Filed 12/18/15 Busch v. Gorry, Meyer & Rudd CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


ANITA BUSCH,                                                         B260081

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC316318)
         v.

GORRY, MEYER & RUDD LLP,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Elihu M. Berle, Judge. Affirmed.


         Law Offices of Ian Herzog, Ian Herzog and Evan D. Marshall for Plaintiff and
Appellant.


         Waxler Carner Brodsky, Andrew J. Waxler and Danielle R. Sokol for Defendant
and Respondent.


                                ___________________________________
       Anita Busch alleged various tort and statutory claims against private investigator
Anthony Pellicano and one of his clients, Michael Ovitz. Busch also named a law firm,
defendant and respondent Gorry, Meyer & Rudd, LLP (Gorry), which had represented
Ovitz in several lawsuits (none involving Busch) and used Pellicano in connection with
three of the lawsuits. The trial court granted Gorry’s motion for summary judgment
based on evidence showing that the firm did not retain Pellicano in connection with any
matter, litigation or otherwise, involving Busch. In short, the court found it undisputed
that, whatever wrongs Ovitz and Pellicano may have done as to Busch, they did it on own
accord, without Gorry’s involvement. We affirm.
                                           FACTS
Gorry Hires Pellicano to Assist in Three Cases
       In 2002, Ovitz’s company, Artists Management Group, LLC (Artists), retained
Gorry to represent Artists and certain related individuals in four litigation matters listed
respectively: Casey v. Artists Management Group, LLC (Super. Ct., L.A. County No.
BC270781), hereafter the “Casey litigation;” Bernier v. Artists Management Group, LLC
(Super. Ct., L.A. County No. SC071759), hereafter the “Bernier litigation;” Alcon v.
Artist Management Group, LLC (Super. Ct., L.A. County No. BC276499), hereafter the
“Alcon litigation;” and Lyster v. Artists Management Group, LLC (Super. Ct., L.A.
County No. SC071310), hereafter the “Lyster litigation.” During this same general time
frame, Artist also retained Gorry to assist in another Artists litigation matter that was
being handled by other lawyers: Artists Management Group, LLC v. Advantage
Marketing Group, Inc. (U.S. Dist. Ct., No. CV 01 4890 MMM (MCx), hereafter the
“Advantage Marketing” litigation.
       Gorry agreed with Artists (through Ovitz) that the law firm would retain Pellicano
to investigate parties involved in the Bernier, Casey and Advantage Marketing litigations
noted above. Pellicano charged Gorry a $25,000 fee for each of the three cases. Gorry
deposited Artists’ checks into the firm’s client-trust account, and, on May 14, 2002, the
firm issued three checks from its client-trust account –– in the amount of $25,000 each ––
payable to Pellicano.

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Gorry Hires Pellicano in a Case with Steven Seagal
       In the small world that is Los Angeles and the entertainment industry, there was
a further connection between Gorry and Pellicano. In 2000, Patricia Nichols had filed a
“slander” lawsuit against actor and producer Steven Seagal and others (Super. Ct., L.A.
County No. BC229401), hereafter the “Nichols litigation.” Gorry represented Seagal in
the Nichols litigation through judgment after trial.
       In July 2002, Gorry filed a lawsuit against Seagal claiming that he owed the firm
more than $250,000 in unpaid legal fees for work done in the course of the underlying
Nichols litigation. (Super. Ct., L.A. County No. SC072829.) On June 17, 2002, shortly
before Gorry filed its fee collection action, Gorry partner Christopher Rudd wrote a letter
to Seagal’s business lawyer stating that Gorry would be filing suit shortly, and that it had
“retained the services of Mr. Anthony J. Pellicano in connection with the . . . amounts
owed. He has the authority to negotiate on our behalf with respect to the collection of the
debt. Please communicate directly with Mr. Pellicano concerning any proposals and
payment . . . .”
Ovitz Alone Hires Pellicano to Investigate Busch
       Busch worked as a journalist for the New York Times in the first part of 2002, and
began working for the Los Angeles Times about mid-2002. Starting in March 2002, and
continuing into May 2002, Busch and another journalist at the New York Times, Bernard
Weinraub, wrote a series of stories on Ovitz and Artists (ante) which apparently were not
flattering. At the time the New York Times stories were published, Ovitz was trying to
sell Artists.
       At a federal criminal trial against Pellicano in April 2008, Ovitz testified as a
prosecution witness. Ovitz testified that he contacted Pellicano on April 11, 2002, to
discuss a “complex situation.” Ovitz testified that the subject of the call was his then-
ongoing efforts to sell Artists, and the news stories by Busch and Weinraub noted above.
Ovitz hired Pellicano with the hope of finding “embarrassing information” about Busch.
Pellicano eventually delivered information to Ovitz which he found “helpful.”



