Klinger v. Alderette CA2/2

Filed 8/6/13 Klinger v. Alderette CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION TWO

BETSY KLINGER, as successor in interest B245403
to Barney Klinger,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC487318)

v.

CRAIG ALDERETE, as successor in
interest to Shirley Alderete, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Ruth Ann Kwan, Judge. Affirmed.

Hillel Chodos for Plaintiff and Appellant.

Knapp, Petersen & Clarke, André E. Jardini, Maria A. Grover, Hilary M.
Goldberg for Defendants and Respondents.
___________________________________________________
 Appellant contends that the trial court improperly held a malicious prosecution
action to be a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc.,
§ 425.16.)1 We determine that the action arose from protected activity and that appellant
failed to establish a reasonable probability of prevailing on the merits. We further find
that the trial court did not abuse its discretion in awarding respondents attorney fees and
costs.
BACKGROUND
The Underlying Lawsuit
On April 6, 2012, Shirley Alderete filed a lawsuit against Barney Klinger and
approximately 40 other defendants stating claims for asbestos-related injuries (the
underlying lawsuit).2 Alderete alleged that her husband worked on various construction
projects at which he was exposed to asbestos. One of these projects was at the Schlitz
Brewery in Los Angeles, where Alderete‟s husband worked for Klinger as a pipefitter for
approximately one month in 1971. Alderete claimed that she became exposed to asbestos
through contact with her husband, particularly when she would shake out and launder his
dusty, asbestos-laden work clothes after he returned home from work. Alderete‟s
husband died of mesothelioma in 2004. In her complaint filed in 2012, Alderete stated
that she suffered “from a condition related to exposure to asbestos and asbestos-
containing products,” and she sought damages for injuries suffered because of this
condition.
The complaint in the underlying lawsuit was served on Klinger on April 24, 2012.
On May 9, 2012, Klinger‟s attorney, Hillel Chodos, noticed Alderete‟s deposition and
requested documents from her. Alderete, through her attorneys, objected, asserting
among other things that the discovery requests violated the trial court‟s discovery order.

1 All further references to statutes are to the Code of Civil Procedure unless
otherwise stated.
2 While this appeal was pending, both Klinger and Alderete died. Pursuant to
orders of this Court, successors in interest have been substituted in their places.

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 On May 21, 2012, Klinger answered the complaint. The next day, Alderete filed a
request for dismissal of Klinger, without prejudice, and the dismissal of Klinger was
entered by the clerk. Alderete‟s attorneys, however, forgot to serve Klinger‟s attorney
with a copy of the request for dismissal, and Klinger‟s attorney did not learn of the
dismissal until June 13, 2012. In the meantime, on behalf of Klinger, he filed a motion to
compel the deposition of Alderete and for production of documents.
After Klinger‟s attorney learned of the dismissal, he sent a letter to Alderete‟s
attorneys asserting that the action was brought without probable cause and with sufficient
malice to support a claim for malicious prosecution. He demanded that fees and costs
incurred by Klinger in the amount of $7,435 be paid in return for a waiver of any claim
for malicious prosecution. Alderete and her attorneys responded by stating that there was
good cause for the filing of the action, and they refused to pay the amount demanded.
The Instant Matter
On June 27, 2012, two weeks after learning of the dismissal, Klinger sued
Alderete as well as her attorneys, Alan Brayton, David Donadio and John Goldstein, and
their firm Brayton Purcel, LLP (BP) for malicious prosecution. (Alderete, Brayton,
Donadio, Goldstein, and BP are collectively referred to herein as respondents.) Klinger
alleged that respondents knew the allegations in the underlying lawsuit against Klinger
were false, and that they had no evidence and could not obtain evidence to support their
claim. Further, according to Klinger‟s allegations, respondents‟ claim was not legally
tenable. Klinger alleged that he, through his attorney, sought information supporting
respondents‟ claim, both through formal and informal means, but respondents did not
provide any such information. Klinger prayed for damages in excess of $25,000 for costs
incurred in defense of the underlying lawsuit and emotional and mental distress.
In August 2012, respondents filed a special (anti-SLAPP) motion to strike
Klinger‟s complaint pursuant to section 425.16. Alderete‟s attorney Donadio submitted a
declaration in connection with the motion. Donadio stated that, in seeking to identify
defendants for Alderete‟s action, BP obtained a deposition transcript containing
testimony given by Alderete‟s husband in a prior lawsuit initiated before he died of

