Judge: Christopher K. Lui, Case: 23STCV16204, Date: 2023-10-12 Tentative Ruling
Case Number: 23STCV16204 Hearing Date: October 12, 2023 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. Counsel must contact the staff
in Department 76 to inform the Court whether they wish to submit on the
tentative, or to argue the matter. As
required by Rule 3.1308(a), any party seeking oral argument must notify ALL
OTHER PARTIES and the staff of Department 76 of their intent to appear and
argue.
Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention
to appear is not given, the Court may adopt the tentative ruling as the final
ruling.
Plaintiffs have filed a declaratory relief action seeking a declaration as to the invalidity of Defendant’s attorney lien claim in the underlying personal injury action, from which Defendant voluntarily withdrew as counsel and Plaintiff subsequently obtained a higher settlement amount than Defendant’s last offer.
Defendant filed a Cross-Complaint alleging that Plaintiff was uncooperative during the representation and failed to disclose important facts regarding the incident and committed perjury, and then stopped communicating with Cross-Complainant, which caused Cross-Complainant to withdraw as counsel.
Plaintiff/Cross-Defendant Francisco Salas brings an anti-SLAPP motion as to the Cross-Complaint.
TENTATIVE RULING
Five days after this motion was filed, Cross-Complainant Law Offices of Mason Rashtian, dismissed the Cross-Complaint without prejudice. However, Cross-Defendant Salas is entitled to a ruling for the purposes of determining the right to recover attorney’s fees.
Because Cross-Defendant Salas did not meet his burden on the first prong, he is not the prevailing defendant as to this anti-SLAPP motion, and is not entitled to recover attorney’s fees pursuant to Civ. Proc. Code, § 425.16(c).
ANALYSIS
Anti-SLAPP Special Motion To Strike
Discussion
Plaintiff/Cross-Defendant
Francisco Salas brings an anti-SLAPP special motion to strike as to the
Cross-Complaint.
Five days
after this motion was filed, Cross-Complainant dismissed the Cross-Complaint
without prejudice. However, Cross-Defendant is entitled to a ruling for the
purposes of determining the right to recover attorney’s fees.
Further, the anti-SLAPP statute, Code of Civil Procedure section
425.16, anticipates circumstances in which parties dismiss their cases while
motions to strike are pending. In such circumstances, the trial court is given
the limited jurisdiction to rule on the merits of the motion in order to decide
if it should award attorney fees and costs to the defendants. (Pfeiffer Venice
Properties v. Bernard (2002) 101 Cal.App.4th 211, 216, 218–219 [123 Cal. Rptr.
2d 647]; Code Civ. Proc., § 425.16, subd. (c).) Thus, here, when plaintiff
dismissed its case at a time when defendants' anti-SLAPP motion was pending,
the trial court continued to have jurisdiction over the case only for the
limited purpose of ruling on defendants' motion for attorney fees and costs.
(Code Civ. Proc., § 425.16, subd. (c); Kyle, supra, 71 Cal.App.4th at p. 908,
fn. 4.)
(Law Offices
of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 879.)
In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue. (Code Civ. Proc., § 425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16(b)(3).) The defendant has the burden on the first issue, and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919.) In making both determinations the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., §425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
The Defendant’s act underlying the cause of action must itself have been in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76-78.) The defendant’s acts are protected activity – that is, made in furtherance of protected petition or free speech in connection with a public issue – if they fit into one of the following categories under the section 425.16, subdivision (e) categories: (1) oral or written statements made before a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made in connection with an issue under consideration or review by a legislative, executive, judicial body, or any other official proceeding authorized by law; (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., § 425.16(e).)
If such a
showing is made, the burden now shifts to Plaintiff to show a probability of
prevailing on the claim. (Code Civ.
Proc., § 425.16(b)(1).) To establish a
probability of prevailing on the merits, the Plaintiff must demonstrate that
the complaint is both legally sufficient and supported by a sufficient prima
facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited. (Matson
v. Dvorak (1995) 40 Cal.App.4th 539, 548.) In making this
assessment it is the court’s responsibility to accept as true the evidence
favorable to the plaintiff. (HMS Capital,
Inc. v. Lawyers Title Co. (2004) 118 Cal. App. 4th 204, 212.)
The Complaint needs only to establish that his or her claim has minimal merit (Navellier v. Sletten (2002) 29 Cal.4th
82, 89) to avoid being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,
738.)
“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.’ (Citation omitted.)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
1. Re: Whether the Causes of Action Are Subject To Being Stricken Pursuant to CCP § 425.16.
Here, the Cross-Complaint alleges breach of contract, intentional misrepresentation, tortious interference with contract, and breach of fiduciary duty.
Cross-Defendant has not met his burden of demonstrating that each of these causes of action arise out of any act in furtherance of the right of petition or free speech, subject to being stricken under Civ. Proc. Code, § 425.16. Cross-Defendant had the burden to focus on the allegations supporting each cause of action and identify what act falls within which category set forth in Civ. Proc. Code, § 425.16(e)(1)-(4).
“The first prong of analysis ‘under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action … . ’ [Citation.]” (Ibid.)
(Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 58.)
Although Cross-Defendant discusses each cause of action as to the second prong (as to which Cross-Complainant, not Cross-Defendant bears the burden), the Court cannot skip the first prong.
In sum, defendants did not meet their burden with respect to the first part of the anti-SLAPP analysis, to show that plaintiff's claims arise from activity protected under the anti-SLAPP statute. We therefore need not consider defendants' arguments that plaintiff failed to establish a probability of prevailing on the merits; the burden never shifted to plaintiff to do so. (Citation omitted.) Of course, defendants may be correct that plaintiff's causes of action will turn out to be fatally flawed for one reason or another, including the statutory immunities afforded to peace officers and public employees generally, or failures of pleading or proof on the part of plaintiff. Their arguments regarding the merits of plaintiff's claims may properly be raised through pretrial procedural vehicles other than an anti-SLAPP motion, or at trial.
(Anderson v. Geist (2015) 236 Cal.App.4th 79, 90 [bold emphasis added].)
Here, because
Cross-Defendant did not meet his burden on the first prong, he is not the
prevailing defendant as to this anti-SLAPP motion, and is not entitled to
recover attorney’s fees pursuant to Civ. Proc. Code, § 425.16(c).