Judge: Alison Mackenzie, Case: 23STCV18257, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV18257    Hearing Date: January 31, 2024    Dept: 55

NATURE OF PROCEEDINGS:  Defendants Miles Michael Cooley, Michael Brian Garfinkel, Jason Taylor Lueddeke, Michael Patrick Brown, and DLA Piper LLP (Us)'s Special Motion To Strike the Complaint Pursuant to Code of Civil Procedure Section 425.16.

The motion is granted.

The Court strikes the Complaint with prejudice, only as to moving defendants MILES COOLEY, MICHAEL GARFINKEL, JASON LUEDDEKE, MICHAEL BROWN, and DLA PIPER LLP (US).

BACKGROUND

In this case, PATRIZIO MOI (“Plaintiff”), a self-represented litigant, seeks damages against Defendants DLA PIPER LLP (US); DLA Piper attorneys MILES COOLEY; MICHAEL GARFINKEL; JASON LUEDDEKE; and MICHAEL BROWN (collectively, “Moving Defendants”); JABARI’s INC.; JABARI MCDAVID (“McDavid,” Jabari Inc.’s owner); and PHILIP LAWRENCE in connection with a lawsuit (“Lawsuit 1”) filed by Plaintiff and Jabari’s Inc. against Lawrence, and Moving Defendants’ representation of Lawrence in that lawsuit.

Plaintiff is a music producer, engineer, composer, and arranger who allegedly entered a contract with Lawrence whereby Plaintiff would receive shares in a business called Record Plant in exchange for Plaintiff investing in the business. Plaintiff alleges he sued Lawrence after Lawrence failed to issue the shares to Plaintiff. Plaintiff separately reached an agreement with McDavid (who was also allegedly owed shares in Record Plant by Lawrence) whereby Plaintiff loaned money to McDavid to fund Lawsuit 1 in exchange for McDavid repaying the loan, plus interest, granting Plaintiff an irrevocable power of attorney with the right to act in McDavid’s name in Lawsuit 1, and paying Plaintiff 20% of whatever proceeds McDavid received in the case (the “Loan Agreement”). (Compl., ¶¶ 1, 20-22, 24-29.)

Plaintiff alleges that Moving Defendants, who represented Lawrence in Lawsuit 1, (1) caused McDavid to settle his claims against Lawrence and breach the Loan Agreement, (2) created a conflict of interest with Plaintiff’s attorney in Lawsuit 1, which caused that attorney to withdraw from the case, (3) and deprived Plaintiff of the 20% of the proceeds that McDavid received as part of a settlement he reached with Lawrence in the litigation and which Plaintiff alleges he was owed under the Loan Agreement. (Compl., ¶¶ 32-35.)   

The Complaint’s causes of action are (1) Tortious Interference with Contractual Relations, (2) Tortious Interference with Prospective Economic Advantage, (3) Breach of Contract, (4) Breach of Fiduciary Duty, (5) Breach of The Implied Covenant of Good Faith and Fair Dealing, and (6) Intentional Infliction of Emotional Distress.

Moving defendants now move to strike the First, Second and Sixth Causes of Action (the claims alleged against Moving Defendants) in the Complaint pursuant to CCP § 425.16, which extends protections to strategic lawsuits against public participation (“SLAPP” actions). Plaintiff opposes the motion.

Judicial Notice

Judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code § 452(d).) Courts cannot, however, take judicial notice of hearsay statements asserted in court filings.  Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768. Courts can take judicial notice of the fact that complaints were filed, but not of the truth of the statements contained in those.  Arce v. Kaiser Foundation Health Plan, Inc.  (2010) 181 Cal.App.4th 471, 483.  Courts cannot take judicial notice of a judge's findings unless the requirements of res judicata or collateral estoppel must apply pursuant to a final judgment.  Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1051.

Moving Defendants and Plaintiff both seek judicial notice of numerous court records. The Court grants the requests and takes judicial notice of the court documents, except as to the truth of their contents.

Evidentiary Rulings

As to anti-SLAPP motions, “declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26. “The prima facie showing of merit must be made with evidence that is admissible at trial.”  Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289.  Appellate review of rulings on evidentiary objections in connection with a SLAPP motion to strike is for abuse of discretion.  Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th 1337, 1348.

The Court overrules Moving Defendants’ objection no. 2 to the Declaration of Patrizio Moi. The Court sustains Moving Defendants’ remaining objections to the Moi Declaration, as well as to the general and specific objections to the Declarations of Alessandro Zaccagni and Cheryl Rivas, and the objections to the Declarations of Brian K. Trinidad, Jeff A. Mann, and Antonello Moi.

The Court strikes the Supplemental Declarations of Patrizio Moi, Antonello Moi, and Alessandro Zaccagni that Plaintiff filed two days before the hearing, and after Moving Defendants filed their reply. The Court does not consider them for purposes of this motion. Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 765 (affirming court’s discretion to refuse to consider unauthorized “surrebuttal” brief filed day of hearing).

LEGAL STANDARD

A defendant opposing a “strategic lawsuit against public participation” (“SLAPP”) claim may bring an “anti-SLAPP” 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…” CCP § 425.16(b)(1).

Courts use a two-step process for considering anti-SLAPP motions. First, the moving defendant must show that the acts of which the plaintiff complains were protected activity, namely, that they were taken “in furtherance of the [defendant’s] right of petition or free speech under the Unites States or California Constitution in connection with a public issue.” CCP § 425.16(b)(1).

