Judge: Joseph Lipner, Case: 24STCV04204, Date: 2024-12-12 Tentative Ruling
Case Number: 24STCV04204 Hearing Date: December 12, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
KATHERINE KELLER, Plaintiff, v. ROBERT H. BISNO, et al., Defendants. |
Case No:
24STCV04204 Hearing Date: December 12, 2024 Calendar Number: 8 |
Defendants Robert H. Bisno (“Robert Bisno”); Jeanette Ann
Bisno (“Jeanette Bisno”); Law Office of Robert H. Bisno (“Law Office”); Bisno
Management Company, LLC (“Bisno Management”); Bisno Development Enterprise, LLC
(“Bisno Development”); The Bisno Family Limited Partnership (“Bisno Family”);
and Bisno Real Estate Group, LLC (“Bisno Real Estate”) (collectively, “the
Bisno Parties”) bring a special motion under Code of Civil Procedure, section 425.16
to strike the Complaint filed by Plaintiff Katherine Keller (“Keller”).
Defendants additionally demur to the Complaint.
The Court DENIES the anti-SLAPP motion.
The Court OVERRULES the demurrer.
The Court determines that Keller may recover attorney’s fees
against Defendants Robert Bisno and Jeanette Bisno associated with her
opposition to the anti-SLAPP motion as it relates to the claim for malicious
prosecution only. Since this is a portion of the attorney’s fees claimed, the
Court will require additional information from the parties as to the proper
amount of attorney’s fees.
This is a malicious prosecution action. The following facts
are taken from the parties’ separate statements. For the purposes of the
anti-SLAPP motion, the Court resolves disputes of fact in Keller’s favor. For
the purposes of the demurrer, the Court accepts the allegations of the
Complaint as true.
In reviewing the parties’ separate statements, the Court
notes that the Bisno Parties improperly filed their reply separate statement
dated October 11, 2014 using Keller’s caption page – including the name of Keller’s
attorney and law firm, and the title of Keller’s separate statement. The Court
admonishes Defendant Robert Bisno, who represents himself as well as the other
Bisno Parties, that it is inappropriate to make a filing under a caption page
for an opposing party.
This case arises out of two underlying actions – one civil,
and one criminal.
On December 12, 2018, Defendant Jeanette Bisno battered Keller
at a parking garage in Beverly Hills, California (the “Parking Lot Incident”).
(Keller’s Undisputed Fact (“UF”) 1.) The Parking Lot Incident was recorded on
video, which shows Jeanette Bisno barricading Keller’s vehicle in with her own
vehicle and repeatedly shoving Keller. (UF 47, 50.)
No Defendants other than Jeanette Bisno were involved in the
Parking Lot Incident. (Defendants’ Response to Undisputed Fact (“RUF”) 1.)
On December 20, 2018, Defendant Robert Bisno, acting as
Jeanette Bisno’s attorney, filed a civil complaint in Los Angeles Superior
Court Case No. 18STCV09206 (the “Underlying Civil Case”) against 100 Doe
defendants only. (UF 2.) The complaint arose out of the Parking Lot Incident
and raised claims for (1) assault; (2) battery; (3) intentional infliction of
emotional distress (“IIED”); (4) false imprisonment; and (5) false arrest.
On March 13, 2019, Jeanette Bisno was arraigned on one count
of criminal battery (Pen. Code, § 242) in Los Angeles Superior Court Case No. 9AR31364
(the “Underlying Criminal Case”). (UF 3.) Robert Bisno, who is Jeanette Bisno’s
husband, appeared as her attorney at the arraignment. (UF 4.)
As
the criminal defense attorney in the Underlying Criminal Case, Robert Bisno
obtained discovery which included Keller’s name and contact information. (UF
5.) Keller contends that Robert Bisno and Jeanette Bisno then used this
information to assist in the prosecution of the Underlying Civil Case. (UF 6.)
On March 14, 2019, Robert Bisno, acting as Jeanette Bisno’s attorney, amended
the complaint in the Underlying Civil Case to name Keller as a defendant. (UF
7.)
Keller contends that the Bisno Parties then engaged in a pattern
of harassment of Keller which included calls to Keller’s job threatening to punish
and financially harm Keller for speaking and continuing to speak to law enforcement
with regard to the Underlying Criminal Case. (UF 8.) Keller contends that she
feared for her safety and her ability to continue to participate in the
criminal trial. (UF 9.)
On October 29, 2019, Jeanette Bisno pleaded no contest in
the Underlying Criminal Case and was found guilty of criminal battery upon Keller.
(UF 10.) Jeanette Bisno admitted under penalty of perjury that Keller never
touched Jeanette Bisno. (UF 11.)
Defendants continued to prosecute the Underlying Civil Case.
(UF 12.)
On December 2, 2020, the court in the Underlying Criminal
Case addressed Jeanette Bisno’s actions on the record as follows: “It’s
outrageous. …. Ms. Bisno is using the legal mechanism to further harass [Keller].
….. I think the law does not account for situations like this, where you have a
very sophisticated defendant who uses the legal system as a bully, as a
hammer.” (UF 13; see Keller Decl. ¶ 37, Ex. I.)
On December 4, 2020, Jeanette Bisno voluntarily dismissed
her claims against Keller in the Underlying Civil Case.
