process. (O'Neil +. Cunningham (1981) 118 Cal.App.3d 466, 475; Harris v. King (1998) 60 Cal.App.4th 1185, 1188; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 972.) Here, Defendant Attorneys’ allegedly wrongful conduct comprising SLAPP consists of advocating the legal position that Plaintiff and/or the QTIP Trust owe estate taxes, and advising Charlie that the QTIP Trust may be liable for a portion of estate taxes. (See, e.g., Complaint at 4] 24, 26, 37, 44.) Even if it supposedly breaches duties to Plaintiff, advocating Charlie’s Position in 10 the Underlying Probate Action is absolutely privileged. Accordingly, Plaintiff cannot prevail on Ml her claims that by asserting Charlie’s Position in the Underlying Probate Action, Defendant 12 Attorneys breached duties to her and may have caused her damage as a result. 13 2. Plaintiff's Claims against Defendant Attorneys are Barred by Public Policy 14 Additionally, Plaintiff's entire causes of action for malpractice and breach of fiduciary 15 duty are barred as a matter of public policy, which provides that since Defendant Attorneys cannot 16 defend against Plaintiff's claims without disclosing attorney-client privileged communications, 17 such claims cannot be pursued against them as a matter of law. (See Solin v. O’Melveny & Myers 18 (2001) 89 Cal.App.4th 451.} In Solin, the defendant (Solin) sought advice from the O’Melveny & 19 Myers law firm (“O’Melveny”) concerning Solin’s representation of his clients Reich and Jossem 20 pertaining to the clients’ criminal activities. (Jd. at 455.) Solin subsequently filed a lawsuit for 21 professional malpractice against O’Melveny, claiming the advice O’Melveny gave Solin was 22 erroneous. (/d. at 455-56.) The trial court dismissed the action, determining that O’Melveny 23 could not defend itself without revealing information Solin had given O’Melveny about Solin’s clients that was protected by the attorney-client privilege. (/d. at 456.) The appellate court in 25 Solin affirmed the dismissal of the case because the litigation of Solin’s claim against O’Melveny 26 would have required the disclosure of Solin’s attorney-client communications with the clients. 27 (id. at 462-67.) The appellate court focused on O’Melveny’s claim that it “cannot defend this 28 professional negligence case without disclosing privileged evidentiary details revealed by Solin in LEWIS BRISBOIS 4830-3995-9942.1 14 BISGAARD. DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANTI-SLAPP MOTION &SMIHUP ATIOMEYSATLAW TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 the course of seeking that advice from [defendant].” (Jd. at 462.) The court further reasoned: “Tf, however, O’Melveny is made to defend itself without use of the Client Secrets, and ajury returns a verdict for Solin, we cannot know whether the verdict would have been different had O’Melveny been permitted to present all relevant evidence regarding its consultation with Solin, including the Client Secrets.” (ibid.; cf. McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378 [dismissing shareholder’s derivative action because attorney-client privilege prevented corporate counsel from mounting defense]; Reilly v. Greenwald & Hoffman, LLP (2011) 196 Cal.App.4th 891 [same]; Cassel v. Superior Court (2011) 51 Cal.4th 113 (dismissing legal malpractice claim where . mediation confidentiality applied].) 10 As in Solin, McDermott, and Reilly, Defendant Attorneys’ ability to defend themselves is 11 constrained by the attorney-client privilege held by their current client, Charlie, and in relation to 12 the remaining aspects of both the malpractice and breach of fiduciary duty claim, as owed to 13 Chuck. Defendant Attorneys cannot waive this privilege on behalf of their clients. (See Evid. 14 Code §§ 953, 954.) Indeed, Defendant Attorneys are required to assert the privilege with respect 15 to any attempt to obtain privileged information, absent authorization to the contrary. (Evid. Code 16 § 955.) Moreover, Plaintiff, who was never Defendant Attomeys’ client, likewise lacks the 17 capability of waiving Chuck’s or Charlie’s attorney-client privilege. (See McDermott, supra, 83 18 Cal.App.4th at p. 383.) 19 Because Defendant Attorneys are foreclosed from discussing confidential communications 20 with their client concerning the Complaint’s allegations, including the circumstances surrounding 21 Chuck’s estate planning and its administration, they are therefore prohibited from presenting 22 critical evidence necessary to defend themselves against claims of professional negligence and 23 breach of fiduciary duty. (See, e.g., Spence Decl., at] 18.) To the extent the First Cause of 24 Action requires the Court to examine Defendant Attomeys’ legal position regarding “the rights 25 and duties of Chuck’s position,” and “whether Plaintiff is liable for any estate taxes” (see 26 Complaint at 51), public policy similarly precludes Plaintiff from maintaining her claim for 27 declaratory relief against Defendant Attorneys. 28 BRISBOIS 4830-3995-9942,i. 1