Judge Randolph M. Hammock, Case Number: 24STCV32818, Date: 2025-03-25 Tentative Ruling

Plaintiff Brandon MacCarthy was a covered insured under a Geico policy when he caused a motor vehicle accident that severely injured his passenger. The passenger then pursued claims against MacCarthy. During that case, Plaintiff alleges that Defendants created a scheme to pin the blame on Plaintiff in order to cover their own mishandling of the case.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

Plaintiff MacCarthy alleges that in 2014, while insured under an automobile liability policy issued by GEICO, he was the driver of a Dodge Ram involved “in a single-vehicle DUI accident that caused catastrophic injuries to his passenger, Michael Isom. It was clear that MacCarthy was at fault and that Isom had suffered millions of dollars in damages.” (Comp. ¶ 2.) Plaintiff pled no contest to charges of felony DUI “and was sentenced to serve time in a maximum-security prison.” (Id. ¶ 30.)

By the time Plaintiff was released from prison, his insurer, Geico, “had already determined that the accident was covered, that MacCarthy was at fault, and that Isom’s damages vastly exceeded the Policy’s $15,000 limit for bodily injury.” (Id. ¶ 31.) Around the same time, Isom discharged his previous counsel and retained Kuzyk Law. (Id. ¶ 32.) “When GEICO found out that Kuzyk Law was handling the case, it immediately transferred the claim to its handpicked adjuster for Kuzyk claims, Chris Hedden. This was part of a concerted strategy by GEICO to punish Kuzyk Law for its perceived bad behavior in past cases by routing the firm’s claims to a single veteran adjuster who would obstruct the firm at every turn…GEICO’s goal in assigning Hedden to the claim was not to protect MacCarthy, but rather to make life as difficult as possible for the Kuzyk lawyers.” (Id. ¶ 33.)

On December 17, 2024, Kuzyk Law “offer[ed] to settle the case for the $15,000 policy limit if MacCarthy gave a sworn statement on videotape confirming that there were no additional avenues for recovery from other defendants or insurance policies.” (Id. ¶ 37, Exh. 6, p. 1.) Upon receipt of this letter, Hedden “knew that MacCarthy had the opportunity to obtain a full and complete release of all claims against him if he simply showed up and told the truth under oath on video.” (Id. ¶ 38.)

Hedden, however, failed to diligently inform Plaintiff of this offer. (Id. ¶¶ 39-41.) Once she finally spoke with Plaintiff, “Hedden did not request that MacCarthy attend the recorded statement in order to settle the case, nor did she advise him about the catastrophic consequences he faced if he refused.” (Id. ¶ 42.) “She told him it was ‘up to him to decide if he wishes to accept these conditions’” and “implied that he should decline,” telling him that it was “unusual that an attorney would require a videotaped declaration vs simply a signed one.” (Id.) She never informed Plaintiff that he could consult an attorney at Geico’s expense. (Id. ¶¶ 46, 50.)

Plaintiff decided not to appear for the recorded statement because he was “not comfortable” doing so and would prefer to sign a declaration. (Id. ¶¶ 47, 48, 51.) Hedden “validated his discomfort, and implied that he was making the right decision.” (Id. ¶ 49.) But contrary to Plaintiff’s interests, Hedden allegedly “wanted to force Kuzyk Law to file suit and take a deposition, rather than obtaining a pre-litigation recorded statement, since that would inconvenience the Kuzyk lawyers and force them to incur thousands of dollars in unnecessary costs on behalf of their client.” (Id. ¶ 48.)

Kuzyk law declined to accept a written declaration and insisted on a videotaped statement. (Id. ¶ 56.) Plaintiff, still influenced by Hedden, refused to sit for a videotaped statement. (Id. ¶¶ 64, 65.) With the parties at an impasse, Kuzyk Law sued MacCarthy on behalf of Isom in LA Superior Court on February 23, 2015. (Id. ¶ 68.)