In the Underlying Civil Case, Keller proceeded to trial on a
cross-complaint against Jeanette Bisno. (UF 16.) The cross-complaint raised
claims for (1) assault; (2) battery; (3) IIED; (4) violation of the Bane Act,
Civil Code, section 52.1; and (5) malicious prosecution. (Bisno Parties’
Request for Judicial Notice at p. 23, Item 3.)
Prior to trial, Robert Bisno, acting as Jeanette Bisno’s
attorney, successfully argued in a series of motions in limine that Keller’s
Bane Act and malicious prosecution claims were premature. (UF 17.) The court in
the Underlying Civil Case ruled that the malicious prosecution claim was
premature and that the Bane Act did not apply to the Parking Lot Incident. (UF
18-19.) Jeanette Bisno waived the statute of limitations as to the Bane Act.
(UF 17, Keller Decl., Ex. L.) Neither the malicious prosecution claim, nor the
Bane Act claim were litigated at trial in the Underlying Civil Case. (UF 20.)
On August 21, 2023, judgment was entered for Keller in the Underlying
Civil Case for the sum of $193,255.00. (UF 21.)
Keller filed this action against the Bisno Parties on
February 20, 2024, raising claims for (1) malicious prosecution, and (2)
violation of the Bane Act. Keller subsequently named a number of additional
corporate defendants via Doe amendments.
Keller alleges in her first claim that Defendants
maliciously prosecuted the Underlying Civil Case against her. Keller alleges in
her second claim that Robert Bisno disclosed the personal identifying
information of Keller, a victim and witness in the Underlying Criminal Case, to
Jeanette Bisno. Keller alleges that the Bisno Parties used that information not
only to file the Underlying Civil Case, but to intimidate Keller and cause her
to believe that the Bisno Parties would commit violence against her if she
continued to participate in the criminal case.
On April 12, 2024, Keller served Robert, Jeanette, Bisno
Management, Bisno Development, and Bisno Real Estate via personal service.
On May 6, 2024, Bisno Management, Bisno Development, and
Bisno Real Estate (collectively, the “Anti-SLAPP Entities”) filed an anti-SLAPP
motion (the “First Anti-SLAPP”), noticing the hearing for May 28, 2024. Keller
filed an opposition on May 9, 2024 arguing, inter alia, that the motion did not
provide an adequate notice period.
On May 17, 2024, default was entered against Law Office and
Bisno Family.
On May 20, 2024, the Anti-SLAPP Entities withdrew the First
Anti-SLAPP, stating that they would re-file it with an adequate notice period.
On May 21, 2024, default was entered against Robert, Bisno
Management, Bisno Development, and Bisno Real Estate.
On May 23, 2024, Robert, Bisno Management, Bisno
Development, and Bisno Real Estate filed a Notice of Intent to File Anti-SLAPP
Motion.
On May 28, 2024, the Anti-SLAPP Entities filed the pending
anti-SLAPP motion (the “Second Anti-SLAPP”).
On May 31, 2024, default was entered against Jeanette.
On June 3, 2024, Robert and Jeanette filed a notice of
joinder to Second Anti-SLAPP.
On July 30, 2024, the Court denied the Second Anti-SLAPP on
the basis that all of the moving parties had been defaulted.
On September 17, 2024, the Court granted the Bisno Parties’
motion for relief from default.
On September 18, 2024, the Bisno Parties filed this
anti-SLAPP motion. On October 3, 2024, Plaintiff filed an opposition. On October
11, 2024, the Bisno Parties filed a reply.
On October 22, 2024, the Court ordered additional briefing
on the applicability of the anti-SLAPP motion to Plaintiff’s Bane Act claim.
The Bisno Parties filed a supplemental brief. Plaintiff filed a supplemental
opposition. The Bisno parties filed a supplemental reply.
The Court grants the parties’ requests for judicial notice
and takes notice of the submitted court records.
The Court has considered Keller’s objections to the
anti-SLAPP motion and joinder.
The Court overrules Keller’s objections that the motion is
unclear, misleading, and improperly noticed because it contains the word
“Proposed” on the caption page. The Bisno Parties have filed an errata document
fixing this error. Furthermore, the intent of the motion is clear. Keller was
able to file a well-argued opposition.
The Court overrules Keller’s objections that the motion was
not timely filed. The motion was filed more than 60 days after service of the
summons because Defendants were defaulted and subsequently relieved from
default. For this same reason, the Court finds that the current motion is not
an improper motion for reconsideration, because the Bisno Parties’ previous
anti-SLAPP motion was denied because the parties were in default, and was not a
decision on the merits. The Bisno Parties have now been relieved from default.
The Court may now consider the anti-SLAPP motion.
Code of Civil Procedure, section 425.16 requires courts to
strike causes of action arising from an act in furtherance of the defendant’s
right of free speech or petition unless the plaintiff establishes that there is
a probability that the plaintiff will prevail on the claim.
In assessing a defendant’s Code of Civil Procedure, section
425.16 special motion to strike, the court must engage in a two-step process. (Shekhter
v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court
must decide whether the defendant has met the threshold burden of showing that
the plaintiff’s cause of action arises from the defendant’s constitutional
rights of free speech or petition for redress of grievances. (Ibid.)
