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Cassidy v. Gaiser5/3/2005
d treating them like dirt."
The first amended complaint further alleged that after Timothy lost his forcible entry and detainer case, "he hatched a malicious scheme to evict the plaintiffs by extra-judicial means, through a self-help eviction by James M. Cassidy." To fulfill this scheme, the defendants ignored that Sharon's purported disclaimer of her interest in the West El Campo property, dated April 7, 2000, was invalid because it was not executed until well after she had accepted the interest in the property. Sharon updated the disclaimer and had it recorded. The document was then filed in the detainer action "for the sole purpose of trying to create immunity under the litigation privilege doctrine." The amended complaint further alleged that without Sharon's "bogus disclaimer," James would have never had the nerve to break in and evict plaintiffs. The amended complaint sought damages and other relief, including a determination that Sharon's disclaimer was invalid and legally ineffective.
The first amended complaint also named attorney Marjorie Muratore and the law firm Michael & Cammack as co-conspirators. They were dismissed after a successful demurrer. The judgment of dismissal was affirmed by this court in Cassidy v. Muratore (April 8, 2003, C039490) [nonpub. opn.] (the Muratore appeal).
After Sharon answered this amended complaint, plaintiffs moved to file a second amended complaint and add seven causes of action, including one for the wrongful death of Harry. The court denied the motion to amend. Additional facts concerning this motion are set forth in the discussion in part II below.
Sharon moved for summary judgment on the amended complaint. She contended there was no civil wrong to support the allegation of a civil conspiracy. She had the power to transfer the West El Campo property even if the disclaimer was invalid. In support of the motion, she provided the declaration of Joseph Stemach, a former estate and gift tax attorney for the Internal Revenue Service. He stated the legal effect of the disclaimer was to determine who was the actual transferor for transfer tax purposes. Even if the disclaimer was invalid, he asserted, it still operated as a legal transfer of Sharon's interest in the property.
Sharon also produced the disclaimer to support her motion for summary judgment. Under the disclaimer she refused to accept the West El Campo property bequeathed to her pursuant to Harry's Living Trust. The disclaimer was signed April 7, 2000. Additional language was added naming Harry as the creator of the interest. The "updated" disclaimer was notarized on May 15, 2000, and recorded on June 15, 2000.
Plaintiffs opposed the motion, arguing that not every act in furtherance of a conspiracy need be tortious.
In reply, Sharon conceded there were triable issues of fact concerning whether the January 2000 note created a tenancy at will and whether the April 2000 disclaimer was valid. But she argued these questions did not matter because the disclaimer, whatever its validity, caused the West El Campo property to revert back to the trust. She further argued that any documents submitted to the court in connection with legal proceedings fell within the litigation privilege.
While Sharon's motion for summary judgment was pending, this court decided the Muratore appeal and the Konig appeal, which addressed demurrers by various attorneys to plaintiffs' action. Plaintiffs had alleged the attorneys were liable for various torts, including abuse of process and civil conspiracy, for their part in helping Timothy to evict plaintiffs. In these appeals, this court determined the documents filed in the detainer action,
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