                                              3
       In support of Gorry’s motion for summary judgment in Busch’s current case,
Gorry offered a declaration by Ovitz in which he stated that neither he nor Artists “ever
retained [Gorry] to handle any matter related to Busch.” Further, Ovitz stated that neither
he nor Artists “ever paid Gorry any money to retain Pellicano to investigate Busch.”
Gorry partner Christopher Rudd submitted a declaration in which he stated that, because
Gorry had not been retained by Ovitz or Artists to handle any matter related to Busch,
Gorry did not retain Pellicano to investigate Busch nor did it pay any money to Pellicano
to investigate Busch.1
       According to Gorry partner Rudd’s declaration, “no one from [the firm] spoke to
or communicated with Pellicano regarding Busch . . . [n]or did [the firm] ever receive any
information from Pellicano regarding Busch.” Gorry did not maintain a file or have any
documents related to Busch. The first time Gorry partner Rudd learned about Busch, and
of Pellicano’s investigation of Busch, was when he read news articles regarding
Pellicano’s arrest on charges stemming from his investigation of Busch, among others.
       Other evidence in support of Gorry’s MSJ showed that Ovitz personally hired and
paid Pellicano to investigate Busch.
The Litigation
       In November 2008, Busch filed a first amended complaint against Pellicano,
Ovitz, Gorry and others. As relevant to Busch’s appeal, this operative pleading alleged
causes of action against Gorry respectively for intentional infliction of emotional distress,
assault, invasion of privacy, eavesdropping in violation of Penal Code sections 632 and
637.2, and violation of the Unfair Competition Law (UCL; Bus & Prof. Code, § 17200).2

1
       In her opposition to Gorry’s motion for summary judgment, Busch admitted that
Pellicano’s investigation of her was not initiated because she was a party to any litigation
involving Ovitz or artists, but in retaliation for “writing articles about the entertainment
business,” including articles about Ovitz and artists.
2
        Addition causes of action for negligent hiring against a defendant phone company
based on claims that a phone company employee helped Pellicano tap Busch’s telephone
line, and against the City of Los Angeles for violation of the Information Practices Act of
1977 (see Civ. Code, § 1798 et seq.) based on claims a police officer unlawfully accessed

                                              4
All of the causes of actions were premised on allegations involving direct wrongful acts
by Pellicano, and allegations that he had acted in the course and scope of his retention by
Gorry. Further, Busch alleged that Gorry “conspired” with Ovitz and Pellicano to harm
Busch.
         In June 2014, Gorry filed a motion for summary judgment based on evidence and
argument that it did not retain Pellicano, or use the fruits of his services, for any matter
involving Busch. Busch opposed Gorry’s motion with evidence and argument that Gorry
had retained Pellicano around June 2002, in connection with the firm’s fee collection
lawsuit against Steven Seagal, and that Gorry had, in cooperation with Ovitz, retained
Pellicano on several other legal matters that were active around the time that Pellicano
investigated Busch. Based on these facts, Busch maintained that it reasonably could be
inferred that the firm had also retained Pellicano to investigate Busch during the same
general time frame. Further, Busch argued that, because Gorry generally retained
Pellicano, it was liable for all of his wrongful acts committed in the course and scope of
his retention, including his activities against Busch. Busch submitted a declaration
detailing several unnerving incidents during the mid-to-late 2002 time frame, including
damage to her car windshield with a an attached note reading “stop,” and almost being
“run . . . down” by a car with two unknown assailants.
         On September 18, 2014, the parties argued Gorry’s summary judgment motion to
the trial court, and the court issued a minute order granting the motion. On October 3,
2014, the court entered summary judgment in favor of Gorry.
         Busch filed a timely notice of appeal.
                                       DISCUSSION
I.       The Moving Party’s Burden on a Motion for Summary Judgment
         Busch contends the summary judgment in favor of Gorry must be reversed
because the law firm failed to carry its initial burden on its motion for summary judgment
(MSJ). We disagree.

