Desai v. Choudhury CA2/2

Filed 10/14/15 Desai v. Choudhury 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

AMIR DESAI, B252306

Cross-complainant and Appellant, (Los Angeles County

Super. Ct. No. NC055957)

v.

PARTHA CHOUDHURY et al.,

Cross-defendants and Appellants.

AMIR DESAI,

Cross-complainant and Appellant,

v.

JONATHAN BEASLEY et al.,

Cross-defendants and Respondents.

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APPEALS from orders of the Superior Court of Los Angeles County.

Ross M. Klein, Judge. Affirmed.

Kasdsinove & Raskin, Edward B. Raskin, Serafina Raskin, Joshua M. Caplan for

Cross-complainant and Appellant Amir M. Desai.

Law Office of James A. Otto, James A. Otto; Regina Ashkinadze for Cross-

defendants and Appellants Partha Choudhury et al. and Cross-defendants and

Respondents Jonathan Beasley et al.

___________________________________________________

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The trial court denied, as to one set of plaintiffs/cross-defendants, a special motion

to strike a cross-complaint as a Strategic Lawsuit Against Public Participation (SLAPP).

(Code Civ. Proc., § 425.16.).1 The trial court granted a second anti-SLAPP motion,

brought by a different set of plaintiffs/cross-defendants.

The appealing plaintiffs/cross-defendants contend, among other things, that the

trial court erred in denying their anti-SLAPP motion because the court improperly

considered release agreements that were the subject of the cross-complaint. The cross-

complainant separately appeals the trial court’s order granting the second anti-SLAPP

motion, arguing that he established a reasonable probability of prevailing.

We affirm the order denying the first anti-SLAPP motion and the order granting

the second.

BACKGROUND

In April 2011, 18 former employees of Molina Healthcare, Inc. (Molina) sued

Molina and its former chief information officer, appellant and respondent Amir Desai,

among others.2 The plaintiffs had previously worked as security analysts and computer

programmers in Molina’s information technology department. All were American

citizens or green card holders. In their complaint, the plaintiffs alleged that Molina and

1 Unless otherwise noted, all further statutory references are to the Code of Civil

Procedure.

2 This is the third appeal in this case. In the first appeal (B237174), decided in

January 2013, we found that the trial court improperly denied a special motion to strike

filed by certain plaintiffs (and cross-defendants) against Molina, because Molina failed to

submit evidence showing that it had a reasonable probability of prevailing on a cross-

complaint it filed. We dismissed the first appeal with respect to Desai because the special

motion to strike targeted a nonoperative cross-complaint filed by Desai. In the second

appeal (B239941), decided in May 2013, we found that a demurrer was properly

sustained in favor of Desai, primarily because plaintiffs’ causes of action against Desai

for employment-based discrimination improperly sought to impose individual liability.

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Desai engaged in improper discrimination and violated various laws by firing the

plaintiffs and replacing them entirely with Indian nationals holding “H-1B visas.”3

In August 2011, Desai filed a cross-complaint against plaintiffs and appellants

Partha Choudhury, Tim Nguyen, James Nguyen, Edward Duong, Ismail Guzey,

Chongwei “Steve” Mo, and Karen Ku (the Group 1 plaintiffs). Desai’s cross-complaint

alleged that in January and February of 2010, each of the Group 1 plaintiffs entered into

severance agreements and written general releases (the Group 1 releases) with Molina,

whereby the Group 1 plaintiffs agreed to “compromise, fully settle and fully release all

claims which [the Group 1 plaintiffs] may have or claim to have against Company arising

out of or in any way relating to . . . employment with and separation of employment from

Company.” “Company” was defined to include Molina, as well as its “agents, officers,

directors, employees, and owners.” At the time the Group 1 releases were executed,

Desai was an employee and officer of Molina. The Group 1 plaintiffs received lump-sum

severance payments for agreeing to the releases. The cross-complaint alleged that, by

filing the initial complaint, the Group 1 plaintiffs breached the terms of the releases, and

that Desai was entitled to an award of attorney fees in connection with this breach.

Soon after the filing of Desai’s original cross-complaint, Desai filed the operative

first amended cross-complaint (FACC). The FACC made largely the same allegations

with respect to the Group 1 plaintiffs. It also added new cross-defendants: plaintiffs and

respondents Tsung-Hsien “Joey” Shen, Jonathan Beasley, Irina Masharova, Anna

Rshtouni, Marcelo Pineda, Charles Price, David De Hilster, Yuri Grishko, Tim Luk, and

Lily Bumatay (the Group 2 plaintiffs). The FACC alleged that Molina participated in

mediation with the Group 2 plaintiffs and thereafter entered into written release

agreements (the Group 2 releases) with them. The Group 2 releases covered Molina, as

well as its “directors, officers, . . . employees and agents.” The Group 2 releases stated,

in part: “In exchange for . . . payment and benefits . . . you are waiving and releasing all

3 Under certain conditions, the United States may grant a work visa to an alien “who

is coming temporarily to the United States to perform services in . . . a specialty

occupation.” (8 U.S.C. § 1101(a)(15)(H)(i)(b).)