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mesothelioma in 2004. Attached to Donadio‟s declaration were copies of that transcript
wherein Alderete‟s husband testified that he worked for a company called “Allied A.C.”
that was owned by Klinger. Donadio stated that BP investigated Klinger‟s contractor
licenses and found no entity named “Allied A.C.,” and that during the time Mr. Alderete
worked for him, only Klinger‟s sole proprietor general contractor license was active.
Explaining the reasons why BP decided to dismiss Klinger from the underlying
lawsuit, Donadio declared that shortly before Alderete dismissed Klinger, Donadio
learned that Alderete was suffering from lung cancer and not mesothelioma. Donadio
also stated that the decision in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15
(Campbell), issued on May 21, 2012, impacted “asbestos take-home exposure” cases.
The trial court granted respondents‟ anti-SLAPP motion on October 25, 2012. In
its statement of decision, the court noted that Klinger‟s opposition to the motion was not
timely filed or served. The court held that the malicious prosecution complaint arose
from protected activity, and that Klinger failed to meet his burden of prevailing on the
claim. The court further found that Klinger did not show that respondents commenced or
maintained the underlying lawsuit without probable cause, that they initiated the lawsuit
with malice, or that the underlying lawsuit terminated in Klinger‟s favor.
Following the trial court‟s ruling, respondents moved for attorney fees and costs
incurred in connection with the anti-SLAPP motion, seeking a total amount of $30,889.
On January 10, 2013, the trial court found that the amount requested was reasonable and
granted the motion.
DISCUSSION
Klinger appeals from the order granting the anti-SLAPP motion, arguing that the
motion should have been denied. He further asserts that, even if the ruling on the anti-
SLAPP motion is upheld, the order awarding respondents fees and costs must be
reversed, because the fees requested were excessive and unreasonable.
We review the order granting the anti-SLAPP motion de novo. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 325.) The order awarding respondents fees and costs is reviewed

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for an abuse of discretion. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th
1315, 1322.)
I. The Anti-SLAPP Motion Was Properly Granted
The anti-SLAPP statute allows the courts to expeditiously dismiss “„a meritless
suit filed primarily to chill the defendant‟s exercise of First Amendment rights.‟”
(Simpson Strong-Tie, Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Paulus v. Bob Lynch
Ford, Inc. (2006) 139 Cal.App.4th 659, 670; § 425.16, subd. (a).) There are two
components to a motion to strike brought under section 425.16. First, the defendant must
show that the challenged cause of action is one arising from protected activity.3 (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Second, if the lawsuit
affects constitutional rights, the plaintiff must establish a reasonable probability that he or
she will prevail on the merits of the claims. (§ 425.16, subd. (b)(1); City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 76; Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
Klinger concedes that respondents met their burden on the first prong of the anti-
SLAPP analysis. His cause of action for malicious prosecution arises from protected
activity—Alderete‟s filing of the complaint in the underlying lawsuit. (See Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; Sycamore Ridge Apartments
LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1398 (Sycamore Ridge).)
Klinger argues, however, that he sufficiently established a probability of
prevailing on his malicious prosecution claim and therefore he satisfied the second step

3 Under the statute, an act in furtherance of the right of petition or free speech
includes: “(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law, (2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a public issue or an issue of
public interest.” (§ 425.16, subd. (e).)

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of the anti-SLAPP analysis. To establish a probability of prevailing, a plaintiff must
show that the complaint is legally sufficient and is supported by prima facie evidence
sufficient to sustain a favorable judgment if the evidence is credited. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 93; Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at
p. 738; Major v. Silna (2005) 134 Cal.App.4th 1485, 1498.) To avoid being stricken as a
SLAPP, the plaintiff must establish that his or her claim has at least “minimal merit.”
(Navellier v. Sletten, at pp. 88-89.) An anti-SLAPP motion should be granted if the
defendant‟s evidence in support of the motion defeats the plaintiff‟s attempt to establish
evidentiary support for the claim, as a matter of law. (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821.)
“To prevail on a malicious prosecution claim, the plaintiff must show that the prior
action (1) was commenced by or at the direction of the defendant and was pursued to a
legal termination favorable to the plaintiff; (2) was brought without probable cause; and
(3) was initiated with malice.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 292.) The trial court here found that Klinger failed to provide sufficient evidence to
support any one of these three elements.
Because we find that the underlying lawsuit was not brought without probable
cause, we need not determine whether the other elements of Klinger‟s claim were
established. Probable cause exists where the plaintiff relies upon facts which he or she
has reasonable cause to believe are true, and when the legal theory underlying the cause
of action is tenable under the known facts. (Soukup v. Law Offices of Herbert Hafif,
supra, 39 Cal.4th at p. 292.) The determination of whether the institution of the
underlying lawsuit was legally tenable is a question of law. (Sheldon Appel Co. v. Albert
& Oliker (1989) 47 Cal.3d 863, 878.) If “any reasonable attorney” would have
considered the claim tenable under the circumstances, then no claim for malicious
prosecution will lie. (Id. at p. 886; Sycamore Ridge, supra, 157 Cal.App.4th at p. 1402.)
“In determining whether the prior action was legally tenable, i.e., whether the action was
supported by probable cause, the court is to construe the allegations of the underlying

