Filed 9/12/14 Kaabinejadian v. Miller CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MASSOUD KAABINEJADIAN,

         Plaintiff and Appellant,                                        E057627

v.                                                                       (Super.Ct.No. CIVRS1204201)

KATHALEEN E. MILLER,                                                     OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,

Judge. Affirmed.

         Massoud Kaabinejadian, in pro. per., for Plaintiff and Appellant.

         Leser & Cantrell, David Cantrell and Matthew J. Kraus for Defendant and

Respondent.




                                                             1
                                              I

                                     INTRODUCTION

       Plaintiff and appellant Massoud Kaabinejadian appeals from a judgment entered

after the trial court granted a special motion to strike (Code Civ. Proc., § 425.16)1

brought by defendant Kathaleen Miller. (§ 904.1, subd. (a)(13).) Plaintiff filed this

lawsuit for abuse of process and invasion of privacy against Miller, a lawyer, based on

actions she took while representing her clients in a workers’ compensation proceeding.

Plaintiff has two principal claims: first, that Miller made a misrepresentation in a

submission to the WCAB2 regarding plaintiff’s purported attempt to assault a witness;

and, second, that Miller used a medical subpoena to obtain medical records in violation of

federal privacy law.3

       We hold that Miller’s conduct was protected litigation activity and plaintiff could

not establish the probability of success on his claims. We do not have jurisdiction to

consider Miller’s counter-argument about the award of attorneys’ fees and costs because

the record does not show that Miller filed a cross-appeal. (Golden Gate Land Holdings

LLC v. East Bay Regional Park District (2013) 215 Cal.App.4th 353, 363, citing Estate

of Powell (2000) 83 Cal.App.4th 1434, 1439.) We affirm the judgment.


       1   All undesignated statutory references are to the Code of Civil Procedure.

       2   Workers’ Compensation Appeals Board.

       3 Health Insurance Portability and Accountability Act (“HIPAA”), 42 United
States Code section 1320d et seq.



                                              2
                                              II

                   FACTUAL AND PROCEDURAL BACKGROUND

A. The Workers’ Compensation Claim

        Between January and July 2006, plaintiff was an at-will employee for Rabobank.

In September 2006, plaintiff filed a workers’ compensation claim—based on work-

related stress and discrimination—which was ultimately denied because plaintiff’s length

of employment was only 177 days and less than six months. (Lab. Code, § 3208.3, subd.

(d).)

        Miller served as opposing counsel, representing Rabobank and its workers’

compensation insurer. On behalf of her clients, Miller contended plaintiff was properly

terminated for aggression toward coworkers and creating a hostile work environment.

Miller served a medical record subpoena on plaintiff’s medical provider seeking

information about plaintiff’s alleged injuries. After plaintiff’s claim was denied, Miller

also prepared and filed a response to plaintiff’s WCAB petition for reconsideration.

B. The Complaint

        In May 2012, plaintiff filed a complaint for abuse of process and breach of privacy

against Miller. For the first cause of action, he alleged that Miller’s answer to his petition

for reconsideration falsely stated that plaintiff had tried to assault a witness, Cheryl

Walker, during the workers’ compensation hearing on May 18, 2011. Plaintiff asserted

that Miller had made the statements in the answer to retaliate against him. For the second

cause of action, plaintiff alleged that Miller had wrongfully subpoenaed his medical

records, again as retaliation.

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C. The Anti-SLAPP Motion

       In July 2012, Miller filed a special motion to strike pursuant to Code of Civil

Procedure section 425.16, asserting that Miller’s litigation conduct constituted

participation in a protected activity and plaintiff could not demonstrate a probability of

success because Miller’s conduct was subject to the litigation privilege afforded by Civil

Code section 47 (“section 47”).

       Miller submitted a declaration, describing the facts of her representation during the

workers’ compensation proceeding—including that she had subpoenaed medical records

from plaintiff’s treating physician and that she had witnessed plaintiff try to assault

Walker, the human resources director for Rabobank. In her answer to plaintiff’s petition,

Miller stated that plaintiff had demonstrated “anger and aggressive behavior” at the

workers’ compensation hearing: “Following the conclusion of testimony by Cheryl

Walker . . . the applicant sprang to his feet and attempted to assault the witness. But for

the actions of Mr. Miguel Martinez (Pinkerton Consulting and Investigations) and Mr.