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known or unknown claims and causes of action you have or may have, as of the day you

sign this Agreement, against Molina arising out of your employment with Molina,

including your separation from employment.” According to the FACC, at the time the

Group 2 releases were executed, Desai was an officer and employee of Molina. The

FACC alleged that the Group 2 plaintiffs breached the terms of the Group 2 releases by

filing the initial complaint, and that Desai was entitled to an award of attorney fees.

The Group 1 and Group 2 plaintiffs filed separate anti-SLAPP motions. The

Group 1 plaintiffs’ motion argued, among other things, that the Group 1 releases were

unenforceable. The Group 2 plaintiffs contended that Desai had no standing to enforce

the Group 2 releases because he was not an employee of Molina at the time of their

execution. Desai opposed the motions, initially without submitting proof of the release

agreements. Afterward, Desai was granted leave to submit the declaration of Amy

Dobberteen, former assistant general counsel for Molina, attaching copies of the Group 1

and 2 releases.

The trial court denied the Group 1 plaintiffs’ motion, finding that Desai made a

prima facie showing of breach of contract. The court granted the Group 2 plaintiffs’

motions, concluding that Desai was no longer employed by Molina when the Group 2

releases were executed, and that Desai failed to show he was an intended third party

beneficiary of the releases.

The Group 1 plaintiffs timely appealed the order denying their anti-SLAPP

motion, while Desai timely appealed the order granting the Group 2 plaintiffs’ anti-

SLAPP motion.

DISCUSSION

Appeal lies from an order granting or denying a motion to strike under the anti-

SLAPP statute. (§ 425.16, subd. (i).) The anti-SLAPP statute applies to cross-

complaints, as well as to complaints. (§ 425.16, subd. (h); Jarrow Formulas, Inc. v.

LaMarche (2003) 31 Cal.4th 728, 735, fn. 2.) The trial court’s rulings granting and

denying the anti-SLAPP motions are subject to de novo review. (Oasis West Realty, LLC

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v. Goldman (2011) 51 Cal.4th 811, 820; Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 269, fn. 3.)

The anti-SLAPP statute allows courts to expeditiously dismiss “‘a meritless suit

filed primarily to chill the defendant’s exercise of First Amendment rights.’” (Paulus v.

Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 670; § 425.16, subd. (a); Simpson

Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) There are two components to a

motion to strike brought under section 425.16. First, the defendant (or, in this case,

cross-defendants) must show that the challenged cause of action is one arising from

protected activity.4 (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,

67.) Second, if the lawsuit affects constitutional rights, the plaintiff (or cross-

complainant) 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.)

I. Prong one

Desai concedes that the Group 1 and 2 plaintiffs met their burden on the first

prong of the anti-SLAPP analysis. The filing of a complaint is an act undertaken in

furtherance of the constitutional right of petition. (Navellier v. Sletten (2002) 29 Cal.4th

82, 90 (Navellier I).) It is a “writing made before a . . . judicial proceeding.” (§ 425.16,

subd. (e)(1).) The FACC alleges that plaintiffs’ “filing and prosecution of the Complaint

. . . constitutes a violation of the . . . Releases.” The claim, therefore, clearly arises from

4 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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activity protected by section 425.16. (Navellier I, supra, 29 Cal.4th at p. 90; Mundy v.

Lenc (2012) 203 Cal.App.4th 1401, 1408-1409.)

II. Prong two—Group 1 plaintiffs

When the first prong on an anti-SLAPP motion is satisfied, the burden shifts to the

complaining party to establish a probability of prevailing. (HMS Capital, Inc. v. Lawyers

Title Co. (2004) 118 Cal.App.4th 204, 213.) The party must show that the complaint is

legally sufficient and is supported by prima facie evidence that, if credited, would be

sufficient to sustain a favorable judgment. (Navellier I, supra, 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.) The burden under the second prong is similar to that of a party

opposing a motion for summary judgment. (Navellier v. Sletten (2003) 106 Cal.App.4th

763, 768 (Navellier II); Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940,

947.)

