Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

REQUEST FOR DISMISSAL 

Allarie filed a request for dismissal with prejudice of her complaint on May 7, 2024, after Defendants filed their anti-SLAPP motion.  Allarie’s dismissal does not moot the request for attorneys’ fees in connection with Defendants’ special motion to strike.¿ “[A] defendant who has been sued in violation of [the anti-SLAPP statute] is entitled to an award of attorneys fees … even if the matter has been dismissed prior to the hearing on that motion.”¿ (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218.)  Where there has been a voluntary dismissal, the trial court must first rule on the merits of the special motion to strike, and award attorney fees “when a defendant demonstrates that plaintiff's action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success.” (Liu v. Moore, 69 Cal.App.4th 745, 752.)¿¿¿ 

LEGAL STANDARD 

“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged.  Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’  If the plaintiff cannot make this showing, the court will strike the claim.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)   

DISCUSSION 

First Prong 

On the first prong, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.  The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.”  (Bonni, 11 Cal.5th at 1009.)  “A defendant need only make a prima facie showing at this stage.”  (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.)   

To make a showing under the first prong, the moving defendant must demonstrate that the alleged conduct underlying each cause of action fits one of the categories spelled out in § 425.16 subdivision (e).  (Nevallier v. Sletten (2002) 29 Cal.4th 82, 88.)  Defendants contend the alleged wrongdoing falls within two categories:  Subd. (e)(1) protects “any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.”  Subd. (e)(2) protects “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body or any other official proceeding authorized by law.”   

All four of Plaintiff’s claims arise from the allegedly fraudulent proof of service, declaration of due diligence and request for entry of default.  (FAC ¶¶ 31, 41, 58, 61.)  Additionally, Plaintiff claims Defendants ignored her attempts to initiate settlement discussions.  (Id. ¶¶ 43-44.)  It cannot be seriously disputed that these allegedly fraudulent filings and aborted settlement discussions are statements made before or in connection with a judicial proceeding and therefore constitute protected activity.  Service of process, obtaining court orders, and filing declarations are part and parcel of the constitutional right to petition courts for redress.  (Cf.¿Navellier v. Sletten¿(2003) 106 Cal.App.4th 763, 770¿(“Pleadings and process in a case are generally viewed as privileged communications.”))  

Accordingly, because Allarie’s claims arise from the Underlying Action, a protected activity, the Court concludes Defendants have met the first prong, and the burden shifts to Allarie. 

Second Prong 

Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show 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.  (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)  “Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence.  Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law. Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.”  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)  

The SLAPP statute’s second element--a “probability of prevailing”--means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence.  For this reason, a court must apply a “summary-judgment-like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law.”  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) 

Here, Allarie has not filed an opposition so she has not met her burden to show her claims have minimal merit.  In any event, Allarie’s claims are barred by the litigation privilege.  The¿litigation privilege immunizes litigants from liability for torts, other than¿malicious prosecution, which arise from communications in judicial proceedings.  (Silberg v. Anderson¿(1990) 50 Cal.3d 205, 212, 215.)  None of Allarie’s claims are for malicious prosecution.  The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to¿achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.¿[Citations.]” (Id.)¿ 

The privilege generally applies to any communication by a litigant in a judicial proceeding that is made “to achieve the objects of the litigation” and has “some connection or logical relation to the action.” (Id.¿at p. 212.)  It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law,¿supra,¿Torts, §§ 470, 505, pp. 554, 591.)  The primary purpose of the privilege is to afford litigants “the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.¿at p. 213.)  

Pleadings and process in a case are generally viewed as privileged communications. (Rubin v. Green¿(1993) 4 Cal.4th 1187, 1195 (complaint and subsequent pleadings in case were privileged); Merlet v. Rizzo¿(1998) 64 Cal.App.4th 53, 64–66¿(motions for writ of sale and reconsideration);¿California Physicians' Service v. Superior Court¿(1992) 9 Cal.App.4th 1321, 1330¿(defensive pleadings).)  The California Supreme Court has held that the filing of false declarations of service to obtain a default judgment constitutes a communicative act, subject to the litigation privilege.  (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) 

Here, the gravamen of Allarie’s claims is the submission of a false proof of service to secure a default judgment which under Rusheen, is subject to the litigation privilege.  Accordingly, because all of Allarie’s claims are subject to the litigation privilege, she cannot satisfy the second prong.  (See, e.g., Abraham v. Lancaster Community Hospital¿(1990) 217 Cal. App. 3d 796, 824 (the tort of abuse of process is barred by litigation privilege); S.A. v. Meiden (2014) 229 Cal. App. 4th 27, 43 (the litigation privilege under¿Civil Code section 47, subdivision (b), bars intentional infliction of emotional distress claims arising out of litigation conduct); Flatley v. Mauro¿(2006) 39 Cal.4th 299, 322 (“The litigation privilege has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’”)¿ 

Sanctions 

Because Defendants prevailed on their special motion to strike, they are entitled to attorneys’ fees and costs.¿ David seeks $15,914.50 in attorneys’ fees and costs representing 28.8 hours at the hourly rate of $475.¿ (Uss Decl. ¶14.)¿  

Counsel has been practicing law since December 2010, specializing on real estate litigation.  (Id. ¶13.)  While he is an associate, he has approximately 14 years experience.  (Id. ¶¶1, 13.)  He normally charges $500 per hour but has reduced his rate to $475 for this case.  The Court concludes that the hourly rate is reasonable and in line with rates charged by attorneys with similar experience in the Southern California legal market.¿ (See Blacksher v. United States Sec. Assocs. 2008 Cal. Super. LEXIS 1464 at *7 (hourly rate of $500 for associate is reasonable); White Winston Select Asset Fund Series Fund Mp-18 v. Musclepharm Corp., 2021 Cal. Super. LEXIS 65347 at *14 (hourly rate of $520-$555 for associate is reasonable).) 

However, the number of hours expended by defense counsel on a relatively simple anti-SLAPP motion is excessive.¿ The Court has the discretion to reduce the amount of fees (or deny recovery altogether) when the amount of attorney fees is inflated.¿ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635; Meister v. Regents of the Univ. of California (1998) 67 Ca. App. 4th 437, 455.)¿ The Court reduces the hours from 28.8 to 11, representing 10 hours for preparing the motion and 1 hour for preparing for and attending the hearing.¿¿¿¿¿¿    

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendants’ special motion to strike the first amended complaint and awards sanctions in the amount of $5,225. 

 

DATED: June 4, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court