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Rebecca A. Rickley et al v. Marvin Goodfriend

January 16, 2013

REBECCA A. RICKLEY ET AL., PLAINTIFFS AND RESPONDENTS,
v.
MARVIN GOODFRIEND, INDIVIDUALLY AND AS TRUSTEE, ETC., ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from an order of the Superior Court of Los Angeles County, Richard A. Stone, Judge. (Los Angeles County Super. Ct. No. SC108579)

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

CERTIFIED FOR PUBLICATION

Affirmed.

In this dispute between next-door neighbors, plaintiffs prevailed in a prior action, establishing that their neighbor had unlawfully dumped contaminated debris on their property. Judgment was entered for plaintiffs. The judgment required the neighbor to remove the debris pursuant to a court-approved remediation plan. The funds for the remediation plan were placed in the trust account of the neighbor's attorneys. The neighbor failed to remove the contaminated debris, and the attorneys disbursed the funds in a manner contrary to plaintiffs' interest in remediating the debris on their property. Plaintiffs then filed this action, alleging that the neighbor and his wife had not complied with the prior judgment, resulting in a continuing nuisance.

After filing the original complaint in this case, plaintiffs sought to add causes of action for civil conspiracy against the neighbors' attorneys on the ground the attorneys had conspired with their clients, the neighbor-defendants, to interfere with the court-approved remediation plan and to disburse the funds from the trust account so as to avoid remediating the contaminated debris on plaintiffs' property. The trial court allowed the amendment.

The attorney-defendants and the neighbor-defendants appeal from the trial court's order. We conclude the trial court did not abuse its discretion in allowing the amendment because the amended complaint alleges that attorney-defendants violated two independent legal duties owed to plaintiffs: (1) a duty not to engage in affirmative misconduct that would interfere with the remediation of the contaminated debris, and (2) a duty to disburse the funds from their trust account in a fair manner. Further, the claims against the attorney-defendants are not barred by the litigation privilege because, as alleged, the attorneys' communications and affirmative misconduct interfered with the abatement of a nuisance, involved communications with nonparticipants in the action, and did not attempt to achieve the objects of any litigation. (See Civ. Code, § 47, subd. (b); undesignated section references are to that code.) Rather, the attorney-defendants actively sought to thwart the remediation effort, causing a continuing nuisance on plaintiffs' property. Finally, the assertion of the conspiracy claims does not violate the attorney-client privilege given that the theory of liability as to the attorney-defendants is based on non-confidential communications with third parties and non-confidential conduct involving third parties.

I BACKGROUND

This appeal involves one of three lawsuits plaintiffs have filed against defendants. The facts and allegations in this appeal are taken from the motion to amend the complaint, the proposed amended complaint, and the exhibits attached to the motion.

"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) Described as a "cornerstone jurisprudential polic[y], . . . complaints are to be liberally construed and disputes should be resolved on their merits." (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149.) "A fact may appear by inference as well as by direct allegation." (United B. & T. Co. v. Fidelity & Deposit Co. (1928) 204 Cal. 460, 465.) "Consistent with the applicable rules of pleading, we adopt a liberal construction of plaintiffs' [proposed] amended complaint, drawing all reasonable inferences in favor of their allegations." (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1170, fn. 16.) The proposed amended complaint, as construed in light of the exhibits filed in support of the motion to amend, should be "fairly read." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43; see id. at p. 48; Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 987; Paul v. Friedman (2002) 95 Cal.App.4th 853, 866.) Defendants do not contend that a different standard of construction should be applied in attorney-client conspiracy cases.

Plaintiffs, Rebecca Rickley and Natasha Roit, are residents and co-owners of property located on Malibu Vista Drive, Malibu, California. Their next-door neighbors, Marvin Goodfriend and Tina Fasbender Goodfriend, live on the same street.

The Goodfriends decided to remodel their home. During the remodeling, Marvin Goodfriend told the construction workers where to dump any debris. The debris was dumped on the Goodfriends' property and plaintiffs' property. As a result, the soil on both properties became contaminated with asbestos and lead. Plaintiffs repeatedly asked the Goodfriends to remove the debris from their property during the following year. The Goodfriends declined to do so. Plaintiffs resorted to litigation.