The party opposing an anti-SLAPP motion cannot simply rely on the allegations of

the complaint; rather, the opposition must be based on evidence that would be admissible

at trial. (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th

515, 527.) “In reviewing the plaintiff’s evidence, the court does not weigh it; rather, it

simply determines whether the plaintiff has made a prima facie showing of facts

necessary to establish its claim at trial.” (Paulus v. Bob Lynch Ford, Inc., supra,139

Cal.App.4th 659, 673.) To avoid being stricken as a SLAPP, the party opposing an anti-

SLAPP motion must establish that his or her claim has at least “minimal merit.”

(Navellier I, supra, 29 Cal.4th 82, 88-89.)

The gravamen of the FACC is a cause of action for breach of contract. The

elements of a cause of action for breach of contract are: (1) the existence of a contract,

(2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4)

resulting damages to plaintiff. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal. 4th

811, 821.) In opposing the Group 1 plaintiffs’ anti-SLAPP motion, Desai established that

the FACC had at least minimal merit. Desai showed that he was an officer and employee

of Molina at the time of execution of the Group 1 releases, and that the releases expressly

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applied to Molina as well as its officers and employees. He therefore made a sufficient

showing, under the relevant standard of analysis, that he was entitled to enforce the

Group 1 releases. Desai also adequately established that the terms of the Group 1

releases were performed, that the Group 1 plaintiffs breached the releases by bringing

suit, and that he suffered damages by incurring attorney fees.

On appeal, the Group 1 plaintiffs primarily contend that the trial court erred by

considering the Group 1 releases over plaintiffs’ objections. We review the trial court’s

evidentiary rulings for an abuse of discretion. (Public Employees’ Retirement System v.

Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th 643, 683.) We do not overturn

an evidentiary ruling unless “‘the trial court exceeded the bounds of reason, all of the

circumstances before it being considered.’” (Ibid.)

The Group 1 plaintiffs argue that the Group 1 releases were hearsay. The trial

court found that the releases were admissible under Evidence Code section 1271, the

business records exception to the hearsay rule. Evidence Code section 1271 states:

“Evidence of a writing made as a record of an act, condition, or event is not made

inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶]

(a) The writing was made in the regular course of a business; [¶] (b) The writing was

made at or near the time of the act, condition, or event; [¶] (c) The custodian or other

qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The

sources of information and method and time of preparation were such as to indicate its

trustworthiness.”

We find that the trial court did not abuse its discretion by finding the Group 1

releases admissible. In her declaration, Dobberteen, assistant general counsel for Molina,

stated that the releases were prepared and maintained by Molina in its regular course of

business, were kept in Molina’s files after they were executed, and were subsequently

accessed by her. Dobberteen’s declaration was sufficient to render the releases

admissible. Although Molina is a healthcare company, Dobberteen’s statement that the

releases were business documents was credible. Businesses often enter into agreements

with employees during the regular course of business, and Dobberteen, who worked on

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legal matters at Molina, was qualified to speak regarding the releases. Further, the

releases were obviously made at or near the time of the event—they became effective

upon execution. Dobberteen also sufficiently identified the releases and stated that they

were prepared by Molina in connection with the Group 1 plaintiffs’ termination. The

Group 1 plaintiffs’ assertion that the releases were not admissible because they were

prepared “in anticipation of the lawsuit” (Gee v. Timineri (1967) 248 Cal.App.2d 139,

148) is incorrect. The releases appear to have been prepared with the intention of

avoiding litigation. They do not bear the indications of untrustworthiness often

associated with records prepared in anticipation of litigation, like documents concocted to

gain an unfair advantage in litigation. (See id. at p. 144 [disputed financial statement was

admittedly made in preparation for settlement discussion].) As the subject of this

litigation, the Group 1 releases were properly considered.

The Group 1 plaintiffs also contend that their signatures on the releases were never

authenticated. The validity of the signatures was never contested, however. Nor was the

fact that the Group 1 plaintiffs signed the releases. Therefore, Dobberteen’s declaration,

including her uncontested statement that the Group 1 plaintiffs entered into the releases,

was adequate authentication. (See Evid. Code, § 1410; People v. Gibson (2001) 90

Cal.App.4th 371, 383 [“Circumstantial evidence, content and location are all valid means

of authentication”].)

The Group 1 plaintiffs further argue that the releases are unenforceable because,

pursuant to the releases, the Group 1 plaintiffs waived and released all past or present

claims, including claims for intentional torts, such as fraud. They contend that these

releases violate Civil Code section 1668, which states: “All contracts which have for

their object, directly or indirectly, to exempt anyone from responsibility for his own

fraud, . . . or violation of law, whether willful or negligent, are against the policy of the

law.” Civil Code section 1668, however, “is meant to prohibit contracts releasing

liability for future torts [citation], not to prohibit settlements of disputes relating to past

conduct.” (Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1587-1588, fn. 12;

see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754-755.) The

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Group 1 releases did not purport to release any claims for future torts. Furthermore, to

the extent that the Group 1 plaintiffs contend that they were fraudulently induced to enter

into the releases, such a claim would require resolution of disputed issues of fact, and

could not properly be resolved on the anti-SLAPP motion.