This burden may be met by showing the act which forms the basis for the
plaintiff’s cause of action was an act that falls within one of the four
categories of conduct set forth in Code of Civil Procedure section 425.16,
subdivision (e).
Once a defendant has met its initial burden and established
that the anti-SLAPP statute applies, the burden shifts to the plaintiff to
demonstrate a “probability” of success on the merits. (Code Civ. Proc., §
425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) “[T]he 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal
quotations omitted.)
“A plaintiff must plead and prove three elements to
establish the tort of malicious prosecution: a lawsuit (1) was commenced by or
at the direction of the defendant and was pursued to a legal termination
favorable to the plaintiff; (2) was brought without probable cause; and (3) was
initiated with malice.” (Nunez v. Pennisi
(2015) 241 Cal.App.4th 861, 872, quotation marks omitted.)
To determine the gravamen of an alleged SLAPP, courts look
to the factual basis for liability. (Wallace v. McCubbin (2011) 196
Cal.App.4th 1169, 1190, as modified on denial of reh'g (July 26, 2011)
disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal.5th
376.)
The
anti-SLAPP statute applies to 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 Constitution or the California Constitution in
connection with a public issue.” (Civ.
Proc. Code § 425.16, subd. (b)(1).) The statute defines such acts to include
the following:
(1)
any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law,
(2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law,
(3)
any written or oral statement or writing made in a place open to the public or
a public forum in connection with an issue of public interest, or
(4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest.
(Code Civ. Proc., §425.16, subd. (e).)
The anti-SLAPP statute protects statements and writings made
before a legislative, executive, or judicial proceeding. (Code Civ. Proc., §
425.16, subd. (e)(1).) “The constitutional right to petition ... includes the
basic act of filing litigation....” (Birkner v. Lam (2007) 156
Cal.App.4th 275, 281.) “It is beyond question that the initiation and
prosecution of [... a lawsuit is] protected under the anti-SLAPP statute.” (Paiva
v. Nichols (2008) 168 Cal.App.4th 1007, 1017-1018).
“A cause of action arising from defendant's litigation
activity may appropriately be the subject of a section 425.16 special motion to
strike. Any act includes communicative conduct such as the filing, funding, and
prosecution of a civil action.” (Thayer v. Kabateck Brown Kellner LLP
(2012) 207 Cal.App.4th 141, 154 [internal citations and quotation marks
omitted; cleaned up].) All communicative acts performed by attorneys as part of
their 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; Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) Further, “communications preparatory to or in
anticipation of the bringing of an action or other official proceeding … are
equally entitled to the benefits of section 425.16.” (Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) California courts
have held that pre-litigation communications such as letters threatening to sue
are protected activity. (Neville v. Chudacoff (2008) 160 Cal.App.4th
1255, 1266 [letter to employer's customers accusing ex-employee of
misappropriation of trade secrets and threatening to file litigation was
protected]; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262,
271 [statements made in 60–day notice of intent to sue required by Prop. 65].)
“Counseling others in anticipation of litigation or encouraging others to sue
is considered protected prelitigation activity.” (Pech v. Doniger (2022)
75 Cal.App.5th 443, 462.)
“[A] statement is ‘in connection with’ litigation under
section 425.16, subdivision (e)(2) if it relates to the substantive issues in
the litigation and is directed to persons having some interest in the
litigation.” (Neville v. Chudacoff, supra, 160 Cal.App.4th at p.
1266; see also Fremont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1167 [statements made by the defendant, who was a
court-appointed liquidator in an insolvency proceeding, to the Insurance
Commissioner concerning the assets of the insolvent company were protected].)
The audience to the statements need not be a party to the proceeding, or even a
potential party, but the audience must have some level of specific interest in
the litigation. (Contemporary Services Corp. v. Staff Pro Inc. (2007)
152 CA4th 1043, 1055 [email to customers accusing competitor of
litigation-related misconduct was protected].)
“By definition, a malicious prosecution suit alleges that
the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, Inc.
v. LaMarche (2003) 31 Cal.4th 728, 735.) “Accordingly, every Court of
Appeal that has addressed the question has concluded that malicious prosecution
causes of action fall within the purview of the anti-SLAPP statute.” (Ibid.)
Thus, Keller’s malicious prosecution claim arises out of protected activity.
California law does not permit liability for filing
lawsuits, except in the case of malicious prosecution. (See Civ. Code, § 47.) However,
the litigation privilege does not extend to actions for malicious prosecution.
(Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th
1232, 1242.)
“As generally understood, [t]he doctrine of res judicata
gives certain conclusive effect to a former judgment in subsequent litigation
involving the same controversy.’ The doctrine has a double aspect. In its
primary aspect, commonly known as claim preclusion, it operates as a bar to the
maintenance of a second suit between the same parties on the same cause of
action. In its secondary aspect, commonly known as collateral estoppel, [t]he
prior judgment ... operates in a second suit ... based on a different cause of
action ... as an estoppel or conclusive adjudication as to such issues in the
second action as were actually litigated and determined in the first action.” (Boeken
v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [internal citations
and quotation marks omitted.)