On May 17, 2004, plaintiffs filed an action against the Goodfriends in Los Angeles County Superior Court, alleging causes of action for nuisance, violation of covenants, conditions, and restrictions (CC&R's), trespass, and negligence per se based on (1) the Goodfriends' dumping contaminated debris on plaintiffs' property and (2) the Goodfriends' refusal to remediate it (Rickley v. Goodfriend (Super. Ct. L.A. County, 2006, No. SC081696)). The parties engaged in discovery. At his deposition, Marvin Goodfriend was asked, "So without a court order for you to remove the construction debris, you would not voluntarily do that?" He answered, "Correct." The case was tried to the court, Judge Cesar C. Sarmiento presiding. By judgment entered on February 23, 2006, Judge Sarmiento found defendant Marvin Goodfriend liable on all causes of action. Defendant Tina Fasbender Goodfriend was exonerated. "The Court ordered [Marvin Goodfriend] to abate the nuisance . . . and to obtain and pay for all necessary permits and approvals from any applicable government entities . . . ." The judgment recited that Mr. Goodfriend was to "abate the continuing nuisance in accordance with [the] remediation plan [of plaintiffs' expert witness] . . . . [¶] . . . [¶] . . . The remediation is to include the removal of the construction debris . . . placed on Plaintiffs' property. [¶] Goodfriend is ordered to comply with all laws including those Los Angeles County Codes that apply to height restrictions on fences, walls, trees, shrubs, flowers and plants." The trial court appointed plaintiffs' expert witness, Steven Viani, to supervise the remediation plan. (We sometimes refer to the May 17, 2004 action as the first action and the resulting judgment as the first judgment.)

The trial court tentatively decided to award plaintiffs the funds needed to remediate the contaminated debris on their property. Marvin Goodfriend objected, arguing that instead of giving plaintiffs the funds to remediate the debris on their property only, the trial court should adopt a single plan to remediate the debris on plaintiffs' property and the Goodfriends' property. The trial court agreed and calculated a "budget" to remediate both properties at a cost of $230,000. Marvin Goodfriend was responsible for paying that amount. The remediation funds he paid were placed in the trust account of his attorneys. On March 3, 2006, without plaintiffs' knowledge, the Goodfriends' attorneys began disbursing the money from their trust account. The attorneys disbursed more than $115,000 of the funds. Under the remediation plan, the funds were to be spent to remediate both properties, but a fair share of the $115,000, if any, did not go toward remediating plaintiffs' property. Had it been otherwise, plaintiffs would have noticed the partial remediation of their property and known about the disbursement. Disputes arose between plaintiffs and the Goodfriends' attorneys as to the manner of disbursement.

At his deposition, one of the Goodfriends' attorneys testified that his firm maintained a ledger showing the disbursements of the remediation funds from the trust account, but he had never compared the ledger with the court-approved budget to determine whether the disbursements complied with the remediation plan.

On June 28, 2010, plaintiffs filed the present action against the Goodfriends, individually and as trustees of the Goodfriend Family Trust (collectively Goodfriends), alleging causes of action for (1) intentional continuing maintenance of trespass, (2) intentional continuing maintenance of private nuisance, and (3) intentional violation of the California Coastal Act of 1976 (Coastal Act) (Pub. Resources Code, §§ 30000-30900). The complaint alleges that the Goodfriends had failed to remediate the contaminated debris on plaintiffs' property -- in violation of the first judgment -- and that the Goodfriends had "willfully and intentionally dumped more debris, trash, and/or fill on [their own property]," creating a new dump site and nuisance. (Italics added.) With respect to the Coastal Act, plaintiffs allege that defendants had violated a coastal development permit by failing to place contaminated debris in an appropriate disposal site.

The Goodfriends responded with a demurrer, which was overruled on January 25, 2011. They filed an answer on February 14, 2011.

On July 27, 2011, plaintiffs filed a motion to amend the complaint, seeking to add causes of action for civil conspiracy against the Goodfriends' two attorneys, James Procter and Daniel Stevens, and their law firm, Procter, Slaughter & Reagan. (See § 1714.10.) The proposed amended complaint alleges as follows.

