Judge: Curtis A. Kin, Case: 22STCV35268, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV35268    Hearing Date: April 20, 2023    Dept: 72

SPECIAL MOTION TO STRIKE (ANTI-SLAPP)

Date:               4/20/23 (9:30 AM)

Case:               Ibiere N. Seck et al. v. Brian T. Dunn (22STCV35268)

TENTATIVE RULING:

Defendant Brian T. Dunn, APC’s Motion to Specially Strike Complaint Pursuant to Code of Civil Procedure, Section 425.16 is DENIED.

The Court employs a two-prong process in ruling on a CCP section 425.16 motion to strike. 

“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Curtin Maritime Corp. v. Pacific Dredge & Construction, LLC (2022) 76 Cal.App.5th 651, 663, quoting Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820, internal quotations omitted.) With respect to the first prong,

“A defendant need only make a prima facie showing that plaintiff's claims arise from the defendant's constitutionally-protected free speech or petition rights.” (Curtin Maritime, 76 Cal.App.5th at 664.) With respect to the second prong, 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.” (Ibid., quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, internal quotations omitted.)

With respect to the first prong, defendant Brian T. Dunn, APC dba The Cochran Firm California maintains that the Complaint arises from defendant’s assertion and enforcement of a lien in the underlying Doe Matter. The Court disagrees. Rather, plaintiffs Ibiere Seck and Seck Law, P.C.’s lawsuit arises from defendant’s alleged refusal after May 20, 2021 to comply with a written contract concerning the distribution of attorney fees between them. (Compl. ¶¶ 16, 17.)

To determine whether the Complaint arises from protected activity, the Court looks to the principal thrust or gravamen of the Complaint. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519–520.) Here, defendant filed its Notice of Attorney Lien in the Doe Matter on May 23, 2019. (Dunn Decl. ¶ 3 & Ex. 2.) The lien was filed in connection with a judicial proceeding, which is protected under CCP § 425.16(e). While plaintiffs allege that defendant continued to assert its lien, plaintiffs also allege that defendant refuses to allow the counsel that settled the Doe Matter to distribute the Cochran Firm’s share of the fees pursuant to the percentages set forth in a written contract. (Compl. ¶ 17.) Under the lien, fees are owed to The Cochran Firm. However, how the fees are distributed between the Cochran Firm and plaintiffs, who formerly employed with The Cochran Firm, is subject to a separate written contract as alleged by plaintiffs.

Clearly, the gravamen of the Complaint is not the assertion of the lien, but the breach of a contract concerning the distribution of fees. Breach of contract is not protected activity. (Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1601–02 [“formation or performance of contractual obligations” does not constitute “exercise of the right to free speech”].) Accordingly, defendant’s assertion of the lien does not give rise to the alleged liability.

Nonetheless, attempting to characterize the instant matter as litigation to impose liability for defendant’s lien, defendant points out that, because the Doe Matter was a contingency fee case, defendant could not enforce its lien until the settlement was received. (Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 293 [“[W]hen the attorney's lien is tied to the client's contingent recovery of property, for example, an award of attorney fees and costs, the attorney cannot enforce the lien until the contingency occurs”].) While that may be true, it is beside the point.  The contractual dispute in the Complaint here arises from the settlement of the Doe Matter.  The lien is only incidental to the parties’ dispute over how fees between plaintiff and the Cochran firm should be allocated between them.

Because defendant fails to show that the Complaint arises from protected activity, the instant motion must fail, and the burden never shifts to plaintiff to demonstrate a probability of prevailing on the merits.

However, even if defendant could satisfy the first prong, plaintiffs demonstrate a probability of prevailing on the merits to satisfy the second prong. Defendant contends that plaintiffs cannot prevail because the action is barred by the litigation privilege set forth in Civil Code § 47(b). The Court disagrees. As discussed above with respect to the first prong, “[t]his cause of action is not based on allegedly wrongful conduct during litigation…. Rather, it is based on breach of a separate promise independent of the litigation [protected by the litigation privilege]…. This breach was not simply a communication, but also wrongful conduct or performance under the contract….” (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1494.)

Defendant also argues that, despite any other agreement concerning fees, the court in the Doe Matter was responsible for allocating attorney fees because the plaintiff in the Doe Matter was a minor. (Hernandez v. Fujioka (1974) 40 Cal.App.3d 294, 302–03 [“The court is required, despite any agreement to the contrary, to determine reasonable fees of counsel. Of necessity, that requirement imposes an obligation upon the court to determine the reasonable compensation of each lawyer where co-counsel, acting in association, have represented a minor in the litigation”].) The import of this argument is not altogether clear.  Regardless, plaintiffs present evidence that defendant’s refusal to allow the distribution of fees to plaintiffs in no way arises from the court’s determination of fees in the Doe Matter or any conduct by defendant in connection therewith.  To the contrary, plaintiffs present evidence that defendant’s dispute over fees from the Doe Matter may be in retaliation for plaintiffs’ success in prior litigation arising from defendant’s refusal to comply with the same agreement with respect to a different action. (Seck Decl. ¶ 8; Lowe Decl. ¶ 7.)

Simply put, plaintiffs demonstrate defendants agreed to a split of fees in the underlying case and have failed to meet that obligation.  (Seck Decl. ¶¶ 3-7.)  That showing is sufficient to meet plaintiffs’ burden under the second prong.

For all the foregoing reasons, the Motion is DENIED.