Rusheen v. Cohen 1/26/04 CA2/4

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2004 » Rusheen v. Cohen 1/26/04 CA2/4

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B152948

Case Date: 05/13/2004

Preview:Filed 1/26/04 Rusheen v. Cohen CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
TERRY RUSHEEN, Cross-Complainant and Appellant, v. BARRY E. COHEN et al., Cross-Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Charles W. Stoll, Judge. Reversed. Law Office of Robert F. Henry and Robert F. Henry for Cross-Complainant and Appellant. Lewis Brisbois Bisgaard & Smith, John R. Feliton, Jr., Elizabeth G. O'Donnell and Raul L. Martinez for Cross-Defendants and Respondents. _________________________________ B152948 (Los Angeles County Super. Ct. No. EC022640)

Terry Rusheen appeals from an order striking his cross-complaint as a SLAPP suit (strategic lawsuits against public participation) under Code of Civil Procedure section 425.16 (hereafter "section 425.16"). He argues that cross-defendants Barry E. Cohen and his law firm lacked standing to bring a special motion to strike under section 425.16 because this cross-complaint is based on Cohen's conduct in representing the interests of his clients in the underlying action. We conclude, first, that Cohen has standing. Second, we conclude that Rusheen has demonstrated a probability that he will prevail on the claim because the litigation privilege of Civil Code section 47, subdivision (b) does not bar the entire cause of action for abuse of process. The trial court erred in granting the special motion to strike. FACTUAL AND PROCEDURAL SUMMARY Terry Rusheen's father, Henry Rusheen, sold the house Rusheen was occupying to Niki Han and Maurice Abikzer. Rusheen refused to move out after escrow closed, leading Han and Abikzer to attempt an eviction. This led to three legal actions, one brought by Han and Abikzer and two by Rusheen. In June 1997, Abikzer and Han filed motions to declare Rusheen a vexatious litigant in each of these three cases, and to require him to post a bond. The trial court ordered Rusheen to move out and awarded Abikzer and Han attorney fees of $3,150. Rusheen's applications for temporary restraining orders were denied. The trial court issued a stay preventing him from filing
2 1

Case Nos. ES004477 - Abikzer and Han v. Rusheen (Abikzer and Han sought a writ of possession of the real property, an order to show cause re harassment, and a temporary restraining against Rusheen); ES004472 - Rusheen v. Han (Rusheen sought an order to show cause re harassment and temporary restraining order, Abikzer not named as a defendant); ES004476 - Rusheen v. Abikzer (Rusheen sought an order to show cause re harassment and temporary restraining order, Han not named as defendant).
2

1

From this point forward, we refer to appellant as "Rusheen."

2

any pleadings, motions or other documents except those relevant to the vexatious litigant motions until those motions could be heard. Before the motions were heard, Han filed a new action, Han v. Rusheen (EC022640), for property damage, fraud, assault and battery, and unjust enrichment. On motion by Han and Abikzer, the trial court froze $30,000 of Rusheen's assets pending the vexatious litigant hearing. After the hearing, the trial court found Rusheen to be a vexatious litigant, and entered a formal order stating that a default would be entered in favor of Han in case No. EC022640 if Rusheen failed to post a $15,000 cash bond before August 4, 1997. Rusheen failed to post the bond. Default judgment against him was entered on February 24, 1998. The trial court denied Rusheen's motion to vacate the default and the vexatious litigant order. His motion for reconsideration also was denied. On his appeal (Han v. Rusheen, B125618), we reversed the trial court in an unpublished opinion. We held there was insufficient evidence to support the finding that Rusheen was a vexatious litigant. We concluded the trial court was without authority to issue the vexatious litigant order, the order freezing $30,000 of Rusheen's assets, and the order requiring him to post a $15,000 bond or suffer a default in case No. EC022640. We also reversed the default judgment because the erroneous trial court orders precluded Rusheen from filing any pleading unless he first posted the $15,000 bond. On remand, the trial court granted Rusheen's motion to vacate the default judgment and the other orders. Rusheen then initiated the cross-complaint at issue in the present appeal. In June 2000, he filed a first amended cross-complaint against Han, Abikzer, Cohen and his law firm, and others. In that pleading he alleged causes of action for abuse of process, conversion, negligence, and intentional infliction of emotional distress. Rusheen sued Cohen individually, and also the Law Offices of Cohen & Cohen and Barry Cohen, a professional corporation. For convenience, we refer to these entities collectively as "Cohen."
3 3

3

Cohen demurred based on the litigation privilege (Civ. Code,

Download Rusheen v. Cohen 1/26/04 CA2/4.pdf