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Donna Leek et al v. Jay Cooper et al

May 1, 2012

DONNA LEEK ET AL., PLAINTIFFS AND APPELLANTS,
v.
JAY COOPER ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. SCV26798)

The opinion of the court was delivered by: Hoch , J.

Leek v. Cooper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is the second time these parties have paid us a visit. Last time, we affirmed an order entering summary judgment in favor of Jay Cooper*fn1 in an age discrimination lawsuit brought by Donna Leek, John Borden, and Cindy Buschmann, but reversed the portion of the judgment awarding attorney fees to Cooper. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 416, 421 (Leek I).) During the pendency of the appeal, Cooper and his attorney, John A. Britton (collectively, Cooper), sought a writ of execution and obtained orders directing Leek, Borden, and Buschmann (collectively, Leek) to submit to debtor's examinations. The trial court then granted Leek's motion for a protective order preventing the examinations, ruling that the appeal automatically stayed enforcement of the judgment.

Not satisfied with that victory, Leek filed a second lawsuit, this time alleging causes of action for malicious prosecution, abuse of process, and intentional infliction of emotional distress (emotional distress), each arising out of Cooper's attempt to conduct the debtor's examinations. Cooper moved to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute.*fn2 The trial court granted Cooper's motion and awarded attorney fees and costs to Cooper. Leek appeals. Leek challenges the trial court's order striking the complaint and awarding attorney fees and costs to Cooper.

As we explain, the trial court properly granted Cooper's anti-SLAPP motion because (1) the acts forming the basis of Leek's complaint were taken in furtherance of the right of petition, and (2) Leek failed to establish a probability of prevailing on the merits. The trial court also properly awarded attorney fees and costs to Cooper as provided under the anti-SLAPP statute. Thus, we affirm the order striking the complaint and awarding attorney fees and costs. We also award attorney fees and costs on appeal to Cooper.

BACKGROUND

In 2007, Leek sued Auburn Honda and the company's owner, Jay Cooper, alleging age discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). In 2009, the trial court entered summary judgment in favor of Jay Cooper, ruling that an individual manager or supervisor cannot be held liable for age discrimination under FEHA, and that Leek's arguments and evidence that Auburn Honda and Jay Cooper were alter egos failed because alter ego liability was not pled in the complaint. Thereafter, the trial court awarded Cooper attorney fees and costs pursuant to Government Code section 12965. Leek appealed from both the summary judgment and the attorney fee award.*fn3

In July 2009, during the pendency of the appeal, Cooper sought a writ of execution and obtained three orders for debtor's examinations. The parties then exchanged a series of letters debating whether the filing of the appeal automatically stayed enforcement of the judgment under sections 916 and 917.1.*fn4 Ultimately, they agreed to have the trial court decide the issue. Cooper removed the debtor's examinations from the trial court's calendar and a hearing on the issue was scheduled.

In January 2010, Leek filed a motion for a protective order arguing that enforcement of the judgment was automatically stayed under section 916 because attorney fees are denominated by section 1021 et seq. as recoverable costs of suit. Cooper argued in opposition that the judgment was not automatically stayed because an award of attorney fees under FEHA is a sanction for abusive litigation tactics, rather than an award of routine costs of suit, and therefore, the judgment was for "[m]oney or the payment of money" within the meaning of section 917.1. Cooper also argued that examination of a judgment debtor "is not execution" and "has no impact on the judgment, and thus escapes the stay that might otherwise be imposed by [sections] 916 or 917.1(a)(1)."

In February 2010, the trial court granted Leek's motion and issued an order preventing Cooper from conducting the debtor's examinations, explaining: "The judgment in [Jay] Cooper's favor is one for costs (including statutorily allowable fees), falling within [section] 917.1(d). That section provides that no undertaking is required to stay a judgment solely for 'costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.' The attorneys' fees awarded in this action were awarded per statute, and are therefore awarded per [section] 1033.5(a)(10)(B), which is part of Chapter 6. [Cooper] cites no authority for his argument that such fees are considered sanctions and not costs awarded pursuant to [section] 1021, et seq. [¶] Nor does [Cooper] cite any authority for his proposition that conducting a judgment debtor examination is not 'enforcement' of the judgment, prohibited by [section] 917.1(a)&(d)."

In March 2010, Leek sued Cooper for malicious prosecution, abuse of process, and emotional distress based on Cooper's attempt to conduct the debtor's examinations. In May 2010, Cooper moved to strike the complaint pursuant to section 425.16. Relying on Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 (Jarrow) and Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen), Cooper argued that the complaint arose out of the exercise of the protected right of petition. Cooper also argued that Leek could not establish a probability of success on the merits of any of the causes of action asserted in the complaint. With respect to the malicious prosecution cause of action, Cooper argued that (1) an attempt to conduct a debtor's examination is a procedural action within a lawsuit that does not give rise to liability for malicious prosecution, (2) Leek could not establish a favorable termination of the lawsuit because the appeal was still pending, (3) Leek could not establish that Cooper lacked probable cause to believe the appeal did not automatically stay enforcement of the judgment, and (4) Leek could not establish that Cooper's attempt to conduct the debtor's examinations was malicious. With respect to abuse of process and emotional distress, Cooper argued that these causes of action were barred by the litigation privilege.

In July 2010, Leek filed an amended complaint dropping the abuse of process and emotional distress causes of action. Leek then filed an opposition to the anti-SLAPP motion arguing that (1) Cooper's attempt to conduct the debtor's examinations was not protected by the right of petition because the filing of the appeal stayed enforcement of the ...


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