Chris Solberg (California Highway Patrol), it appeared he would have physically

assaulted Mrs. Walker. She fled the courtroom in tears sheltered by Mr. Martinez, while

Officer Solberg confined the applicant to his chair.”

       In his opposing declaration, plaintiff described Walker’s purported discriminatory

treatment of him. He also set forth an account of the years spent litigating his workers’

compensation claim. He contended that Miller had obstructed his discovery efforts,

mishandled his medical records, and interfered with his Independent Medical

Examination (IME). Plaintiff made numerous efforts to have Miller held in contempt and

                                              4
sanctioned. Plaintiff vehemently disputed Miller’s account of his purported assault on

Walker. He denied he was restrained, confined, admonished or criticized for his behavior

at the hearing. The recorded minutes for the hearing contain no mention of the attempted

assault. Plaintiff asserted that Officer Solberg was prepared to testify in favor of plaintiff.

Plaintiff also described his objections to Miller obtaining the records of his treating

physician, Dr. Jeffrey Pearson, and disseminating them to non-medical personnel.

       After a hearing, the trial court granted defendant’s anti-SLAPP motion based on a

determination that Miller “had met her burden of showing that the activity alleged is

protected under section 425.16” and that the litigation privilege (section 47) bars

plaintiff’s claims.

D. Attorneys Fees Award and Judgment

       After the court granted the anti-SLAPP motion, Miller filed a motion for statutory

attorneys fees pursuant to section 425.16, subdivision (c)(1), requesting attorneys fees in

the amount of $7,851 and costs in the amount of $555. The court ordered plaintiff to pay

attorneys fees in the amount of of $4,505 and costs in the amount of $495. The court

entered judgment, including fees and costs, in Miller’s favor.

                                              III

                                     SECTION 425.16

       “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or

punish a party’s exercise of constitutional rights to free speech and to petition the

government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,

1055.) Section 425.16, the anti-SLAPP statute, allows a party to bring a special motion

                                              5
to strike a meritless SLAPP suit at an early stage of the litigation. (Rusheen, at pp. 1055-

1056; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 708-709 (Dwight R.).)

       The court follows a two-step process in determining whether a cause of action

constitutes a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; § 425.16, subd.

(b)(1) (Navellier).) The court first determines whether the defendant has made a

threshold showing that the challenged cause of action “aris[es] from” protected speech or

petition activity. (Navellier, at p. 88.) This showing is made if the “act” underlying the

challenged cause of action fits one of the four categories of protected activities described

in section 425.16, subdivision (e). (Navellier, at p. 88.)

       If the court finds the defendant has met this threshold burden, it then determines

whether the plaintiff has demonstrated a probability of prevailing on the merits of the

plaintiff’s claim. (Navellier, supra, 29 Cal.4th at pp. 88-89.) To meet this burden, the

plaintiff must demonstrate “‘“that the complaint is both legally sufficient and supported

by a sufficient prima facie showing of facts to sustain a favorable judgment if the

evidence submitted by the plaintiff is credited.”’ [Citations.] [¶] Only a cause of action

that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected

speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being

stricken under the statute.” (Id. at p. 89.)

       “We review an order granting or denying a special motion to strike de novo.

(South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 657.) That is,

we independently determine whether the challenged cause or causes of action arise from

protected activities, and if so whether the plaintiff has demonstrated a probability of

                                               6
prevailing on the claims. (Maranatha Corrections, LLC v. Department of Corrections &

Rehabilitation (2008) 158 Cal.App.4th 1075, 1084.)” (Dwight R., supra, 212

Cal.App.4th at p. 710; Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)

A. Protected Activity

       Plaintiff contends Miller did not meet her burden to demonstrate that the claims

against her are based on protected activities. We disagree. A cause of action “aris[es]

from” protected activities if the act underlying the claim is “itself “ an act in furtherance

of the right of free speech or petition. (City of Cotati v. Cashman (2002) 29 Cal.4th 69,

78; § 425.16, subd. (b)(1).) In determining whether a claim is based on protected

activity, we disregard the labeling of the claim and examine its “‘principal thrust or

gravamen,’” or “‘[t]he allegedly wrongful and injury-producing conduct . . . that provides

the foundation for the claim.’ [Citation.]” (Hylton v. Frank E. Rogozienski, Inc. (2009)

177 Cal.App.4th 1264, 1272, italics omitted.) We consider the pleadings together with

the supporting and opposing affidavits, “stating the facts upon which the liability . . . is

based.” (§ 425.16, subd. (b)(2); Navellier, supra, 29 Cal.4th at p. 89.)