On or about May 15, 2015, GEICO appointed Manning & Kass as defense counsel for MacCarthy. (Id. ¶ 69.) “For two years, the Manning & Kass attorneys were aware that MacCarthy faced seven- to eight-figures in liability, but the severity of his predicament was not clear to them. He had no assets, and they assumed he could simply declare bankruptcy.” (Id.) But by May 8, 2017, attorney Dennis Kass’s research revealed that MacCarthy’s “debt would never be dischargeable, since it arose from a felony DUI.” (Id. ¶ 70.)

Four days after finally discovering “the severity of the excess judgment that MacCarthy would be facing,” Manning & Kass had a telephone conference with GEICO. (Id. ¶ 71.) Within a week of that call, “the firm was already focused on” a potential bad faith action against GEICO for the rejection of Isom’s policy limits demand. (Id.) Geico and Manning & Kass came up with a solution: “pin responsibility on MacCarthy.” (Id.)

“On or about May 25, 2017, Bozoghlian phoned MacCarthy and told him that he was going to be sending MacCarthy an email and that he needed MacCarthy to confirm everything it said. Bozoghlian told MacCarthy that confirming everything in the email was important for MacCarthy’s lawsuit with Isom.” (Id. ¶ 72.) In the email that followed, Bozoghlian wrote: “Confirming our conversation today, let me know if everything below is true and accurate. Thanks.” (Id. ¶ 73, Exh. 13.) Underneath that request, it said: “I, Brandon MacCarthy, make the following statement: .. . I refused to provide a videotaped statement under oath. . . . Chris Hedden from Geico explained to me the possible repercussions of not providing a statement under oath. It was my choice not to do so.” (Id.)

Plaintiff alleges that, in truth, he “had not stated any of that to Bozoghlian during their phone call” and “Bozoghlian had not asked [him] any questions about what had occurred with Chris Hedden.” (Id. ¶ 74.) Bozoghlian was asking him to “falsely attest in writing that he had said things to Bozoghlian over the phone which he had not, in fact, stated.” (Id.)

Initially, Plaintiff “did not take the bait” to confirm the email because he “was not comfortable with the email when he received it.” (Id. ¶ 75.) On or about May 31, 2017, Bozoghlian called MacCarthy again and “told him it was urgent that he confirm the contents of the email immediately.” (Id. ¶ 76.) Despite his initial hesitance, Plaintiff “did what his lawyer told him.” (Id. ¶ 77.) Plaintiff responded the same day stating: “Yes this is all correct i approve this email.” (Id.) By doing so, he “had no idea that his own lawyer had just tricked him into making false statements to sabotage a potential bad-faith lawsuit against GEICO.” (Id.)

“MacCarthy did not discover Bozoghlian’s fraud until on or about July 2022, when the fraud was unexpectedly called to his attention while he was seeking counsel against GEICO. Prior to that date, accrual of the claim was tolled, because MacCarthy was completely unaware that Manning & Kass had defrauded him. MacCarthy had fully believed Bozoghlian’s fraudulent representation that affirming the statements was a legitimate part of his defense against Isom’s lawsuit.” (Id. ¶ 78.)

“To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Plaintiff asserts his third cause of action for fraud against Geico, the firm Manning & Kass, and its attorneys Rodrigo Bozoghlian and Dennis Kass. Plaintiff alleges that “Defendants, acting in concert with one another, engaged in fraud by: [a] Falsely representing to MacCarthy that it was necessary for his defense to confirm statements he had never made; [b] Intentionally concealing that the purpose of obtaining these false confirmations was to protect GEICO from liability, not to defend MacCarthy from Isom’s claims; [and] [c] Knowingly soliciting false statements from their own client under false pretenses.” (Comp. ¶ 107.) Defendants allegedly “engaged in the formation and operation of a civil conspiracy to defraud MacCarthy, they undertook wrongful conduct in furtherance of the conspiracy, and MacCarthy suffered damage arising from that wrongful conduct.” (Id. ¶ 109.)

“The essential elements of fraud, generally, are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (City of Indus. v. City of Fillmore (2011) 198 Cal. App. 4th 191, 211.) Generally, “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc.¿(2009) 171 Cal.App.4th 1356, 1384, internal quotations omitted.) “The normal policy of liberally construing pleadings against a demurrer will not be invoked to sustain a fraud cause of action that fails to set forth such specific allegations. (Id.)” The heightened pleading standard for fraud requires “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.)

