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Terry D. Hamilton et al v. Henry W. Willms

January 28, 2011

TERRY D. HAMILTON ET AL., PLAINTIFFS AND APPELLANTS,
v.
HENRY W. WILLMS, INDIVIDUALLY AND AS COTRUSTEE, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 39-2008-00185771-CU-BC-STK)

The opinion of the court was delivered by: Butz ,j.

Hamilton v. Willms CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs Terry D. Hamilton and Sharon M. Hamilton (the Hamiltons) and defendants Henry W. Willms and Dolly G. Willms, individually and as co-trustees (the Willmses), are parties to a lawsuit in federal district court. During pretrial discovery, counsel for the Hamiltons and the Willmses negotiated an agreement regarding the taking of an independent witness's deposition. Before the witness signed the agreement, the Willmses' attorney wrote a letter declining to go through with the witness's deposition. After unsuccessfully seeking sanctions in the federal court action, the Hamiltons filed a complaint against the Willmses in San Joaquin County Superior Court for breach of written contract, breach of the implied covenant of good faith and fair dealing, and promissory fraud.

The Willmses filed a motion to strike the complaint pursuant to California's "anti-SLAPP" statute (Code Civ. Proc., § 425.16).*fn1 The trial court granted the motion and the Hamiltons appeal. We shall affirm the judgment.

FACTUAL BACKGROUND

In June 2003, the Hamiltons sued the Willmses in federal district court in the Eastern District of California, asserting violations of RICO,*fn2 fraud, breach of contract, and theft (the district court action). (Hamilton v. Willms (E.D. Cal., No. CV F 02 6583 AWI SMS).) During the course of the district court action, the Hamiltons and the Willmses entered into a series of negotiations, stipulations, and agreements regarding discovery. One issue the Willmses and the Hamiltons negotiated was how and when an out-of-state witness, Suzanne Conry, was to be deposed.

The negotiations were reduced to a written agreement setting forth conditions for conducting Conry's deposition (the Conry agreement). Among other things, the agreement provided that the Hamiltons would pay the cost of Conry's travel, meals and lodging to facilitate taking her deposition in California. The Conry agreement was ultimately signed by the attorneys but not by Conry. Subsequently, the Willmses' attorney, Don J. Pool, sent a letter to the attorney for the Hamiltons (the Pool letter) stating that Henry Willms was "revok[ing] the agreement executed between the parties . . . relating to the conduct of Ms. Conry's deposition."

The Hamiltons filed a motion to compel and a request for sanctions in the district court action. The federal magistrate granted the motion to compel and reopened discovery to allow the parties to take Conry's deposition. However, she refused to consider sanctions based on an alleged breach of the Conry agreement, stating: "[Y]ou're going to have to sue him in another court on that, because that's not a contract that's within the four corners of the complaint in this case."

PROCEDURAL HISTORY

The Hamiltons filed a three-count complaint in this action. All three causes of action are based upon an alleged breach of the Conry agreement. The complaint claims the Pool letter constituted a repudiation of the Conry agreement and that the Hamiltons were damaged by incurring expenses associated with Conry's travel from Colorado to California.

The Willmses filed a special motion to strike the complaint pursuant to section 425.16, arguing that because "the causes of action alleged in plaintiffs' Complaint arise from acts . . . in furtherance of [the Willmses'] right of petition, and the rights of representation and free speech," and "fall squarely within California's absolute litigation privilege," the complaint falls within the scope of section 425.16, and the Hamiltons could not demonstrate a prima facie case of prevailing.

The trial court granted the Willmses' motion and dismissed the lawsuit. It found the Hamiltons' claims arose from issues litigated in the district court action and that the Conry agreement "was created in furtherance in the federal litigation as that term is ...


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