Judge Elaine W. Mandel, Case Number: 23SMCV02618, Date: 2023-11-08 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV02618, Date: 2023-11-08 Tentative Ruling

Case Number: 23SMCV02618 Hearing Date: February 15, 2024 Dept: P

Tentative Ruling

Mohamadreza Yazdi, D.D.S. v. Blakely Robles, et al. 23SMCV02618

Hearing Date February 15, 2023

Defendant Baum’s Anti-SLAPP Motion

Defendant Robles, Baum & Mizrahi’s Demurrers to First Amended Complaint

In a prior action, defendant herein patient Robles sued plaintiff herein dentist Yazdi for malpractice. Robles received an award after contractual arbitration, entered as a judgment by the superior court and affirmed on appeal.

In this action, Yazdi sues patient Robles and dentists Baum and Mizrahi. Yazdi alleges Baum testified falsely at arbitration, and subsequent dental treatment by defendants Baum and Mizrahi caused or exacerbated Robles’ injuries.

On November 8, 2023 the court denied Baum’s anti-SLAPP motion to the initial complaint and sustained his demurrer with leave to amend. Defendant Robles now files an anti-SLAPP motion and demurs, as do defendants Baum and Mizrahi.

Anti-SLAPP

Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, supra, 31 Cal.4th at 733.

The anti-SLAPP statute covers litigation-related activities, and any statement or writing made in “connection with” litigation receive protection. Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962. Statements made during contractual arbitration are not subject to the anti-SLAPP statute. Century 21 Chamberlain & Assoc. v. Haberman (2009) 173 Cal.App.4th 1, 8. Courts take an expansive view of what constitutes “litigation-related activities” in the context of anti-SLAPP analysis. Baral, supra.

Under the second prong, the burden shifts to plaintiff to show a legally sufficient claim and to prove with admissible evidence a reasonable probability that plaintiff will prevail. E.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 88. To fulfill prong two, plaintiff cannot rely on the allegations of the complaint but must produce evidence admissible at trial. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

Robles moves to strike the first cause of action for equitable relief under the anti-SLAPP statute. He argues it arises from protected litigation activity -- his filing of a complaint against Yazdi, his pursuit of a judgment after arbitration, and his defense of that judgment on appeal.

In opposition, Yazdi argues that since the underlying case was decided in contractual arbitration, under Century 21, the anti-SLAPP statute does not apply. Yazdi is correct the anti-SLAPP statute does not protect statements made in contractual arbitration, since it is not a judicial or official proceeding. The court previously denied Baum’s anti-SLAPP motion on these grounds, since the gravamen of the claim against him was testimony he gave during contractual arbitration.

However, the gravamen of the first cause of action is not a statement made during arbitration, or either party’s initiation of contractual arbitration. The first cause of action is based on allegations that the post-arbitration judgment against Yazdi was improperly entered. FAC pg. 3. That judgment was entered by the superior court and upheld by the court of appeal. Both pursuit of entry of judgment and subsequent appellate proceedings constitute “litigation-related activities.” Robles’ right to obtain judgment after an arbitration award and to preserve that judgment in the appellate court are protected petitioning activity, covered by the anti-SLAPP statute. Prong One is fulfilled.

Prong Two

Yazdi’s opposition includes no admissible evidence showing a reasonable probability he will prevail. GRANTED. Since the only cause of action alleged against Robles has been struck, his demurrer is MOOT.

Dentist Defendants Baum and Mizrahi Demurrers

Baum and Mizrahi demur to Yazdi’s complaint on the grounds that it is premature, as Yazdi has not paid the judgment against him and the complaint does not allege facts showing Baum or Mizrahi committed negligence such that they could be jointly liable for Robles’ injuries.

Under Valley Circle Estates v. VTN Consolidated (1983) 33 Cal. 3d 604, a cause of action for equitable indemnity “accrues at the time the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.” Id. at 611. Under the contribution statute, a “right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or paid more than his pro rata share thereof.” Code of Civ. Proc. §875(c).

A claim for equitable indemnity may be brought “either by filing a cross-complaint in the original action or by filing a separate indemnity action after paying more than its proportionate share of the damages through the satisfaction of a judgment or through a payment in settlement.” Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1194. In other words, if equitable indemnity is not alleged in the original action, the claim does not accrue for a separate action until the judgment debtor pays the judgment.

The FAC alleges “the Patient partially collected on the judgment[.]” FAC ¶8. Mizrahi argues under Evangelatos, Valley Circle and Code of Civ. Proc. §875(c), a judgment debtor must discharge the entire debt before bringing a post-judgment action for indemnity or contribution, and as the FAC admits the judgment has not been completely satisfied, it is subject to demurrer.

In opposition, Yazdi argues under Evangelatos partial repayment is sufficient for purposes of claiming indemnity if the payment represents more than the alleged indemnitee’s proportionate share of damages.

Evangelatos stated an indemnity action may be initiated by a defendant “after paying more than its proportionate share of the damages through the satisfaction of a judgment or through a payment in settlement.” Evangelatos, supra at 1197-1198. The language is clear. Settlement. A post-judgment action for indemnity cannot commence until the judgment has been fully satisfied. As Yazdi admittedly has not discharged the judgment, and he has not allege he settled with Robles, his indemnity claim remains unripe.

Under Cal. Civ. Code §875(c), Yazdi cannot seek contribution. No “joint judgment” was issued in the underlying suit; judgment was entered against Yazdi. Yazdi’s “pro rata share” of the judgment is 100%. Only if and when Yazdi pays the judgment in full, may he bring a claim for equity or contribution. SUSTAINED without leave to amend.