Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an attorney fee dispute.  Plaintiff Reza Safaie entered into an agreement with Defendants Law Offices of Rafi Moghadam APC and Rafi Moghadam to serve as a third-party payor of attorneys’ fees of Defendants’ client Fair Ocean Management LLC.  (First Amended Complaint (“FAC”) ¶9.)   

Defendants submitted invoices which Plaintiff refused to pay as Plaintiff claims the services and expenses were “unconscionable and unreasonable.”  (Id. ¶10.)  Plaintiff told Defendants he no longer desired to serve as the third-party payor for Defendants’ client.  (Id. ¶11.)   

Defendants advised Plaintiff that he did not have the legal right to terminate or cancel the third-party payor agreement, nor did he have the right to contest or dispute any of the billing.  (Id. ¶¶ 12-13.)  Defendants also told Plaintiff that once the case was over Defendants would seek attorneys’ fees, and once the Court awarded Defendants’ fees, Defendants would be willing to negotiate Plaintiff’s liability associated with the third-party payor agreement.  (Id. ¶17.)   

Plaintiff contends this advice converted Defendants’ relationship with him into one of attorney and client.  (Id. ¶23.)  Plaintiff also claims Defendants’ “advice” was both malpractice and fraud.  (Id. ¶¶ 37, 46, 52-54.)   

Based on these allegations, Plaintiff alleges six claims for (1) legal malpractice, (2) breach of fiduciary duty, (3) constructive fraud, (4) intentional fraud, (5) breach of implied covenant of good faith and fair dealing, and (6) negligence.   

This hearing is on Defendant’s special motion to strike pursuant to Code Civ. Proc. section 425.16.  Defendant argues that Plaintiff’s claims arise from their petitioning activities, and Plaintiff has not shown that his claims have merit because they are barred by the litigation privilege and also by collateral estoppel and res judicata.     

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 

The Court first addresses Plaintiff’s threshold claim that the anti-SLAPP motion is untimely.  Our Supreme Court has held that an anti-SLAPP motion is untimely if it could have been brought against the original complaint.   

In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal. 5th 637, 643, the defendant filed an anti-SLAPP motion for the first time after the plaintiff had filed an amended complaint, and the Court held that such a motion to an amended pleading is untimely filed if it could have been pursued earlier as to the original complaint.  (Id. at 639.) The Supreme Court emphasized that the purpose of such a motion is lost when they are filed when litigation is well underway.  (Id. at 645.)  The Court reasoned: “An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.  To minimize this problem,¿section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion).¿This interpretation maximizes¿the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.”  (Id. at 645.)  

Here, the original Complaint was served on Defendants in early March 2023, and the original Complaint contained all of the same substantive allegations as the amended Complaint.  A comparison of the original Complaint in this case and a redline edited version of the FAC shows that the only changes made between the two Complaints was the specification of damages. Therefore, the core substantive allegations that are now being challenged on anti-SLAPP were in the original Complaint and could have been challenged earlier.   

Since being served in March 2023, Defendants have propounded a total of 38 Form Interrogatories, 116 Requests for Admission, 166 Requests for Production of Documents, and have served three meet and confer letters concerning Plaintiff’s responses.  (Hartman Decl. ¶ 13.)  Only now, after 7 months of litigation and multiple rounds of written discovery, have Defendants chosen to attack the FAC on anti-SLAPP grounds.   

This scenario is exactly what the Supreme Court in Newport Harbor prohibits: “A rule automatically reopening a case to anti-SLAPP proceedings upon the filing of any amendment permits defendants to forgo an early motion, perhaps in recognition of its likely failure, and yet seize upon an amended pleading to file the same meritless motion later in the action[.]” The Supreme Court also reiterated that permitting an anti-SLAPP motion to an amended complaint that contained the same allegations as the original Complaint “would encourage gamesmanship that could defeat rather than advance [the] purpose” of the anti-SLAPP statute. (Id.)   The Supreme Court also recognized that anti-SLAPP motions are subject to abuse and are sometimes pursued solely “to delay meritorious litigation or for other purely strategic purposes.”  (Id. at 645, quoting Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 195, 25 Cal.Rptr.3d 298.)  Here, Defendants are doing exactly what was prohibited by Newport Harbor.   

Defendants argue that they filed their special motion to strike within 60 days of the amended complaint, and the motion is therefore timely.  Defendants’ argument misses the point.  Their motion is not untimely because it missed the 60-day window.  Rather, it is untimely because it could have been brought against the original complaint which contained virtually identical allegations as the original complaint.  Defendants do not address this point in their reply.   

Plaintiff seeks sanctions, arguing that Defendants’ special motion to strike is frivolous.  Under section 425.16, “if the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to¿Section 128.5.”  A section 128.5 motion “shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc. 128.5(f)(1)(A).)  Moreover, “[i]f the alleged action or tactic is the making or opposing of a written motion … that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in¿Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”  Plaintiff’s request for sanctions is not made in a separate motion, and Plaintiff also failed to provide Defendant with the 21-day safe harbor.  Accordingly, the Court denies Plaintiff’s request for sanctions.   

CONCLUSION 

Based on the foregoing, the Court DENIES Defendants’ special motion to strike.    

 

IT IS SO ORDERED. 

 

DATED:  November 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court