Accordingly, we find that the trial court properly denied the Group 1 plaintiffs’

anti-SLAPP motion.5

III. Prong two—Group 2 plaintiffs

Desai was no longer employed by Molina at the time the Group 2 releases were

executed. The parties to the Group 2 releases were the individual Group 2 plaintiffs, on

one side, and Molina, on the other. Molina was defined to include, “its subsidiaries,

predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, attorneys,

employees and agents.” The Group 2 plaintiffs “waiv[ed] and releas[ed] all known or

unknown claims and causes of action . . . against Molina arising out of . . . employment

with Molina.” They also agreed “never to sue” Molina for any reason covered by the

general releases in the agreement.

When a settlement agreement is clear and explicit, we determine the parties’ intent

by reference to the language of the agreement. (Chisom v. Board of Retirement of Fresno

County Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400, 414; Civ. Code,

§§ 1638, 1639.) Here, the Group 2 releases unambiguously apply to Molina

“employees.” The release language does not cover “former employees.” We find that

the releases are clear and explicit, and they do not provide for a release of claims against

former employees, such as Desai.

5 On appeal, the Group 1 plaintiffs argue that the trial court’s order must be reversed

as to plaintiff Karen Ku because Dobberteen’s declaration did not attach a copy of the

release signed by her. Because this issue was never raised in the trial court, we consider

it forfeited. In any event, Dobberteen declared that Ku signed the same release as the

other Group 1 plaintiffs. Ku did not dispute that she executed the release. Desai,

therefore, made a prima facie showing that Ku entered into the release.

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Desai contends for the first time on appeal that he was made a third party

beneficiary to the Group 2 releases by a “non-disparagement” clause in paragraph 10 of

the Group 2 releases. Under this clause, the Group 2 plaintiffs agreed to “not directly or

indirectly say or do anything which would disparage, reflect negatively on, or call into

question Molina’s business operations, products, reputation . . . or the reputation of any

past or present directors, executives, officers, employees, [or] agents . . . of Molina.”

In order for a third party to qualify as a contract beneficiary, the intent to confer

this status must appear in the terms of the agreement. (Brinton v. Bankers Pension

Services, Inc. (1999) 76 Cal.App.4th 550, 558.) “‘It is sufficient if the claimant belongs

to a class of persons for whose benefit it was made.’” (Ibid.) While the non-

disparagement clause covers Desai as a past officer and employee of Molina, we find

nothing in the clause that transforms the general release of Molina and its employees into

a release covering past employees.

“‘As is true with summary judgment motions, the issues in an anti-SLAPP motion

are framed by the pleadings.’” (Paiva v. Nichols (2008) 168 Cal App.4th 1007, 1017;

Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.) In the

FACC, Desai sued the Group 2 plaintiffs for breaching the Group 2 releases by “filing

and prosecuting” the initial complaint. Desai did not sue for disparagement. The FACC

does not mention disparagement or the non-disparagement clause. Nor does the FACC

seek to recover damages for disparagement. And the non-disparagement clause does not

purport to release or waive any claims against former Molina employees.

If anything, the language used in the non-disparagement clause supports the

conclusion that the Group 2 plaintiffs’ agreement to waive and release all claims against

Molina did not apply to former employees. Each clause in a contract helps to interpret

another. (Civ. Code, § 1641.) The parties certainly knew how to cover former

employees—they expressly referenced “past” employees in the non-disparagement

clause. The parties, however, chose not to include past employees within “Molina,” the

beneficiary of the releases. The Group 2 releases, therefore, were clear in that they did

not prohibit the Group 2 plaintiffs from bringing an action against Desai.

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Thus, the trial court correctly found that Desai did not meet his burden of

establishing a probability of prevailing against the Group 2 plaintiffs, and the order

granting the Group 2 plaintiffs’ anti-SLAPP motion was proper.

DISPOSITION

The order denying the Group 1 plaintiffs’ anti-SLAPP motion is affirmed. Desai

shall recover his costs associated with responding to the Group 1 plaintiffs’ appeal. The

order granting the Group 2 plaintiffs’ anti-SLAPP motion is affirmed. The Group 2

plaintiffs shall recover their costs on appeal from Desai.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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