(Monterey County Super. Ct. No. M88477). Hon. Timothy S. Buckley.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Virginia Robles and members of her family filed an action against their former attorneys and appellant Purush Chalilpoyil, alleging negligence and conspiracy to commit fraud. Appellant moved to strike the complaint under the anti-SLAPP law, Code of Civil Procedure section 425.16 (hereafter, "section 425.16"), but the superior court denied the motion. Appellant seeks review, contending that the conduct on which the complaint is based consists of communications protected by section 425.16. We disagree and affirm the order.
Respondents are family members of John Robles, who burned to death when his wheelchair ignited while he was occupying it. In December 2004 respondents initiated an action for wrongful death against Golden State Medical Supply, Pride Mobility Products Corp, and others (the Robles v. GSMS case). Thomas Wills and C. Denise Benoit (collectively, "the Wills attorneys" or "the Wills firm"), represented respondents in that lawsuit. Thomas Wills retained appellant to provide expert consulting services and testimony.
According to the complaint in the present case, trial in Robles v. GSMS was scheduled for October 31, 2006. On November 1, Thomas Wills advised the court that a continuance would be necessary because of a conflict with appellant. Wills represented that appellant had testified falsely in his deposition, claiming to have been present at a product- testing session material to his testimony. The trial court continued the trial to January 8, 2007, to allow Wills to procure another expert witness.
Before the new trial date, Wills allegedly requested each plaintiff to sign a waiver of any interest in a device Wills wanted to market to address the safety defects in the decedent's wheelchair. Wills indicated that the device would be designed and manufactured together with appellant, based on research and information appellant had gathered in preparing his expert testimony. According to the complaint, instead of retaining a new expert, Wills decided to settle the Robles v. GSMS case, and he obtained the consent of some of the plaintiffs. Other plaintiffs, including respondents in this case, were reluctant; but Wills "coerced, forced, and/or wrongly pressured the plaintiffs herein to tell the court that they `agreed' to settle that entire case" for $1 million. Respondents thereafter refused to accept any of the settlement proceeds.
On January 25, 2007, the Wills firm withdrew from the Robles v. GSMS case and filed a notice of lien for attorney fees. When the settling defendants moved to enforce the settlement, plaintiffs were unable to find counsel to represent them in opposing the motion, and it was granted.
Respondents filed the instant action on January 8, 2008, against the Wills attorneys and appellant. The claims against appellant were for negligence (first cause of action) and conspiracy to commit fraud (fourth cause of action). Respondents specifically alleged that appellant had failed to exercise reasonable care by (1) falsely testifying in deposition that he had been present at the testing session and (2) "failing to continue to act as an independent expert and/or disrupting the prosecution of the [Robles v. GSMS] case by entering into a business relationship, agreement, and/or proposal with [the Wills attorneys] to design, develop and/or market a device or devices to improve the safety of the wheelchair in which John Robles, Sr. was killed, while said defendants were still obligated to act as the plaintiffs' expert in the [Robles v. GSMS] case." In the fourth cause of action respondents alleged that appellant and the Wills attorneys had conspired to "defraud, conceal facts, and engage in acts and omissions intended to deny the plaintiffs a full and fair prosecution of the [Robles v. GSMS] case." In addition, each of them "willfully, fraudulently, and deliberately suppressed, concealed, and failed to provide plaintiffs the true facts concerning the defendants' actual or proposed business relationship" involving the improvements to the wheelchair. The defendants' failure to disclose that information was intended to induce respondents to settle the underlying case for a sum that was not agreeable to them and thus to forgo a trial. Had respondents been aware of the concealed facts, they would not have agreed to settle the underlying case and would have found new counsel to prosecute the action.
Appellant moved to strike the first and fourth causes of action as a SLAPP (Strategic Lawsuit against Public Participation) under section 425.16. Appellant contended that the first cause of action was based on false testimony that was made in the context of a legal proceeding and was therefore protected communication. The fourth cause of action, he argued, was based on a request from Thomas Wills to appellant soliciting appellant's agreement to allow his work product to be provided to the underlying defendants in the event of a settlement. In appellant's view, those discussions about a prospective business relationship fell "comfortably" within the express terms of Code of Civil Procedure section 425.16(e)(2) as well as within the litigation privilege described in Civil Code section 47, subdivision (b).
After considering the parties' briefs and hearing oral argument on the matter, the superior court articulately explained its view of the law as applied to the pleading at issue. The court ruled that respondents' complaint did not fall within the protection of either the litigation privilege or the anti-SLAPP statute. Accordingly, the court denied appellant's motion to strike the complaint. This appeal followed.
1. The Anti-SLAPP Statute
Both parties appear to understand the nature of SLAPP actions and the regulating statute, section 425.16. A SLAPP is "a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1126; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 354-355.) Section 425.16 was enacted in 1992 to address the "disturbing increase" in the frequency of these meritless harassing lawsuits. (§ 425.16, subd. (a); see Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.) It was the Legislature's finding "that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." (§ 425.16, subd. (a).) The statute was thus designed to deter meritless actions that "deplete 'the defendant's energy' and drain 'his or her resources,' [citation],... ' "... by ending them early and without great cost to the SLAPP target." ' [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; Soukup v. Law Offices ...