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complaint liberally, in a light most favorable to the malicious prosecution defendant.”
(Sycamore Ridge, at p. 1402.)
Klinger contends that three published opinions rendered the underlying lawsuit
legally untenable. The first of these is O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 342,
in which our Supreme Court held, in the context of asbestos litigation, that a product
manufacturer is not strictly liable or liable for negligence “for harm caused by another
manufacturer‟s product unless the defendant‟s own product contributed substantially to
the harm, or the defendant participated substantially in creating a harmful combined use
of the products.” Klinger was not alleged to be a product manufacturer, but rather a
general contractor who employed Mr. Alderete as a pipefitter. O’Neil appears to have
very little, if any, application to a general contractor employer.
The second and third cases relied on by Klinger, Campbell, supra, 206
Cal.App.4th 15, and Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, were both
decided after Alderete initiated the underlying lawsuit. As acknowledged by Donadio in
his declaration, Campbell limits the scope of certain defendants‟ liability in “asbestos
take-home exposure” cases such as the underlying lawsuit, in which the plaintiff claimed
she was exposed to asbestos by laundering her husband‟s clothing. (See Campbell, at
p. 34.) Although the defendant in Campbell was a property owner, not a general
contractor employer, at least some of the reasoning expressed in Campbell for finding no
liability would potentially apply to the underlying lawsuit. But that does not change the
fact that Campbell was decided on May 21, 2012, nearly a month after the underlying
lawsuit was filed. And Alderete dismissed her lawsuit against Klinger the day after
Campbell was decided. The opinion in the third case, Casey v. Perini Corp., was not
issued until June 13, 2012, well after Klinger was dismissed, and in any case was decided
largely on the basis that the plaintiffs failed to submit sufficient evidence in opposing a
motion for summary judgment. Thus, none of the three cases relied on by Klinger
rendered the underlying lawsuit legally untenable at the time it was filed, and Alderete
did not continue to prosecute the action against Klinger after the one case that potentially
affected the legal tenability (Campbell) was decided.

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 We further find that Alderete (and her lawyers) had reasonable cause to believe
that the allegations against Klinger were true. Evidence supported the conclusion that
Alderete‟s husband contracted mesothelioma through his work as a pipefitter. Her
husband‟s testimony from 2004 supported the conclusion that he worked for Klinger (or
his company) for a time as a pipefitter. Donadio‟s declaration established a reasonable
basis to conclude that Alderete worked directly for Klinger, since only Klinger‟s sole
proprietor‟s license was active during the time period at issue. At the time the underlying
lawsuit was filed, Alderete was thought to have mesothelioma. It was reasonable to
deduce that Alderete was exposed to asbestos because she laundered her husband‟s
clothing on days that he worked for Klinger, among other employers. Employers have
been held liable for asbestos exposure. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,
682; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 962.) Given these facts
and the legal authority at the time, we find that Klinger did not establish a probability of
prevailing on his malicious prosecution claim.
II. We Find No Abuse of Discretion in the Fees Award
In reviewing an award of attorney fees and costs on an anti-SLAPP motion, we
examine whether the trial court abused its discretion, i.e., whether it exceeded the bounds
of reason. (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132
Cal.App.4th 1375, 1388.) “[A]n experienced trial judge is in a much better position than
an appellate court to assess the value of the legal services rendered in his or her court, and
the amount of a fee awarded by such a judge will therefore not be set aside on appeal
absent a showing that it is manifestly excessive in the circumstances.” (Children’s
Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 782.)
After receiving briefing and hearing oral argument, the trial court issued a detailed
decision awarding attorney fees and costs incurred by respondents. As noted in that
decision, respondents‟ attorneys submitted declarations and time records demonstrating
that their work on the anti-SLAPP motion required a significant review of the underlying
file. The work expended on the matter and the fees charged do not appear to be
manifestly excessive, especially when considering that much of the work was done at a

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specially discounted rate. Further, the record supports the trial court‟s conclusion that
fees charged by respondents‟ initial counsel, Mark Abelson, were recoverable.
We also find that the trial court did not abuse its discretion by awarding fees
requested for work done by two of the attorney respondents, Donadio and Goldstein.
Donadio‟s and Goldstein‟s declarations stated that they performed various tasks in
assisting with the anti-SLAPP motion, while they continued to represent Alderete in the
underlying lawsuit. In Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th
510, 524-525, it was held that an attorney who was a defendant could recover attorney
fees for work performed that benefited her as well as her codefendants. Similarly, in
Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206
Cal.App.4th 988, 997, the court found that, even though a party-attorney herself benefited
from work she performed, the work also benefited her copetitioners, and thus an award of
fees was proper. Since the work performed on this matter by Donadio and Goldstein
benefited Alderete, the trial court did not err by finding the fees recoverable.
DISPOSITION
The order granting the anti-SLAPP motion and the related order awarding fees and
costs are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

FERNS, J.*
_________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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