confidential criminal data bases at Pellicano’s behest, are not involved in Busch’s current
appeal.

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       “ ‘A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can prevail.’
[Citation.] The pleadings define the issues to be considered on a motion for summary
judgment. [Citation.] As to each claim as framed by the complaint, the defendant must
present facts to negate an essential element or to establish a defense.” (Ferrari v. Grand
Canyon Dories (1995) 32 Cal.App.4th 248, 252.) If the defendant makes the requisite
prima facie showing, the burden shifts to the plaintiff to demonstrate the existence of a
triable issue of material fact. (AARTS Productions, Inc. v. Crocker National Bank (1986)
179 Cal.App.3d 1061, 1064-1065.) “There is a triable issue of material fact if, and only
if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the applicable standard of proof.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
       We review orders granting or denying a summary judgment motion de novo.
(FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v.
Superior Court (1995) 31 Cal.App.4th 573, 579.) We make “an independent assessment
of the correctness of the trial court’s ruling, applying the same legal standard as the trial
court in determining whether there are any genuine issues of material fact or whether the
moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified
School Dist. (1995) 32 Cal.App.4th 218, 222.)
       As we explain below, the Gorry met its initial burden of negating an element of
the offense and Busch failed to present admissible evidence raising a triable issue of
material fact as to that element. Gorry was therefore entitled to summary judgment.
       Because the issues involved in a MSJ proceeding are framed by the pleadings, we
start there. Here, Busch’s causes of action against Gorry were premised on allegations
that the law firm, in cooperation with Ovitz, hired Pellicano to investigate Busch, and
thus Gorry was liable for damages caused by Pellicano in the course and scope of his
retention. Further, Busch alleged that Gorry “conspired” with Pellicano to have him
harm Busch. Gorry’s MSJ did not fail to carry the initial burden on a MSJ because Gorry
presented evidence showing that it did not hire Pellicano to investigate Busch, and that its

                                              6
members had never heard of Busch until it read about her in news stories after the fact.
In short, Gorry’s evidence undercut Busch’s hiring and conspiring theories. A moving
defendant meets its MSJ burden of showing that there is no merit to a cause of action by
showing that one or more elements of the cause of action cannot be established or that
there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2);
see also, e.g., Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [a moving
defendant is entitled to summary judgment when the record establishes as a matter of law
that none of the plaintiff’s asserted causes of action can prevail].) Upon showing that it
did not hire Pellicano, and that it did not conspire with him to harm Busch, Gorry carried
its initial burden.
       We reject Busch’s argument that Gorry’s evidence was not sufficient to support
granting its MSJ. We agree with Busch that a law firm is liable when it retains a private
investigator that, in the course and scope of the retention, runs amok. (See, e.g., Stephen
Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 769.) Thus, with respect
to any wrongful activities by Pellicano in connection with the Bernier, Casey and
Advantage Marketing litigations, it is legally correct to say that Gorry could have liability
for those activities, even if Gorry did not authorize Pellicano to engage in any wrongful
or unlawful conduct in the course of doing investigations for those three litigations. In
other words, even where a law firm hires a private investigator under a contract which
directs the investigator to use lawful investigatory tactics only, this would not necessarily
cut off liability as to the hiring law firm in the event the investigator went astray and did,
in fact, act unlawfully.
       Such liability, however, is something quite different from the proposition
suggested by Busch –– namely, that in hiring an investigator to do one investigation, a
law firm becomes liable for every action undertaken by the investigator, even as to those
actions that are taken with no relationship to the law firm’s retention. The critical lesson
to be derived from the cases upon which Busch relies, Noble v. Sears Roebuck & Co.
(1973) 33 Cal.App.3d 654 and Stephen Slesinger, Inc. v. Walt Disney Co, supra, 155
Cal.App.4th 736, is that a law firm is liable for wrongs of an investigator undertaken in