“Claim preclusion, the primary aspect of res judicata, acts
to bar claims that were, or should have been, advanced in a previous suit
involving the same parties.” (DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 824 [internal quotations and citations omitted].) “Claim
preclusion arises if a second suit involves: (1) the same cause of action (2)
between the same parties (3) after a final judgment on the merits in the first
suit.” (Ibid.) “To determine whether two proceedings involve identical
causes of action for purposes of claim preclusion, California courts have
consistently applied the ‘primary rights’ theory.” (Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 797 [internal quotations and citations
omitted].) “When two actions involving the same parties seek compensation for
the same harm, they generally involve the same primary right.” (Id. at
798.) A dismissal ordered by a court constitutes a final judgment. (Code Civ.
Proc., § 581d.)
“Issue preclusion differs from claim preclusion in two ways.
First, issue preclusion does not bar entire causes of action. Instead, it
prevents relitigation of previously decided issues. Second, unlike claim
preclusion, issue preclusion can be raised by one who was not a party or privy
in the first suit.” (DKN Holdings LLC v. Faerber, supra, 61
Cal.4th at p. 824.) “In summary, issue preclusion applies: (1) after final adjudication
(2) of an identical issue (3) actually litigated and necessarily decided in the
first suit and (4) asserted against one who was a party in the first suit or
one in privity with that party.” (Id. at p. 825.)
The Bisno Parties argue that Keller is collaterally estopped
from asserting her malicious prosecution claim because the court in the
Underlying Civil Case denied her the ability to assert it there. The Bisno
Parties’ argument is mistaken. The Underlying Civil Case did not result in a
judgment on the merits. Rather, the court there found that Keller’s assertion
of the malicious prosecution claim was premature because the litigation that
was the subject of the claim had not yet terminated. (UF 18.) Defendants cannot
both claim the benefit of the ruling that Keller’s previous assertion of the
claim was premature and, now that her claim is mature, insist that the previous
ruling is preclusive. Thus, collateral estoppel does not bar Keller from
asserting her malicious prosecution claim.
The Bisno Parties contend that Keller may not “split her
claims.” (Motion at p. 8:25.) Keller is not doing so. Her malicious prosecution
claim is not being improperly “split” from her claims in the Underlying Civil
Case because she could not have brought it there – as the judge there ruled.
The Bisno Parties contend that by failing to pursue her
appeal of the motion in limine rulings, Plaintiff has acceded to their
preclusive effect. This argument is mistaken for the reason that those rulings
did not have a preclusive effect, as discussed above.
The statute of limitations for malicious prosecution is one
year for claims against attorneys and two years for claims against litigants.
(Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 798.)
A claim for malicious prosecution cannot state a cause of
action until the underlying proceeding has terminated. (Babb v. Superior
Court (1971) 3 Cal.3d 841, 846.) “ ‘[A] cause of action for malicious
prosecution accrues upon entry of judgment in the underlying action....’
[Citation.] ” (Pasternack v. McCullough (2015) 235 Cal.App.4th 1347,
1356.)
Jeanette Bisno filed her request for dismissal of her claims
against Plaintiff on December 4, 2020. (Bisno Parties’ Request for Judicial
Notice, Item 7.) Judgment was entered for Keller in the Underlying Civil Case
on August 21, 2023, stating “Katherine Keller is the prevailing party. Jeanette
Ann Bisno shall take nothing from Katherine Keller.” (Bisno Parties’
Request for Judicial Notice, Item 15 at p. 4:6-11.) The August 21, 2023
judgment was the only judgment entered in the Underlying Civil Case. Thus, Plaintiff’s
malicious prosecution claim accrued on August 21, 2023.
Keller filed this action on February 20, 2024, less than one
year later. Keller’s malicious prosecution claim is therefore timely as against
all of the Bisno Parties.
As discussed above, “a plaintiff must plead and prove three
elements to establish the tort of malicious prosecution: a lawsuit (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination favorable to the plaintiff; (2) was brought without probable cause;
and (3) was initiated with malice.” (Nunez
v. Pennisi (2015) 241 Cal.App.4th 861, 872, quotation marks omitted.)
Keller has provided evidence that Jeanette Bisno brought the
Underlying Civil Case, and that Robert Bisno prosecuted the case as Jeanette
Bisno’s attorney. The Court discusses the applicability to the entity
defendants below in the Alter Ego section.
Jeanette Bisno dismissed all of her claims against Keller,
resulting in a favorable termination for Keller. “A voluntary dismissal is
presumed to be a favorable termination on the merits, unless otherwise proved
to a jury.” (Sycamore Ridge Apartments, LLC v. Naumann (2007) 157
Cal.App.4th 1385, 1400.)
Keller has provided evidence that the Underlying Civil
Action was brought without probable cause. Jeanette Bisno voluntarily dismissed
her claims and furthermore testified under oath that Keller never touched her
in the Parking Lot Incident. Jeanette Bisno also pled no contest to the
criminal battery charges against her and was found guilty. In fact, the Parking
Lot Incident was recorded on video, which was provided to Robert Bisno,
Jeanette Bisno’s attorney. Thus, Keller has created a triable issue of fact
that the Underlying Civil Action lacked probable cause.
