Judge H. Jay Ford, III, Case Number: 23SMCV00356, Date: 2023-10-10 Tentative Ruling

Defendants Gerald I. Gillock, et al.’s Motion for Attorney’s Fees Pursuant to CCP § 425.16(c) is GRANTED. Attorney’s fees and costs of $30,360.00 (11.8 hours @ $525/hr, 51.5 hours @ $450/hr, $870 appearance fees, $120 in filing fees) are awarded to Defendants.

A “prevailing defendant” on a special motion to strike is “entitled to recover that defendant’s attorney’s fees and costs.” (Code of Civ. Proc. (CCP) §425.16, subd. (c)(1).) The purpose of this provision is to provide the SLAPP defendant financial relief from the plaintiff’s meritless lawsuit. (Liu v. Moore (1999) 69 Cal.App.4th 745, 750 (Liu).)When a plaintiff dismisses his or her complaint while the defendant’s special motion to strike is pending, the court retains jurisdiction to award fees and costs. (See, e.g., Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain); Liu, supra, 69 Cal.App.4th at p. 752; Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456 (Tourgeman).) This is because permitting an eleventh-hour dismissal to eliminate financial liability would undermine the deterrent purpose of the anti-SLAPP statute. (See Liu, supra, at 750–751.)

To award attorney’s fees under Section 425.16 subd. (c)(1) following a dismissal, the court must determine whether a defendant would have prevailed on the then pending special motion to strike. (Liu, at p. 752 (Holding the ordinary anti-SLAPP statute analysis is an essential predicate to an award of fees and costs under subdivision (c)(1).; but see, Coltrain v. Shewalter, supra, 66 Cal.App.4th at 107.) Guided by Liu and Tourgeman, the Court must consider the merits of the filed special motion to strike and decide whether the defendant is a “prevailing defendant” on that basis, just as it would have if the complaint had not been dismissed. (See, e.g., Tourgeman, supra, 222 Cal.App.4th at p. 1458.)

Plaintiff does not provide any evidence or argument in her opposition addressing the merits of Defendant’s anti-SLAPP motion or the merits of her underlying claim. Instead, Plaintiff argues Defendant’s motion should be denied because Defendants “acted in bad faith” when they attached a copy of the arbitration award from the underlying mandatory attorney fee arbitration proceeding to their anti-SLAPP motion. Plaintiff’s argument lacks merit. There is no authority that any breach a breach of a perceived duty of confidentiality owed to a non-client arising from another lawyer’s participation in a mandatory attorney fee arbitration under Business & Prof. Code §6200 et. seq. is a basis to deny a prevailing defendant an award of attorney’s fees under Section 425.16 subd. (c)(1).

“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 [discussing where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether 1st step is met based on “gravamen” test; but rather must determine whether each factual bases supplies the element of claim or merely provides context].)

“[C]ourts 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, supra, 11 Cal.5th at 1009.)

“The moving defendant must show that the challenged claim or claims arise from the defendant's constitutionally protected free speech or petition rights. A defendant need only make a prima facie showing at this stage.” (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1035–1036.) A defendant has the “burden of identifying all allegations of protected activity” on the first prong of SLAPP. (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936-937.) Defendant only meets this burden by demonstrating that the act underlying the plaintiff’s cause of action “fits one of the categories spelled out in section 425.16, subdivision (e).” (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 150.)

Defendants argue the intentional interference with contractual relations claim is based on a statement protected under CCP §425.16(e)(2). CCP §425.16(e)(2) protects communications “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.”

Plaintiff alleges a single cause of action for intentional interference with contractual relations. “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

Here, Defendants identify their alleged statements to Zuckerman advising Zuckerman on legal strategies in the UCLA litigation contrary to Plaintiff’s recommendations, soliciting attorneys to represent Zuckerman in the UCLA litigation, instructing Zuckerman not to cooperate with Plaintiff in the UCLA litigation and instructing Zuckerman not to respond to Plaintiff’s communications in the UCLA litigation. (Complaint, ¶¶33-37.) Plaintiff relies on these alleged statements by Defendants to satisfy the essential element of defendant’s intentional acts designed to induce a breach or disruption of the plaintiff’s contractual relationship.

These statements were made in connection with the UCLA litigation, which was pending at the time. Such statements qualify as protected conduct under CCP §425.16(e)(2). (See Pech v. Doniger (2022) 75 Cal.App.5th 443, 462 [attorney’s claim for intentional interference with contract against former clients’ new attorneys was based on protected conduct under CCP §425.16(e)(2) where plaintiff alleged new attorneys interfered with his fee agreement by advising the clients not to file plaintiff’s draft complaint and advising them of their rights and obligations under their fee agreement with plaintiff]; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 [cause of action for intentional interference with business relations arose from protected conduct under CCP §425.16(e)(2) where claim was based on defendant’s communications with plaintiff’s clients about pending litigation and improperly soliciting clients’ business].)

Once defendant demonstrates that a cause of action arises from protected conduct, 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. (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 second prong of the statute deals with whether the plaintiff has “demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff. A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) In opposing a SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 785; Taus v. Loftus (2007) 40 Cal.4th 683, 714 [a “summary-judgment-like procedure”].)

Again, Plaintiff does not provide any evidence or argument in her opposition regarding the probability of her prevailing on her claim. Therefore, the Court finds Plaintiff has failed to meet her burden to make even a minimal showing that she could prevail on their claim against Defendants.

A prevailing party in an Anti-SLAPP motion is entitled to reasonable attorney’s fees and costs, even if the case was dismissed prior to the Anti-SLAPP motion hearing. (See, e.g., Coltrain, supra, 66 Cal.App.4th at p. 107; Liu, supra, 69 Cal.App.4th at p. 752; Tourgeman, supra, 222 Cal.App.4th at p. 1456.). As analyzed above, Defendants would have prevailed on their Anti-SLAPP motion, thus attorney’s fees and costs are permitted.

Defendant requests attorney’s fees and costs of $30,360.00 (11.8 hours @ $525/hr, 51.5 hours @ $450/hr, $870 appearance fees, $120 in filing fees). (Motion for Attorney’s Fees, pp. 7–9.) These fees and costs are reasonable. The Court awards Defendant $30,360.00 in attorney’s fees and costs as the prevailing party in an Anti-SLAPP motion.