       The protected activities described in subdivision (e)(2) of section 425.16 include

statements or writings made “in connection with an issue under consideration or review

by a . . . judicial body, or any other official proceeding authorized by law . . . .”

(§ 425.16, subd. (e)(2); see Kibler v. Northern Inyo County Local Hospital Dist. (2006)

39 Cal.4th 192, 198;) These protected activities include acts “‘preparatory to or in

anticipation of the bringing of an action or other official proceeding.’” (Briggs v. Eden

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs); § 425.16, subd.

                                               7
(e)(2); Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942.) “In the context of

determining whether a case comes within Section 425.16, the Supreme Court has held

that the constitutional right to petition includes the basic act of seeking administrative

action.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn.

(2006) 136 Cal.App.4th 464, 474.) In the context of determining whether a case comes

within section 425.16, the Supreme Court has held that the constitutional right to petition

includes the basic act of seeking administrative action.


       The activity underlying plaintiff’s complaint is Miller’s conduct as defense

attorney in a workers’ compensation case. As such, plaintiff’s complaint is based on acts

preparatory to or in anticipation of official proceedings. (§ 425.16, subd. (e)(2); Briggs,

supra, 19 Cal.4th at p. 1115; Comstock v. Aber, supra, 212 Cal.App.4th at pp. 941-942.)

Miller’s conduct is protected activity. Miller made a threshold showing that plaintiff’s

claims arise from protected activity. (Navellier, supra, 29 Cal.4th at p. 88.)

B. Exception for Illegal Activity

       Plaintiff additionally argues that Miller’s conduct was not a protected activity

because it was unlawful. (Flatley, supra, 39 Cal.4th at pp. 324-328; Lefebvre v. Lefebvre

(2011) 199 Cal.App.4th 696, 703-704.) Unlawful or criminal activities do not qualify as

protected speech or petition activities under the anti-SLAPP statute. (Flatley, at p. 317;

Lefebvre, at p. 704.) “[T]he defendant may invoke the anti-SLAPP statute unless the

activity is unlawful as a matter of law. [Citation.] An activity may be deemed unlawful

as a matter of law when the defendant does not dispute that the activity was unlawful, or



                                              8
uncontroverted evidence conclusively shows the activity was unlawful.” (Dwight R.,

supra, 212 Cal.App.4th at pp. 711-712, citing Flatley, at p. 317; Cross v. Cooper (2011)

197 Cal.App.4th 357, 383-384.) The trial court did not err in holding the illegality

exception was inapplicable to plaintiff’s cause of action for breach of privacy because

Miller does not concede—and the uncontroverted conclusive evidence does not

establish—her conduct was illegal.

       California courts have created a very narrow exception to the anti-SLAPP statute

that does not provide protection for criminal conduct that has been conceded or is

determinable as a matter of law based on uncontroverted evidence. For example, in Paul

for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, the court held that Paul failed to

meet the first prong of the test because section 425.16 does not exist to protect illegal

activity. The Paul court rejected the proposition that every allegation of illegality falls

outside the anti-SLAPP statute. The court relied heavily on Paul’s concession of the

illegality of his conduct, noting “defendants have effectively conceded the illegal nature

of their election campaign finance activities for which they claim constitutional

protection. Thus, there was no dispute on the point and we have concluded, as a matter

of law, that such activities are not a valid exercise of constitutional rights as contemplated

by section 425.16.” (Paul, at p. 1367.) The court of appeal in Kashian v. Harriman

(2002) 98 Cal.App.4th 892, 911, held the Paul decision does not apply to conduct that is

simply alleged to have been illegal: “If that were the test, the statute (and the [litigation]

privilege) would be meaningless.”

       In Flatley, the California Supreme Court said more elaborately: “We conclude,

                                               9
therefore, that where a defendant brings a motion to strike under section 425.16 based on

a claim that the plaintiff’s action arises from activity by the defendant in furtherance of

the defendant’s exercise of protected speech or petition rights, but either the defendant

concedes, or the evidence conclusively establishes, that the assertedly protected speech or

petition activity was illegal as a matter of law, the defendant is precluded from using the

anti-SLAPP statute to strike the plaintiff’s action. In reaching this conclusion, we

emphasize that the question of whether the defendant’s underlying conduct was illegal as

a matter of law is preliminary, and unrelated to the second prong question of whether the

plaintiff has demonstrated a probability of prevailing, and the showing required to

establish conduct illegal as a matter of law—either through defendant’s concession or by

uncontroverted and conclusive evidence—is not the same showing as the plaintiffs

second prong showing of probability of prevailing.” (Flatley, supra, 39 Cal.4th at p.