Keller has similarly provided evidence of malice. Keller
states in her declaration that Robert Bisno sent people to her house and places
of work to look for her, and called her, stating that he would sue her for
everything she had and ruin her life. (Keller Decl. ¶¶ 10-14.) Furthermore,
Robert Bisno and Jeanette Bisno knew that Jeanette Bisno had battered Keller,
and that Keller had not touched Jeanette Bisno. A reasonable jury could infer
that Robert Bisno and Jeanette Bisno acted with malice in bringing the
Underlying Civil Action against Keller.
The Bisno Parties argue in their reply that Keller cannot
overcome Jeanette Bisno’s advice of counsel defense or Robert Bisno’s reliance
on client information. (Reply at p. 1:21-24.) This argument was not raised in
the moving papers. The Court deems it waived for the purposes of the anti-SLAPP
motion.
The Court therefore denies the anti-SLAPP motion as to the
malicious prosecution claim against Robert Bisno and Jeanette Bisno.
The remaining issue is that of whether the entity defendants
can be tagged with liability. Keller alleges that each of the entity defendants
are alter egos of Robert Bisno and Jeanette Bisno.
“In California, two conditions must be met before the alter
ego doctrine will be invoked. First, there must be such a unity of interest and
ownership between the corporation and its equitable owner that the separate
personalities of the corporation and the shareholder do not in reality exist.
Second, there must be an inequitable result if the acts in question are treated
as those of the corporation alone.” (Sonora Diamond Corp. v. Superior Court
(2000) 83 Cal.App.4th 523, 538.) When these conditions are met, courts
disregard the corporate structure and impute the actions of a corporation onto
its owner or parent. (McLaughlin v. L. Bloom Sons Co. (1962) 206
Cal.App.2d 848, 851-852.)
In determining whether to apply the doctrine, California
courts consider a number of factors which include but are not limited to (1)
inadequate capitalization, (2) commingling of funds, records, and other assets,
(3) disregard of corporate formalities (e.g., stock issuance, holding board
meetings, keeping of minutes, election of officers and directors, segregation
of corporate records), (4) the same equitable ownership in the two entities,
(5) the same directors and officers, (6) confusion about corporate identity,
(7) use of the same offices and employees, (8) use of subsidiary as a mere
shell or conduit for the affairs of the parent, and (9) lack of segregation of
corporate records. (Brooklyn Navy Yard Cogeneration Partners, L.P. v.
Superior Court (Parsons Corp.) (1997) 60 Cal.App.4th 248, 258.)
There are two defendant entities which the Bisno Parties
contend do not actually exist. In his declaration in support of the previous
anti-SLAPP motion, Robert Bisno declared that the Law Office of Robert H. Bisno
(“Law Office”) is not an entity and that The Bisno Family Limited Partnership
(“Bisno Family”) is not an entity. (Willoughby Decl., Ex. N ¶ 5.) Robert Bisno
now declares that he does business under the name of the Law Office of Robert
H. Bisno (indeed, he captions his filing as such), but that the Law Office is
not a separate entity. (Reply Bisno Decl. ¶ 6.) His law practice is conducted
from 14820 Mulholland Dr., Los Angeles, California 90077, a property owned by
James and Jan, LLC. (Reply Bisno Decl. ¶ 6.) Robert Bisno declares that it has
been over 15 years since there was any activity in Bisno Family. (Reply Bisno
Decl. ¶ 6.)
The remaining entity defendants are Bisno Management
Company, LLC (“Bisno Management”); Bisno Development Enterprise, LLC (“Bisno
Development”); and Bisno Real Estate Group, LLC (“Bisno Real Estate”).
Despite stating that he does business as the Law Office,
Robert Bisno has reported to the California State Bar that Bisno Management is
his place of business. (UF 25.) In fact, Bisno Management maintains a principal
address of 14820 Mulholland Dr., Los Angeles, California 90077 – the same
address as the Law Office. (UF 28.) Critically, this address is also the home
address for Robert Bisno and Jeanette Bisno. (UF 30-31.) Bisno Development,
Bisno Real Estate, and Bisno Family all similarly operate out of the home of
Robert Bisno and Jeanette Bisno. (UF 32, 34, 34.)
Robert Bisno is the registered agent for service of process
for Bisno Management, Bisno Development, Bisno Real Estate, and Bisno Family.
(UF 29, 33, 35 37.)
Perhaps the most telling evidence on the alter ego issue,
however, is Jeanette Bisno’s trial testimony in the Underlying Civil Case:
Q: How much do you have in the
bank account?
A: Zero.
Q: Zero?
A: Probably.
Q: How much do you have in your
savings?
A: Zero.
Q: You have no savings
and you have no checking account, how do you support yourself?
A: I borrow money from the LLC.
(Willoughby Decl., Ex. W at p.
30:2-10.)
Jeanette
Bisno’s testimony creates a triable issue that she – and her husband, with whom
she shares an address – use on the various entities that they maintain as
personal sources of funds thereby comingling funds and disregarding corporate
formalities.
The
Court notes that Robert Bisno states in his declarations that Jeanette Bisno
does not own or control the entity defendants. Robert Bisno also declares that
he gives Jeanette Bisno money from the LLCs when she asks him to, in his own
discretion.
