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Finton Construction, Inc. v. Bidna & Keys, APLC

California Court of Appeals, Fourth District, Third Division

June 29, 2015

FINTON CONSTRUCTION, INC., Plaintiff and Appellant,
BIDNA & KEYS, APLC et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County No. 30-2013-00650607, Linda S. Marks, Judge.

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The Layfield Law Firm, Philip J. Layfield and Bradley Wallace for Plaintiff and Appellant.

Bidna & Keys and Richard D. Keys for Defendants and Respondents.

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This is an appeal from an order granting defense motions pursuant to Code of Civil Procedure section 425.16, [1] the anti-SLAPP statute.[2] Plaintiff Finton Construction, Inc. (FCI or plaintiff) sued defendants Bidna & Keys, APLC (B&K), Howard N. Bidna, and Jon Longerbone (collectively defendants) for conversion, receipt of stolen property, and injunctive relief. These causes of action arose from defendants’ receipt of an allegedly stolen hard drive pertinent to a pending case in Los Angeles. Defendants are the attorneys of record in that case. They moved to dismiss under the anti-SLAPP statute, arguing the litigation privilege applied and the complaint failed to state a cause of action as a matter of law. The trial court granted the motion, finding defendants’ actions privileged and that plaintiff had failed to demonstrate a possibility of prevailing on the merits. This appeal followed.

We find FCI’s conduct with respect to this entire case demonstrative of a particularly nasty type of scorched earth tactics. A purportedly stolen hard drive, which was placed in the hands of defendants solely for litigation purposes, has resulted in an attempt to disqualify counsel and two efforts to depose counsel in the underlying case, a police report, complaints to the State Bar of California, and this entirely derivative and unmeritorious second lawsuit. FCI’s overreach does not suggest zealousness or righteousness, but a calculated effort to undermine the parties in the underlying case by turning their attorneys into fellow defendants.

While we strongly suspect that FCI is the prime mover behind the prosecution of this lawsuit, we remind FCI’s counsel—and indeed, all attorneys—that while they owe their clients a duty to zealously represent them, that zealousness does not trump the duty they owe the courts and the judicial process to prosecute only lawsuits with merit. The type of uncivil behavior and specious tactics demonstrated by filing this case represents conduct that brings disrepute to the entire legal profession and amounts to toying with the courts.

Less than 48 hours prior to oral argument, the parties notified us they had reached a settlement. The court, however, declines the parties’ request to dismiss the appeal. This is a particularly egregious SLAPP, filed against defendants for the sole “crime” of representing their clients in the underlying

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action. The lack of civility demonstrated in this case is a matter of public interest. Moreover, while we cannot be certain, it appears that FCI deliberately decided to keep this action pending until the last possible moment in order to avoid the opinion we write today. We therefore decide in defendants’ favor[3] and publish this case as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate.



The Underlying Lawsuit

In 2012, B&K filed a lawsuit on behalf of Michael Reeves against FCI and its partners, John Finton and Daniel Tontini, which was styled Reeves v. Finton Construction (Super. Ct. L.A. County, 2014, No. BC 485148 (Reeves). The case is still pending in Los Angeles County. The complaint alleged Reeves and Finton began building custom homes as a general contractor in the 1980’s and were eventually joined by Tontini. The company’s stock was owned 40 percent each by Reeves and Finton, and 20 percent by Tontini. From 2000 onward, Reeves ran the company’s Orange County branch office. The company was quite successful, with 2010 revenues exceeding $44 million. After some financial disputes, the complaint alleged, Finton and Tontini unlawfully conspired to reduce Reeves’s ownership and ultimately terminate his involvement. Reeves sought an accounting and millions of dollars in damages.

FCI and Finton filed a cross-complaint against Reeves and several FCI employees who left to join Reeves at his new company, MA3 Corporation. Reeves continued building homes in Orange County. Among other alleged acts of past wrongdoing, the cross-complaint alleged Reeves essentially stole FCI’s clients and wrongfully solicited its employees. It also alleged that before they left FCI, Reeves and other cross-defendants, including Nicole Lacuesta (also known by her maiden name, Hechanova), copied various “confidential” documents from FCI’s Orange County office and copied them to computers at MA3. These documents allegedly included “client lists, project plans, specifications, bid books, and contact information for valued vendors, suppliers and subcontractors.” Various computers and cell phones were allegedly stolen. As pertinent here, the cross-complaint alleged unfair competition, conversion, and misappropriation of trade secrets.

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In April 2012, not long after the cross-complaint was filed, FCI’s counsel, James Evans, sent Bidna a letter stating that on the day the cross-defendants had resigned from FCI, one of them, Jim White, had used a company credit card to purchase a hard drive, which was used to copy files from FCI’s computers. Evans claimed FCI owned the hard drive and demanded its return. Bidna responded the hard drive would be returned after his information technology consultant made a copy of the files on it. Evans offered an “inspection” by the consultant overseen by his own expert, but demanded the hard drive be returned without copying the files, stating that if the hard drive was copied, “we will take the position that you have taken materials belonging to Finton and/or spoilated evidence.” Bidna responded that it was unclear the hard drive had any files belonging to Finton on it, and refused to return it without copying the files.

In July 2012, FCI filed an application for a writ of possession, demanding Reeves turn over the hard drive White had purchased, a USB flash drive, and all the hard copies of client files in their possession. Reeves apparently opposed, although the opposition is not in the record. The application was eventually resolved in August by way of a stipulated order that directed the hard drive White had purchased, along with a USB flash drive, be turned over to FCI’s computer expert, who made copies of the hard drives and gave them to ...

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