320.) Thus, the test for illegality is whether (1) the defendant has “conceded” illegality,

or (2) the “uncontroverted and conclusive evidence” establish illegality as a matter of

law. (Ibid.)

       These cases teach that—for the illegality exception to apply—Miller must have

conceded her conduct was illegal. Miller has never conceded her conduct relating to the

subpoena for Appellant’s medical records was illegal. Instead, Miller’s declaration in

support of the anti-SLAPP motion established that the medical subpoena she served on

plaintiff’s doctor was for the purpose of discovering information relating to plaintiff’s

alleged injuries—just as she had commonly subpoenaed medical records during her

decade of experience as a workers’ compensation defense lawyer.

                                             10
       Our review of the record does not find “uncontroverted and conclusive” evidence

establishing Miller’s actions were illegal as a matter of law. Plaintiff contends Miller

committed state and federal crimes by failing to provide plaintiff notice of the medical

subpoena and by obtaining and distributing the medical records to her clients. But no law

or facts establish Miller’s actions are illegal under Flatley.

       Instead, Miller’s actions were lawful and fully protected by the litigation privilege

under section 47. A plaintiff may not avoid “the application of the anti-SLAPP statute

merely by showing any statutory violation.” (Mendoza v. ADP Screening and Selection

Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) No specific statute supports the

conclusion that Miller’s actions are illegal under Flatley. Civil Code section 56.10,

subdivision (b)(3), states confidential medical records can be lawfully obtained by

subpoena. Provisions of HIPAA also provide for the release of medical records in

response to subpoenas. (45 C.F.R. § 164.512(e), see Snibbe v. Superior Court (2014) 224

Cal.App.4th 184, 197-198..) The illegality exception in Flatley was created to prevent

defendants who intentionally engage in criminal conduct from finding a protection in the

anti-SLAPP statute. No such deterrence is warranted here. No uncontroverted and

conclusive evidence establishes Miller knowingly or intentionally violated any part of

HIPAA that would give rise to an illegality exception under Flatley.

       Even if plaintiff established the subpoena notice was mailed to the wrong address,

it would be insufficient to support the criminal illegality exception under Flatley. Code

of Civil Procedure section 1985.3 does not state the failure to comply with its notice

provisions constitutes an illegality. Any claim against Miller based on the medical

                                              11
subpoena and alleged dissemination of the medical records is barred by section 47, the

litigation privilege. (See People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1277.)

D. Probability of Success

       The second prong of the anti-SLAPP test requires plaintiff to establish a

probability that he will prevail on his causes of action for breach of privacy and abuse of

process. This he cannot do because section 47 offers a complete defense and he cannot

establish the elements of his cause of action for breach of privacy.

       The litigation privilege is also relevant to demonstrating a probability of

prevailing. (Flatley, supra, 39 Cal.4th at p. 323.) The litigation privilege was created by

the Legislature to provide an absolute privilege protecting statements made in any

judicial proceeding, or any other proceeding authorized by law. The privilege is

“absolute” and bars all tort causes of action except for malicious prosecution. (Silberg v.

Anderson (1990) 50 Cal. 3d 205, 210-211.) The privilege “applies to any publication

required or permitted by law in the course of a judicial proceeding to achieve the objects

of the litigation, even though the publication is made outside the courtroom and no

function of the court or its officers is involved.” (Id. at pp. 211-212; Optional Capital,

Inc. v. Das Corp. (2014) 222 Cal.App.4th 1388, 1404.) Section 47 also “promotes the

effectiveness of judicial proceedings by encouraging attorneys to zealously protect their

clients’ interests.” (Silberg, at pp. 213-214; Optional Capital, at p. 1404.) Here, the

litigation privilege of section 47 covers both Miller’s answer to plaintiff’s petition and the

medical records subpoena.