Noting that this is a dispute of fact, the Court does not
reach a finding on whether Keller has proven alter ego as to any of the entity
defendants. The Court does not need to. The Court finds that Keller has shown
adequate factual merit to the allegation that the entities are alter egos of Robert
Bisno and Jeanette Bisno for the purposes of the anti-SLAPP motion.
The Court therefore denies the anti-SLAPP motion as to the
malicious prosecution claim against the Law Office, Bisno Management, Bisno
Development, Bisno Real Estate, and Bisno Family.
The elements of a claim for violations of the Tom Bane Civil
Rights Act are (1) the defendant interfered with or attempted to interfere with
the plaintiff’s constitutional or statutory rights by threatening or committing
violent acts; (2) the plaintiff reasonably believed that if he or she exercised
his or her constitutional rights the defendant would commit violence against
him or her or his or her property, or the defendant injured the plaintiff or
his or her property to prevent him or her from exercising his or her
constitutional rights or retaliated against the plaintiff for having exercised
his or her constitutional rights; (3) the plaintiff was harmed; and (4) the
defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
(Civ. Code, § 52.1; Austin B. v. Escondido Union School Dist., 149
Cal.App.4th 860, 882.) A Bane Act violation requires that the defendant have a
specific intent to violate the plaintiff’s rights. (Cornell v. City &
County of San Francisco (2017) 17 Cal.App.5th 766, 801-802.)
“Except as provided in paragraph (2), no attorney shall
disclose or permit to be disclosed to a defendant, members of the defendant's
family, or anyone else, the personal identifying information of a victim or
witness whose name is disclosed to the attorney pursuant to subdivision (a) of
Section 1054.1, other than the name of the victim or witness, unless
specifically permitted to do so by the court after a hearing and a showing of
good cause.” (Pen. Code, § 1054.2.)
Where there is not pending litigation, the question is
whether the statements were made in anticipation of litigation. (Neville v.
Chudacoff, supra, 160 Cal.App.4th at p. 1268.) The anticipated
litigation must be “contemplated in good faith and under serious consideration”
in order for the connected statements to qualify for protection. (Ibid.)
Keller’s Bane Act claim does not concern the Parking Lot
Incident, but rather, the Bisno Parties’ alleged use of Keller’s information
obtained in discovery through the criminal case to intimidate Keller and
threaten her with violence if she continued to participate in the criminal case
as a witness.
Keller states in her declaration that Robert Bisno sent
people to her house and places of work to look for her, and called her, stating
that he would sue her for everything she had and ruin her life. (Keller Decl.
¶¶ 10-14.) The Bane Act claim arguably concerns—in part—protected activity as
to the disclosure of Keller’s witness information, the prosecution of the
Underlying Civil Case, and the threats to sue her.
However, Defendants have not provided any reason why sending
people to Plaintiff’s house and places of work constitutes a communication made
in a judicial proceeding, nor does the Court believe that it is one.
“[A]n anti-SLAPP motion, like a conventional motion to
strike, may be used to attack parts of a count as pleaded.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 393 [emphasis added].) “Allegations of
protected activity supporting the stricken claim are eliminated from the
complaint, unless they also support a distinct claim on which the plaintiff has
shown a probability of prevailing.” (Ibid.) “At the first step, the
moving defendant bears the burden of identifying all allegations of protected
activity, and the claims for relief supported by them. When relief is sought
based on allegations of both protected and unprotected activity, the unprotected
activity is disregarded at this stage. If the court determines that relief is
sought based on allegations arising from activity protected by the statute, the
second step is reached.” (Id. at p. 396.)
The Court therefore finds that Robert Bisno’s statements to
Plaintiff that he would sue her are protected conduct. The Court similarly
finds that Robert Bisno’s disclosure of Plaintiff’s witness information for the
purpose of suing her, and the Robert and Jeanette Bisno’s subsequent
prosecution of the Underlying Civil Case, constitute protected conduct. Robert
Bisno’s action of sending people to Plaintiff’s home and workplace to look for
her is not protected conduct.
The
Court proceeds to the second prong analysis as to the protected conduct only,
and not the unprotected conduct.
As discussed above, California law does not permit liability
for filing lawsuits, except in the case of malicious prosecution. (See Civ.
Code, § 47.) This “litigation privilege[ ] has been referred to as ‘the
backbone to an effective and smoothly operating judicial system.’ [Citation.]”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 214-215.) “The litigation
privilege is absolute… . [Citation.]” (Kashian v. Harriman (2002) 98
Cal.App.4th 892.)
The litigation privilege applies to any communication: (1)
made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objectives of the
litigation; and (4) that have some reasonable relevancy to the subject matter
of the action. (Silberg v. Anderson (1990) 50 Cal. 3d 205, 212.) “It is
also well settled that the absolute privilege … extends to preliminary
conversations and interviews between a prospective witness and an attorney if
they are some way related to or connected with a pending or contemplated
action. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865.)
The litigation privilege applies to contemplated litigation;
however, it “applies only when the communication has some relation to a
proceeding that is contemplated in good faith and under serious
consideration. The bare possibility that the proceeding might be
instituted is not to be used as a cloak to provide immunity for defamation when
the possibility is not seriously considered.” (Edwards v. Centex Real Estate
Corp. (1997) 53 Cal.App.4th 15, 32 [internal citation and quotation marks
omitted; emphasis in original].)