“In determining whether the first step has been established, i.e. the ‘arising from’ element of the anti-SLAPP statute, a court must consider the pleadings and any supporting and opposing affidavits stating the facts upon which alleged liability is based.”  Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443-44.  Moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4^th 181, 186. Specifically, courts decide whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest.  CCP §425.16(e); Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1, 5.

If moving parties successfully have shifted the burden, then opposing parties must demonstrate a probability of prevailing on the merits of the complaint.  Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.

ANALYSIS

SLAPP Statute - Step 1

Moving Defendants argue that Plaintiff’s claims against them are based on protected conduct, which Plaintiff contends that the gravamen of Plaintiff’s claims arises from Moving Defendants’ interference with the Loan Agreement, which was not part of the scope of their representation in Lawsuit 1. For purposes of a SLAPP motion, the protected right to petition includes filing litigation and communications in anticipation of such proceedings.  Miller v. Filter (2007) 150 Cal.App.4th 652, 665.  Communications about pending lawsuits fall within the scope of the SLAPP statute.  Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489.  Communications done in anticipation of litigation are subject to the SLAPP statute when they relate to litigation contemplated in good faith, and under serious consideration.  Rohde v. Wolf  (2007) 154 Cal.App.4th 28, 36-37. 

A reading of the Complaint shows that Plaintiff’s complaints against Moving Defendants stem from litigation-related communications. Plaintiff alleges that Moving Defendants “convinced” (i.e, communicated) with McDavid and his attorney to seek to have McDavid’s attorney substitute into Lawsuit 1, which resulted in Plaintiff’s attorney withdrawing from the case. (Compl., ¶¶ 34-35.) Plaintiff alleges that Moving Defendants caused McDavid to breach the Loan Agreement and deprive Plaintiff of his 20% by “design[ing] and implement[ing]” a plan (i.e., communicating) with McDavid regarding his claims against Lawrence. (Id., ¶ 33.) The court documents submitted with the motion, and the respective declarations with exhibits, make clear that the Complaint necessarily is based upon protected activities.

While the Complaint lists alleged interferences that theoretically could have happened outside of the litigation context, there is no evidence supporting such allegations. (See, e.g., Compl., ¶¶ 39, 40 (“McDavid breaches to the Loan Agreement are not limited to the aforementioned list. Cooley, Garfinkel, Lueddeke, Brown, Lawrence misconducts are not limited to the aforementioned list.”). The only communications and conduct Plaintiff competently put into evidence consist of an attorney’s and a client’s communications expressly made in connection with a pending case, contesting the legal effectiveness of the power of attorney and related documents. (Plaintiff’s Decl., Exs. 9-10). As such, the Court finds that the first prong of the anti-SLAPP analysis has been established here because Plaintiff’s claims against Moving Defendants arise from Moving Defendants’ litigation-related communications, which constitutes protected activity under the First Amendment.

SLAPP Statute - Step 2

“A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim.”  Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888. The litigation privilege applies to the claims asserted by Plaintiff against Moving Defendants: tortious interference with contract, tortious interference with prospective economic advantage, and intentional infliction of emotional distress. Pac. Gas & Elec. Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1132.

The Court agrees with Moving Defendants that Plaintiff’s claims against Moving Defendants are based on Moving Defendants’ alleged communications with McDavid/Jabari, Inc. and/or its counsel in connection with Lawsuit 1. Because Moving Defendants’ alleged actions were taken during its representation of its client in Lawsuit 1, the litigation privilege applies as a substantive defense to all of Plaintiff’s claims. Plaintiff’s declaration does not counter this conclusion.  The only communications and conduct evidenced in Plaintiff’s declaration consist of attorney and client communications expressly made in connection with a pending case, contesting the legal effectiveness of the power of attorney and related documents. (Plaintiff’s Decl., Ex. 9 (Jabari McDavid Decl., dated 8/10/21, in underlying case number 18STCV08191), Ex. A thereto (“CONVERTIBLE LOAN TERM SHEET”), § 2.1 (loan “to use in connection with the Litigation….”), and B (attorney letter to terminate power of attorney, expressly “Re: Patrizio Moi et al v. Phillip Lawrence, et al”)).  As worded, those documents, themselves, are inextricably and expressly tied to litigation, such that they infer anticipated litigation activities.

As for substantive elements of the claims, Plaintiff’s evidence fails to show any independently wrongful act, or any activity outside the litigation privilege, because an opposing party’s disputing the enforceability of litigation documents, in a pending court case, is not actionably illegal.  Although Plaintiff asserted that the loan was separately for the underlying case plaintiff to purchase interests in an entity, the written contract expressly provides that it could be used for the pending litigation. (Plaintiff’s Decl., Ex. 9, Ex. A, § 2.1 (loan “to use in connection with the Litigation….”)).  Plaintiff’s unilateral, subjective contractual beliefs do not govern contract interpreting.  Instead, the parties’ objective intent as shown by the contract wording, rather than the subjective or undisclosed intent of a party, controls as to contract interpretation.  Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal. App. 4th 944, 956.

As for Intentional Infliction of Emotional Distress, while Plaintiff evidenced severe emotional distress, the Court finds that as a matter of law the subject retention of counsel and litigation activities complained of, were not outrageous conduct, as a matter of law, but instead common litigation-related activities typically regarded as being unpleasant to litigants on the opposite side.  (Plaintiff’s Decl., ¶¶ 16-17).

CONCLUSION

The anti-SLAPP motion to strike is granted, as to Moving Defendants.