To begin with the underlying tort for fraud, Defendant argues that there is no evidence of any fraud. Attempting to dismantle Plaintiff’s theory, Defendant contends that Plaintiff did not participate in the recorded statement on “his own volition” because he was concerned it would have on his criminal case. [FN 2] Defendant also argues that Defendants were aware of the risk of grave financial harm to the Plaintiff “since the inception of the case.” Defendant asserts that MacCarthy was “constantly” apprised of the potential of a judgment in excess of policy limits, and that the policy was not “open.”

Plaintiff attests in his declaration that Defendant Hedden “convinced” him that “giving a statement was a bad idea.” (MacCarthy Decl. ¶ 3.) He relied on Hedden’s “many direct and indirect assurances that the correct decision was to refuse to give a recorded statement, including her representations that the request for a statement was unreasonable and against standard practice, that a declaration should be enough, and that if I were sued I would have affirmative defenses like assumption of the risk.” (Id. ¶ 4.) Plaintiff further states he “was never given the opportunity to speak to a lawyer about whether to give the recorded statement, and [he] could not afford one of [his] own.” (Id. ¶ 5.)

Plaintiff attests: “I also never told anyone at Manning & Kass that Chris Hedden warned me about the repercussions of not giving a recorded statement and that I chose to do so with knowledge of those repercussions. Hedden never warned me about the repercussions of what I was doing. If I had known the repercussions, including the risk of financial ruin, of course I would have given the recorded statement and avoided owing millions of dollars.” (Id. ¶ 8.)

“Mr. Bozoghlian asked me to affirm in writing things I had never told him, based on an interview with me that never occurred. In particular, he asked me to affirm that Chris Hedden had warned me about the repercussions of refusing to give a recorded statement. In reality, she never gave me that warning, and I never told anyone that she did, including Mr. Bozoghlian. Mr. Bozoghlian was unequivocally asking me to say something that he knew to be false.” (Id. ¶ 10.)

To summarize, it is Plaintiff’s theory that his adjuster, Hedden, was willing to place Plaintiff in grave financial difficulty if it meant inconveniencing Kyzyk Law. And later, once Geico and its counsel realized that could expose them to a bad faith action, they used Plaintiff to cover their tracks—with Plaintiff, again, being collateral damage.

Here, considering the evidence and circumstances, Plaintiff has established all essential elements of fraud. Plaintiff has established that Defendant Bozoghlian misrepresented to Plaintiff that confirming the email was necessary or helpful for his case. Bozoghlian knew this was false, as the true purpose of that email was to pin the blame on Plaintiff. Defendant intended Plaintiff to rely on that representation, and Plaintiff did, in fact, justifiably rely. This allowed Defendants to get off scot-free and Plaintiff now faces a multi-million-dollar judgment.

The only specific allegation against Defendant Kass, however, is it that he analyzed whether Plaintiff could discharge a stipulated judgment in bankruptcy—he concluded he could not. (Compl. ¶ 70.) Any further inclusion of Kass as a Defendant, then, is apparently based on the theory that as a member of Plaintiff’s legal team, he was a part of a conspiracy to the commit the fraud.

The court therefore turns to Defendant Kass’s liability as a member of a conspiracy to commit the fraud. “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212.) Civil conspiracy is not an independent tort, but “a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Id. at pp. 211-212.)

Plaintiff has demonstrated that Defendant Kass was a member of Plaintiff’s legal team. And in communications with Mr. Bozoghlian, Plaintiff “understood him to be speaking as a representative of my entire legal team at Manning & Kass, including Mr. Kass.” (MacCarthy Decl. ¶ 9.) For Plaintiff, “receiving information from Mr. Bozoghlian was the same as receiving it from Mr. Kass.” (Id.)