The Court stated in its earlier and now-superseded tentative
ruling that the litigation privilege appears to apply to the prosecution of the
Underlying Civil Case or to Robert Bisno’s calls to her threatening litigation
because they were taken as a part of contemplated, and then actual, litigation.
Plaintiff
argues that her Bane Act claim is not subject to the litigation privilege
because it arises out of her malicious prosecution claim under the primary
rights theory. Based on its review of
this issue, the Court agrees with Plaintiff.
“
‘California has consistently applied the 'primary rights' theory, under which
the invasion of one primary right gives rise to a single cause of action.’
[Citation.] ” (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins.
Co. (1993) 5 Cal.4th 854, 860.) “ ‘[T]he “cause of action” is based upon
the harm suffered, as opposed to the particular theory asserted by the
litigant. ... Even where there are multiple legal theories upon which recovery
might be predicated, one injury gives rise to only one claim for relief.’ ” (Ibid.)
Plaintiff
argues that the conduct underlying her Bane Act claim is conduct that is
malicious prosecution, and that her Bane Act claim is thus the same ‘claim for
relief’ as her malicious prosecution claim – just asserted under a different
theory. Understood this way, Plaintiff’s Bane Act claim – as to the protected
conduct, at least – is not a claim that the Bisno Parties violated Plaintiff’s
civil rights regardless of whether they committed malicious prosecution, but
rather that the Bisno Parties violated Plaintiff’s civil rights by
committing malicious prosecution.
The Court first notes that California authority on the
applicability of the litigation privilege to Bane Act claims for malicious
prosecution is sparse. In Hagberg v. California Federal Bank (2004) 32
Cal.4th 350, the defendant moved for summary judgment against the plaintiff,
including on the plaintiff’s Bane Act claim, on the theory that the conduct at
issue was subject to the litigation privilege. (Hagberg v. California
Federal Bank (2004) 32 Cal.4th 350, 358.) There, the plaintiff had not
raised a claim for malicious prosecution. (Id. at p. 357.) The Court
explained that “statements [that] are privileged pursuant to Civil Code section
47, subdivision (b) (section 47(b)),1 … can be the basis for tort liability
only if the plaintiff can establish the elements of the tort of malicious prosecution.”
(Id. at p. 355.) Although the plaintiff contended that the Bane Act
formed an exception to the litigation privilege, the Court did not rule on that
argument because it found that there was no triable issue that the underlying
facts supported the plaintiff’s Bane Act claim. (Id. at pp. 375-376.) Hagberg
thus raises the issue but does not resolve it.
“No case since Hagberg discusses application of Section
47(b) to a claim for violation of Section 52.1.” (Fenters v. Yosemite
Chevron (E.D. Cal. 2010) 761 F.Supp.2d 957, 999.) In Fenters, the
plaintiff raised a section 52.1 claim – i.e., a Bane Act claim – based on
malicious prosecution. (Ibid.) There, the defendant similarly sought
summary judgment under the litigation privilege. (Id. at p. 995.) The
court denied summary judgment as to the plaintiff’s Bane Act claim, but did not
explain its reasoning in great detail other than noting the absence of
available authority on the issue. (Id. at p. 999.)
The Court finds Fenters to be helpful in resolving
Plaintiff’s argument, however. Here, “the plaintiff can establish the elements
of the tort of malicious prosecution.” (Hagberg, supra, 32
Cal.4th at p. 355.) That Plaintiff’s Bane Act claim is a separate theory of
liability should not logically subject it to the litigation privilege when the
underlying conduct alleged is conduct that, if merely labeled as a malicious
prosecution claim, would unambiguously evade the effects of the litigation
privilege.
The Court therefore finds that the litigation privilege does
not apply to Plaintiff’s Bane Act claim.
Claim preclusion does not apply here. By Jeanette Bisno’s
own admission, Plaintiff’s cross-complaint in the Underlying Civil Case only
raised a Bane Act claim as to Jeanette Bisno’s conduct in the Parking Lot
Incident. (Willoughby Decl., Ex. Z2 at p. 5:14-17.) Here, Plaintiff seeks
recovery for the Bisno Parties’ actions that followed the initiation of the
Underlying Criminal Case – i.e., the wrongful disclosure of Plaintiff’s
personal information and subsequent use of that information to allegedly intimidate
Plaintiff and file the Underlying Civil Case. This is a separate wrong.
Furthermore, Plaintiff’s present Bane Act claim is not a
claim that should have been advanced in the Underlying Civil Case, because the
alleged wrongful prosecution of the Underlying Civil Case is tied up in
Plaintiff’s allegations of intimidation. Thus, Plaintiff sensibly waited for
the end of the Underlying Civil Case to file this Bane Act claim.
Issue preclusion similarly does not apply here because
factual issues in Plaintiff’s present Bane Act claim were not litigated or
adjudicated in the Underlying Civil Case.
“Because some of the provisions commonly treated by the
courts as part of the Unruh Civil Rights Act derive from the common law and
some do not, we conclude that no single statute of limitations applies to all.