The trial court ordered the attorneys in the case not to send e-mails or letters to the contractors performing the remediation work unless the trial court or opposing counsel had first approved the contents of the communication. Attorney Procter refused to comply with the order. As a result, the trial court sent two e-mails to Procter, directing him to comply with the prior order. One of the e-mails, dated February 3, 2010, also informed Procter that he had violated a court order not to disclose which party was paying for the remediation work. The other e-mail, dated February 18, 2012, admonished Procter not to delete or add material to an e-mail after it had been approved but before it was sent. Procter ignored the order and continued to send unapproved e-mails to the contractors. On April 30, 2010, the trial court found him in contempt for sending unapproved e-mails and fined him $500.

On November 5, 2010, the South Coast Air Quality Management District (AQMD) issued a "Notice To Comply." According to the motion to amend, the notice stated: "Prior to any more construction, renovation or soil remediation, do the following: [¶] A) provide [the] date and location [of] any and all construction debris [that] was disposed on . . . the . . . property; [¶] B) if from structure, provide [a] copy of facility survey; [¶] C) provide name of contractor who performed the construction activity; [and] [¶] D) provide complete asbestos inspection sampling of site."

At some point, the trial court ordered the Goodfriends not to dig in the contaminated soil when removing an oleander tree. On November 9, 2010, the Goodfriends' other attorney, Daniel Stevens, violated the trial court's order and the AQMD notice. As alleged, "Attorney Stevens personally supervised, directed, and himself performed work in the area referenced by the court order and [the] AQMD." While the oleander was being removed, plaintiffs' counsel, Natasha Roit, contacted the clerk of court and advised him of Stevens's conduct. The trial court, Judge Sarmiento presiding, held three telephone conference calls with Stevens, Roit, and plaintiff Rickley. During all three calls, the trial court ordered Stevens to cease and desist from disturbing the soil. During the third conference call, Judge Sarmiento questioned Stevens:

"The Court: . . . Are you digging in the soil by the oleander tree?

"Ms. Roit: That's exactly what they were doing, your Honor.

"The Court: I just got off the phone with Judge Tarle. His order to you was that he was permitting you to cut the oleander down to the soil, but there was no digging up of the soil.

"Mr. Stevens : That is not correct, your Honor.

"The Court: I'll tell you, I just got off the phone with Judge Tarle, and that's what he told me. [¶] I can tell you right now, Mr. Stevens, the order I made previously about cutting down that oleander is in full force and effect. I can tell you, I just got off the phone with Judge Tarle, and he told me his order was that you are not to break the soil. You can cut down to the soil, but you could not dig up or do any digging around the oleander. Now, that's the order. [¶] And I'm telling you right now, Mr. Stevens, if you are digging in that soil, you are to cease and desist immediately.

"Mr. Stevens: My understanding from Tarle -- I know you just spoke to him -- was that we were allowed to dig holes and put up a fence.

"The Court: I just told you what I told you, Mr. Stevens. I told you what Judge Tarle just told me. You're coming in tomorrow at nine o'clock. I'm . . . going to order you right now no digging by the oleander.

"Mr. Stevens: Will you be there tomorrow, your Honor?

"The Court: Yeah, I'm at work tomorrow. But I'll . . . talk to Judge Tarle tomorrow morning as well.

"Mr. Stevens: Because it seems like there should be some more cross-discussion between the two of you to get the order sorted out.

"The Court: That's exactly right. That's one of the things I just discussed with Judge Tarle. We'll discuss that tomorrow morning. But I don't think there's any issue that you should be stopping and just get clarification. Don't create any more problems than there needs to be.

"Mr. Stevens: Noted, your Honor.

"[Plaintiff] Ms. Rickley: Does that mean stop or not stop?

"Ms. Roit: So, Mr. Stevens, are you stopping, sending your people out of [there]?

"Mr. Stevens: I'm not sure yet.

"Ms. Roit: Okay Judge. You got it, 'I'm not sure yet.' So it looks to me like they're going to continue.

"The Court: I've done what I can.

"Ms. Roit: So I appreciate the clarification. We're on the record, and we've contacted the sheriffs, and they're going to come out. I don't know what else to do because they're continuing to work.

"The Court: All right. See you tomorrow. Mr. Stevens, I'm ordering you to stop the work [and] comply with my order regarding ...


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