                                              7
“the course and scope” of the investigation for which the investigator was hired. Stated
differently, in hiring a private investigator to do one job, a law firm does not make itself
generally liable for every action of the investigator in the course of his or her business
operations; the firm is only liable for those actions undertaken in the course and scope of
the law firm’s particular retention.
II.    Triable Issues of Material Fact
       Busch contends the summary judgment in favor of Gorry must be reversed
because the record contains “persuasive evidence upon which a jury may find that
Pellicano was acting under retention by Gorry.” Factually, Busch argues that “[t]here is
no shortage of evidence of a relationship between Gorry and Pellicano,” and that this
evidence would support a finding that Pellicano’s acts against Busch were “taken
pursuant to his retention by Gorry . . . .” Legally, Busch argues that “[l]iability for the
acts of a private investigator is essentially strict –– an application of respondeat superior.”
We are not persuaded that the trial court erred in granted Gorry’s MSJ.
       Busch argues that Pellicano’s investigation of Busch “coincide[ed] exactly” with
Gorry’s decision to retain the investigator for the Bernier, Casey and Advantage
Marketing litigations, and that this coincidence “implies that the $75,000 paid by Gorry
in May 2002 was to finance Pellicano’s services concerning Busch.” According to
Busch: “In effect, Gorry’s payment[s] in those three cases provided cover or deniability
for Pellicano’s investigation not merely (or principally) of those cases, but of Busch and
Weintraub as well –– the other threat to the sale of Artists.” The problem for Busch is
that the evidence presented to the trial court explicitly showed that Gorry did not retain or
pay Pellicano to investigate Busch, and this defeats the implication that Busch wants
drawn from other evidence. Ovitz expressly admitted in discovery responses that he
personally hired and paid Pellicano to investigate Busch. Further, Ovitz’s discovery
responses were consistent with his testimony in the federal criminal trial against
Pellicano, and with his declaration submitted in support of Gorry’s MSJ, and with the
declaration submitted by Gorry partner Christopher Rudd, all of which showed that Gorry
did not retain or pay Pellicano to investigate Busch.

                                              8
       We reject Busch’s argument that the trial court “failed to draw permissible
inferences.” Busch, no doubt, has a suspicion that, since Gorry retained Pellicano to
investigate parties in three cases involving Ovitz, it follows that Gorry also may have
retained Pellicano to investigate Busch on behalf of Ovitz. However, Busch’s suspicion
that Gorry hired Pellicano to investigate her is not evidence showing there was in fact a
hiring, particularly where the direct evidence presented by Gorry showed there was no
hiring. (Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1404
[conjecture and speculation are not sufficient to raise a triable issue of fact against direct
evidence to the contrary], quoting Wiz Technology, Inc. v. Coopers & Lybrand LLP
(2003) 106 Cal.App.4th 1, 10-11.) Because Gorry made a showing supported by direct
evidence that there was no hiring of Pellicano to investigate Busch, there can be no
reasonable inference of such a hiring, at least not without a showing of some basis for
rejecting the direct facts.
       Busch focuses on the fact that Busch’s DMV and criminal records were accessed
very shortly after Gorry sent checks to Pellicano for his retention in the Bernier, Casey
and Advantage Marketing litigations. The fact that Busch’s DMV and criminal records
were accessed in May 2002, one month after Ovitz admits he himself hired Pellicano to
investigate Busch is not evidence supporting an inference that Gorry hired Pellicano to
investigate Busch, not when such an inference is directly refuted by the direct evidence in
the record.
       Apart from the lack of evidence in her favor, for the reasons explained above, we
reject Busch’s legal argument that Gorry may be found liable for Pellicano’s activities as
a general matter, including his activities involving Busch, even where Pellicano’s Busch-
directed activities were shown to be unrelated to the law firm’s retention of the Pellicano.
III.   Evidentiary Issues
       Busch contends her evidence “was competent and plainly reliable,” and should
have, at a minimum, “resulted in a continuance if required to obtain matters in [proper]
evidentiary form.” It appears Busch is arguing that Gorry’s evidentiary objections to her
opposition evidence were not well-taken, while her objections to Gorry’s evidence

