Kettler v. Gould

231 Cal. Rptr. 3d 580, 22 Cal. App. 5th 593
CourtCalifornia Court of Appeal, 5th District
DecidedApril 20, 2018
DocketB282160
StatusPublished
Cited by11 cases

This text of 231 Cal. Rptr. 3d 580 (Kettler v. Gould) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kettler v. Gould, 231 Cal. Rptr. 3d 580, 22 Cal. App. 5th 593 (Cal. Ct. App. 2018).

Opinion

GRIMES, J.

*597Cross-defendants Leslie Gould and his wife Susan Gould contend the trial court erred when it denied in part their anti-SLAPP (strategic lawsuit against public participation) motion. The motion sought to strike certain allegations in a cross-complaint filed by Joel D. Kettler, alleging defamation and other causes of action. The court denied the motion to the extent cross-complainant's claims were based on complaints to the Certified Financial Planners Board of Standards (the CFP Board), finding the CFP Board was not a public agency and there was no public interest issue. The court also denied the motion to the extent the claims were based on communications to cross-complainant's employer, finding the litigation privilege did not apply.

We conclude the trial court's ruling was correct on both points and affirm the order.

FACTUAL AND LEGAL BACKGROUND

1. The Cross-complaint

Cross-complainant is a financial planner and advisor who acted in that capacity for cross-defendant Leslie Gould's elderly parents from 1990 until *598they died, in 2010 and 2011. Cross-complainant had a "close familial relationship" with the Goulds. The elder Goulds gave cross-complainant a power of attorney in 2006, and he managed many aspects of their finances, including payment of their bills and disbursements they authorized to Leslie Gould and his sister. According to the cross-complaint, the parents made these arrangements after expressing concerns their children were spendthrifts who lived beyond their means, to control their access to the parents' funds.

After the deaths of the parents, cross-complainant became the trustee of the Gould Living Trust, of which Leslie Gould and his sister were the beneficiaries. (Cross-complainant succeeded Leslie Gould, who resigned as trustee in June 2011.)

The cross-complaint alleges that in February and March 2013, cross-complainant learned that Leslie Gould had intentionally misdirected correspondence and financial statements to his home, to hide the existence of some of the trust's assets from his sister. Cross-complainant exposed this wrongdoing, as well as Leslie's interception of his parents' mail, including payments.

*585The complaint alleges that, as a result of this exposure:

"13.... Cross-Defendants have engaged in a malicious, vicious, mean-spirited, scorched earth campaign against Cross-Complainant, falsely accusing Cross-Complainant of misappropriating the [elder] Goulds' funds and intentionally deceiving them to obtain the [power of attorney] and become the successor trustee. In addition to filing this frivolous lawsuit, Cross-Defendants have filed complaints with every person or agency imaginable, including, but not limited to, the Department of Insurance, Certified Financial Planner Board of Standards, Inc. ('CFP Board'), Financial Industry Regulatory Authority ('FINRA'), Cross-Complainant's employer, and any other government agency, company, or person that could possibly interfere with Cross-Complainant's ability to engage in his profession. As a result of Cross-Defendants' wrongful actions, Cross-Complainant's employment relationship with his employer has been terminated."

And:

"14. Cross-Defendants have also defamed Cross-Complainant's reputation to other Third Parties, including to existing and potential clients, which has caused one or more clients to cancel their business with Cross-Complainant and no longer use Cross-Complainant as their financial planner/advisor. Cross-Defendants have caused Cross-Complainant to lose clients and hence, commissions, management fees, service fees and performance bonuses."1

The allegations just quoted are incorporated into each of the cross-complaint's nine causes of action.2 In *599addition to damages, cross-complainant sought injunctive relief "preventing Cross-Defendants from continuing their wrongful conduct" in connection with several causes of action.

We will describe additional allegations as necessary in our discussion of the claims on appeal.

2. Cross-defendants' First Anti-SLAPP Motion

Cross-defendants filed an anti-SLAPP motion ( Code Civ. Proc., § 425.16 ).3 They sought to strike the entire cross-complaint. Because all of cross-complainant's causes of action were based at least in part on unprotected activity, the court concluded the anti-SLAPP motion could be denied in its entirety, and did so. Cross-defendants appealed.

While the appeal was pending, the Supreme Court decided Baral v. Schnitt (2016) 1 Cal.5th 376, 205 Cal.Rptr.3d 475, 376 P.3d 604 ( Baral ). Baral gives the courts and parties precise directions on an issue relevant to cross-defendants' motion: how a special motion to strike operates "against a so-called 'mixed cause of action' that combines allegations of activity protected by the statute with allegations of unprotected activity." ( Id. at p. 381, 205 Cal.Rptr.3d 475, 376 P.3d 604.)

Because the parties and the trial court did not have the benefit of Baral , and the trial court denied the anti-SLAPP motion without considering whether and to what extent allegations of protected activity *586could be stricken from a cause of action without affecting the allegations of unprotected activity, we reversed the trial court's ruling and remanded with directions to do so. ( Gould v. Kettler (Oct. 31, 2016, B266652, 2016 WL 6407962) [nonpub. opn.].)

3. Cross-defendants' Second Anti-SLAPP Motion and the Trial Court's Ruling

Before we turn to the ruling on appeal, we briefly explain the statutory background and the Baral decision the trial court was tasked with applying.

a. The background

A defendant may bring a special motion to strike any cause of action "arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue...." ( § 425.16, subd. (b)(1).)

*600

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Cite This Page — Counsel Stack

Bluebook (online)
231 Cal. Rptr. 3d 580, 22 Cal. App. 5th 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kettler-v-gould-calctapp5d-2018.