       Plaintiff tries to argue Miller’s statements about the assault were not protected

                                             12
because they were not logically related to the underlying litigation. But the statements

were relevant to the issue of plaintiff’s credibility. The brief paragraph describing

plaintiff’s actions during the WCAB hearing bears on plaintiff’s character. Additionally,

as Miller explained, her observations of the events at the hearing were necessary to give

context to the WCAB’s determination of plaintiff’s petition. In short, Miller’s statements

constituted protected speech in the administrative action.

       The litigation privilege also defeats plaintiff’s cause of action for breach of

privacy. (Kilgore v. Younger (1982) 30 Cal.3d 770, 782.) The medical records subpoena

was issued as part of the defense to plaintiff’s workers’ compensation claims. Miller

declared she did not use the subpoenaed material except to oppose plaintiff’s claim

before the WCAB. These facts are distinguishable from Susan S. v. Israels (1997) 55

Cal.App.4th 1290, 1293 through 1295, in which a defense attorney’s review of a rape

victim’s medical records was not a protected “publication” under section 47 because the

attorney was unauthorized and the records were used for an improper purpose. Miller

was entitled to obtain plaintiff’s medical records in the workers’ compensation

proceeding and there is no evidence of improper use.

       Furthermore, no legislative history, case law, or statutory authority supports the

argument that section 47 is superseded by HIPAA. Plaintiff is suing a lawyer who

represented defendants in another legal proceeding by plaintiff. This is exactly the type

of case the California Legislature intended the litigation privilege to protect. HIPAA

does not displace section 47. Consequently, the litigation privilege should apply to the

present case.

                                             13
       Plaintiff also cannot show a reasonable probability of success because he did not

submit evidence of the elements of an invasion of privacy cause of action: (1) a

reasonable expectation of privacy; (2) intentional intrusion into plaintiff’s private affairs;

(3) an intrusion that would be highly offensive to a reasonable person; (4) injury; and

(5) conduct that was a substantial factor in causing injury. (Hill v. National Collegiate

Athletic Assn. (1994) 7 Cal.4th 1.) Evidence Code Section 996 dictates there is no

physician-patient privilege once the patient files litigation concerning his ailments.

Plaintiff had no reasonable expectation of privacy in the subpoenaed medical records and

the subpoena would not be highly offensive to a reasonable person in light of plaintiff’s

claim for stress-related injuries. Although plaintiff argues the subpoena was overly

broad, he does not explain how the subpoena encompassed overly-broad private medical

information. Therefore, plaintiff cannot establish a reasonable expectation of privacy in

the subpoenaed records. Similarly, the purported “intrusion” would not be highly

offensive given the circumstances of ongoing litigation.

       Finally, the privacy cause of action is also barred by the one-year statute of

limitations in section 340.6, for claims against lawyers “for a wrongful act or omissions,

other than for fraud, arising in the performance of professional services.” By its own

terms, section 340.6 applies to all claims against lawyers arising from their practice of

law except claims for actual fraud. (Southland Mechanical Constructors Corp. v. Nixen

(1981) 119 Cal.App. 3d 417, 430-431, disapproved on other grounds in Laird v. Blacker

(1992) 2 Cal.4th 606, 617; Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1363; Vafi

v. McCloskey (2011) 193 Cal.App.4th 874.) According to the Vafi court, section 340.6 is

                                              14
not limited to garden variety malpractice claims. “If the Legislature wanted to limit the

reach of section 340.6 to malpractice actions between clients and attorneys, it could

easily have done so.” (Vafi, at p. 882.) Section 340.6 has never been limited to

malpractice claims, and has consistently been applied to various tort and contract actions

including breach of contract and breach of fiduciary duty. (Vafi, at pp. 882-883.)

       This lawsuit was filed on May 30, 2012. Plaintiff admits he received notice of

Miller seeking his medical records on May 18, 2010—two years and twelve days before

this lawsuit was filed. The second cause of action alleges that Miller, while providing

professional services to her client, committed a breach of privacy. Plaintiff had until May

18, 2011, to bring a claim and he failed to do so. Therefore, the second cause of action

for breach of privacy is barred by the statute of limitations.

                                             IV

                                         DISPOSITION

       Miller’s conduct was protected litigation activity and plaintiff did not show the

probability of success on his claims. We affirm the judgment. We award Miller, the

prevailing party, her costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 CODRINGTON
                                                                                            J.
We concur:

RICHLI
                Acting P. J.

MILLER
                           J.



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