The one-year statute will apply to causes of action under provisions that
evolved from the common law; the three-year statute will apply to others.” (Gatto
v. County of Sonoma (2002) 98 Cal.App.4th 744, 759.)
Here, Plaintiff’s action does not arise out of a common law
claim such as negligence or personal injury, but rather out of alleged threats
to prevent her from testifying. Thus, it appears that a 3-year statute of
limitations applies – at least, when considering the Bane Act claim on its own.
As discussed above, the protected portions of Plaintiff’s
Bane Act claim arise out of the Bisno Parties’ alleged malicious prosecution of
the Underlying Civil case. The protected conduct at issue is the Bisno Parties’
prosecution of the Underlying Civil Case, and Robert Bisno’s attendant alleged
threats to Plaintiff.
“The nature of the cause of action and the primary right
involved, not the form or label of the cause of action or the relief demanded,
determine which statute of limitations applies.” (Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412.) Thus, the same
statute of limitations analysis that applies to Plaintiff’s malicious
prosecution claim applies to the protected conduct portions of Plaintiff’s Bane
Act claim. The claim accrued upon favorable termination of the Underlying Civil
Case. Plaintiff filed suit within one year. In any event, no party contends
that the applicable statute of limitations is less than one year, and
Plaintiff’s Bane Act claim is therefore timely.
The
Court therefore finds that Plaintiff has made an adequate showing of merit as
to the statute of limitations issue to survive the second step of the
anti-SLAPP analysis.
As discussed above, the elements of a claim for violations
of the Tom Bane Civil Rights Act are (1) the defendant interfered with or
attempted to interfere with the plaintiff’s constitutional or statutory rights
by threatening or committing violent acts; (2) the plaintiff reasonably
believed that if he or she exercised his or her constitutional rights the
defendant would commit violence against him or her or his or her property, or
the defendant injured the plaintiff or his or her property to prevent him or
her from exercising his or her constitutional rights or retaliated against the
plaintiff for having exercised his or her constitutional rights; (3) the
plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor
in causing the plaintiff’s harm. (Civ. Code, § 52.1; Austin B. v. Escondido
Union School Dist., supra, 149 Cal.App.4th at p. 882.)
The protected conduct at issue is Robert and Jeanette
Bisno’s prosecution of the Underlying Civil Case, and Robert Bisno’s attendant
alleged threats to Plaintiff. Although the protected conduct does not appear to
include threats of physical violence, the Court follows the persuasive
precedent of the federal court in Fenters v. Yosemite Chevron, supra,
761 F.Supp.2d 957, 999, which denied summary judgment as to a Bane Act claim
where malicious prosecution formed the underlying conduct at issue. Here, the
Plaintiff has provided evidence that the Robert and Jeanette Bisno threatened
to cause economic harm to Plaintiff, and maliciously prosecuted the Underlying
Civil Case against her, in retaliation for her cooperation in the Underlying
Criminal Case. Plaintiff has thus made a prima facie showing of merit
sufficient for her Bane Act
The
Court therefore denies the anti-SLAPP motion against the Bane Act claim as to
Robert Bisno and Jeanette Bisno.
As discussed under Plaintiff’s malicious prosecution claim,
the Court finds that Plaintiff has shown sufficient factual merit for her
claims to go forward against the entity defendants under the theory of alter
ego liability.
The Court therefore denies the anti-SLAPP motion as to the
Bane Act claim against the Law Office, Bisno Management, Bisno Development,
Bisno Real Estate, and Bisno Family.
Keller requests attorney’s fees.
“Except as provided in paragraph (2), in any action subject
to subdivision (b), a prevailing defendant on a special motion to strike shall
be entitled to recover that defendant's attorney's fees and
costs. If the court finds that a special motion to strike is frivolous or
is solely intended to cause unnecessary delay, the court shall award costs and
reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to
Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).)
The Court finds that the anti-SLAPP motion was frivolous as
to the malicious prosecution claim against Robert Bisno and Jeanette Bisno, but
not as to the remaining defendants or as to the Bane Act claim. The malicious prosecution issue was
clear. The Bane Act claim raised more
complicated legal issues.
There was no reasonable basis to argue that Keller could not
make a prima facie showing of her malicious prosecution claim against the two
individual defendants. The Parking Lot Incident was recorded on video available
to both Robert Bisno and Jeanette Bisno, and Jeanette Bisno admitted under oath
that Keller never touched her. Further, the judge in the Underlying Criminal
Matter’s comments as to the propriety of the Underlying Civil Case should have
put Robert Bisno and Jeanette Bisno on notice that there were, at minimum,
triable issues of fact that their actions constituted malicious prosecution.
The Court therefore determines that Keller may recover
attorney’s fees against Defendants Robert Bisno and Jeanette Bisno associated
with the portion of her opposition to the anti-SLAPP motion relating to the
malicious prosecution. The Court needs time records from Keller’s counsel in a
format that will allow the Court to allocate time between work on the malicious
prosecution issue and work on the Bane Act issues. The Court will discuss with
the parties at the hearing the procedure for submitting such records.
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
The Bisno Parties’ demurrer consists solely of the same res
judicata arguments raised in the anti-SLAPP motion. For the reasons discussed
under the anti-SLAPP motion, the Court does not find those arguments
persuasive.
The Court overrules the demurrer.