                                               9
(particularly to evidence in its reply papers) were well-taken. We find no ground to
reverse based on these claims of error.
       We begin with the matter of a continuance. Code of Civil Procedure section 437c,
subdivision (h), provides: “If it appears [to the trial court] from the affidavits submitted
in opposition to a motion for summary judgment . . . that facts essential to justify
opposition may exist but cannot, for reasons stated, then be presented, the court shall
deny the motion, or order a continuance to permit affidavits to be obtained or discovery
to be had or may make any other order as may be just.” Subdivision (h) authorizes a
continuance, or a denial of a MSJ for that matter, where the opposing party shows that
evidence may exist, but could not –– “for reasons stated” –– be collected and included in
the party’s opposition papers. We see nothing in Busch’s opposition to the MSJ filed by
Gorry which suggested that Busch believed there was evidence that may exist but which
she could not present for reasons beyond her control. Busch presented the evidence that
she had ––– namely, that Gorry retained Pellicano to investigate parties in a number of
cases in which Gorry represented Ovitz. We see nothing in Busch’s opposition papers at
which suggest that there may be evidence someplace showing that Gorry did, in fact,
retain Pellicano to investigate Busch. We see no claim by Busch in her opposition papers
that Gorry destroyed or hid evidence, or obstructed discovery. On the contrary, Busch
opposed the MSJ based on her argument that a reasonable inference of a hiring could be
drawn from the evidence that she was presenting. We see nothing that convinces us
subdivision (h) was applicable in Busch’s case.
       This leaves the evidentiary questions. Here, we begin by noting that the trial court
did not rule on any evidentiary objections asserted by either party. Accordingly, under
the MSJ procedural law governing at the time the trial court decided Gorry’s motion, we
will presume that the court considered “any evidence to which it did not expressly sustain
an objection.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526-527.) Further,
Busch may challenge the trial court’s presumptively overruled objections on appeal, but
she has the burden to renew her objections in our court. (Id. at p. 534.)



                                             10
          To the extent that Busch argues on appeal that she presented admissible evidence,
we find her argument unnecessary. We presume, in accord with Reid, supra, that the trial
court overruled Gorry’s objections to Busch’s evidence. In short, we accept that Busch
presented evidence establishing certain predicate facts in support of her position that an
inference could be drawn that Gorry hired Pellicano to investigate Busch. We addressed
and rejected Busch’s inference argument above in rejecting her contention that the trial
court erred in granting Gorry’s MSJ.
          This leaves Busch’s argument on appeal that the trial court erred in presumptively
overruling her well-taken objections to Gorry’s evidence. Here, the only specific claim
articulated by Busch in her opening brief is that “[t]he introduction of additional evidence
in [Gorry’s] reply papers, to which [she] had no opportunity to respond and which was
not set forth in the moving Separate Statement, violates both [the requirements of the
MSJ statute] and due process.” Busch’s argument does not support reversal of the trial
court’s decision to grant Gorry’s MSJ because she has failed persuade us that any
evidence offered by Gorry in its reply papers contributed the to the court’s ruling. In
short, Busch has failed to demonstrate any prejudice from the trial court’s error, if any, in
overruling her objections to Gorry’s evidence in its replay papers. (Cal. Const., art. VI,
§ 13.) As regularly discussed above, the trial court granted Gorry’s MSJ because its
moving papers showed that the law firm had not hired Pellicano to investigate Busch, and
Busch did not present any evidence to create a triable issue of fact on the issue of a
hiring.
                                       DISPOSITION
          The judgment is affirmed. Each party to bear its own costs on appeal.




                                                          BIGELOW, P.J.
We concur:


                       RUBIN, J.                   GRIMES, J.

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