Importantly, knowledge and intent of a conspiracy “may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal. App. 4th 189, 206.) Here, Plaintiff has presented circumstantial evidence of Kass’s involvement in a conspiracy. Indeed, it would be a stretch to assume that Bozoghlian went rogue when he solicited the email confirmation from Plaintiff. The more likely scenario, assuming Plaintiff’s allegations to be true, [FN 3] is that the whole legal team, including Mr. Kass, made the decision to pin the blame on Plaintiff. Thus, Plaintiff has met his minimal burden to establish Defendant Kass’s involvement in a conspiracy.

Next, Defendant argues the statute of limitations for the fraud claim has expired. The statute of limitations for fraud is three years. (CCP § 338(d).) The cause of action “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Id.) “When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, in this case, the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonable conclusion.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

Defendant contends Plaintiff had notice of the fraud—or at the very least, inquiry notice—when Bozoghlian sent the email on May 31, 2017. Therefore, under a three year-statute of limitations and accounting for tolling under emergency rule 9, Defendant asserts that the statute of limitations expired in November of 2020.

Plaintiff counters that the statute of limitations did not begin running until July 2022, when he “sought counsel against GEICO and unexpectedly was informed of the legal significance of the affirmations that Mr. Bozoghlian had been soliciting from me in May 2017. That was the first time [he] learned that the affirmations Mr. Bozoghlian solicited were calculated to sabotage [his] claims against GEICO, not help [his] case against Isom.” (MacCarthy Decl. ¶ 13.)

Plaintiff states in his declaration that he was “initially uncomfortable” with what Mr. Bozoghlian had sent him. (Id. ¶ 11.) But Bozoglian convinced him in a subsequent phone call “that it was actually something important to do for my case.” (Id. ¶ 11.) Once Plaintiff sent the email to Bozoghlian, “from [Plaintiff’s] perspective nothing bad had happened as an immediate result.” (Id. ¶ 12.) Plaintiff states: “I was not suspicious of him, because he was my lawyer. The interaction was just one the many exchanges I had with my lawyers during the civil case, many of which were confusing or complicated. I had no inkling whatsoever that the email was part of a scheme by my lawyers to defraud me by sabotaging my bad-faith claim against GEICO.” (Id.)

Here, Plaintiff’s interpretation of the statute of limitations is certainly plausible. While Plaintiff knew that Bozoghlian’s representations were false at the time he made them, Plaintiff did not necessarily know that those false representations were part of a conspiracy against him. It was but one step in a process that is often “confusing or complicated” to someone who is not a lawyer or insurance professional.

Therefore, this did not, as a matter of law, place Plaintiff on inquiry notice of the fraud. Instead, Plaintiff has advanced a cognizable theory that he did not discover the fraud until 2022 when he consulted independent counsel who connected the dots for him as to the “conspiracy” aspect of his allegations. Therefore, at this stage and for purposes of this special motion to strike, this cause of action is not barred by the statute of limitations.

Plaintiff contends he should recover his attorney’s fees because the anti-SLAPP motion was frivolous. 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.” (CCP § 425.16(c).) For purposes of this section, “frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (CCP § 128.5(b)(2).)

Judge of the Superior Court

FN 1 - As discussed in this Ruling, Plaintiff has established that this cause of action has at least “minimal merit” against the moving Defendant under prong two. Therefore, the court need not address the “arises from” analysis under the first prong.

FN 2 - To the extent it might be relevant, Plaintiff disputes that he was ever advised by criminal counsel not to attend the recorded statement. Plaintiff states in declaration: “I did not receive any advice from a criminal lawyer about whether to attend the recorded statement. At the time I had to make that decision, in December of 2014 and January of 2015, I did not have a criminal lawyer to consult. I was represented in my criminal case by a public defender, whose advice ended once I was sentenced. Neither my public defender nor any other criminal lawyer told me not to give a recorded statement to Kuzyk Law.” (MacCarthy Decl. ¶ 6.)

FN 3 - It is well established that in the second prong analysis of a special motion to strike, absent rare circumstances (which are not present in this case), the Court must assume the evidence proffered by the opposing party is true. See, e.g., Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728,740-741 [“ … supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”]; see also, Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [The trial court does not weigh the proffered evidence.]

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.