Judge: Joseph Lipner, Case: 23STCV16942, Date: 2024-02-22 Tentative Ruling
Case Number: 23STCV16942 Hearing Date: February 22, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
MAURICE VAN THROWER, Plaintiff, v. MCMURRAY HENRIKS, LLP, et al., Defendants. |
Case No:
23STCV16942 Hearing Date: February 22, 2024 Calendar Number: 8 |
Defendants McMurray Henriks, LLP (“MH”), Randy H. McMurray,
Yana G. Henriks, and Lauren L. Friedenberg (collectively, “Moving Defendants”)
move to strike the Complaint filed by Plaintiff Maurice Van Thrower
(“Plaintiff”) under California’s anti-SLAPP statute, Code of Civil Procedure,
section 425.16. Moving Defendants also demur to the Complaint and move to
strike portions of the Complaint.
The Court GRANTS the anti-SLAPP motion.
The Court OVERRULES the demurrer as moot.
The Court DENIES the motion to strike as moot.
Plaintiff alleges that Defendants conspired to deprive him
of any recovery in the wrongful death action for his brother, Christopher Nash
(“Christopher”).
On March 20, 2019, Christopher was booked into Los Angeles
County Sheriff’s Department – Century Regional Detention Facility (“CRDF”).
Later that day, 17 hours after being booked, Christopher was found unresponsive
in his solitary confinement cell and was pronounced dead at the scene.
Defendant Anthony Nash (“Nash”), Christopher’s biological
brother, contacted MH to pursue a claim arising from Christopher’s death. At
the time, a proceeding was neither filed nor pending for the administration of
Christopher’s estate. (Henriks Decl. at ¶ 3; Exh. 2 at p. 46.) Christopher was
neither married nor had any children at the time of his death. (Henriks Decl.
at ¶ 3; Exh. 2 at p. 46.) As Christopher’s biological brother, Nash was a
successor in interest to Christopher pursuant to Code of Civil Procedure
sections 377.10-377.11 and Probate Code, section 6402. (Henriks Decl. at ¶ 3;
Exh. 2 at p. 46.) Plaintiff was never a client of MH, nor does the Complaint
allege that he was.
On March 20, 2020, MH filed a wrongful death action on
behalf of the Estate of Christopher Nash, by and through Anthony Nash, Los
Angeles County Superior Court Case No. 20STCV11744 (the Wrongful Death Action).
Plaintiff and four other siblings of Nash were joined as Nominal Defendants in
the complaint in the Wrongful Death Action. (Henriks Decl. ¶ 4; Exh. 3 at pp.
55-56.)
MH received a signed Notice of Acknowledgement of Receipt,
dated May 14, 2020, indicating that Plaintiff was served with the Summons and
Complaint in the Wrongful Death Action. (Henriks Decl. ¶ 4, Exh. 3 at p. 84.)
On June 4, 2020, MH filed a Declaration of Plaintiff Anthony Nash Re:
Successorship. (Henriks Decl. ¶ 3, Exh. 2 at pp. 45-51.) On June 5, 2020, MH
filed a Proof of Service reflecting service of the declaration on Plaintiff.
(Henriks Decl. ¶ 5, Exh. 4 at pp. 82-84.)
Plaintiff alleges in this action that between 2020 and 2021,
he received a copy of the Complaint in the wrongful death action and contacted
Nash. Plaintiff alleges that Nash informed Plaintiff that there was no reason
for Plaintiff to contact MH, as Nash would handle everything for the family.
Plaintiff alleges that, in reliance on Nash’s statement, he took no action.
On October 21, 2020, the Wrongful Death Action was removed
to the United States District Court for the Central District of California. On
August 3, 2021, a settlement was reached and notice was provided to the
District Court.
Plaintiff filed this action against the Moving Defendants
and Nash (collectively, “Defendants”) on July 18, 2023, raising claims for (1)
fraud by intentional misrepresentation; (2) breach of fiduciary duty; (3)
negligence/malpractice; (4) restitution/unjust enrichment; (5) conversion; (6)
actual fraud; (7) breach of trust; and (8) failure to protect the trust of
other beneficiaries.
Plaintiff alleges that MH failed in its duties to the Estate
of Christopher Nash or failed to protect the legal beneficiaries of the Estate,
Plaintiff and Christopher’s other siblings, through acts which included failing
to conduct minimum due diligence to ascertain if the information provided by
Nash was true and to locate Plaintiff.
Moving Defendants filed the anti-SLAPP motion, demurrer, and
motion to strike on November 30, 2023. Defendant Lauren L. Friedenberg filed a
joinder to the anti-SLAPP motion on December 15, 2023. Plaintiff filed oppositions to the demurrer
and motion to strike. The opposition to the motion to strike appears to contain
substantive arguments responding to the anti-SLAPP motion as well. Moving
Defendants filed replies in support of all three motions.
Code of Civil Procedure section 425.16 requires the court to
strike causes of action arising from an act in furtherance of the defendant’s
right of free speech or petition unless the plaintiff establishes that there is
a probability that the plaintiff will prevail on the claim.
In assessing a defendant’s Code of Civil Procedure section
425.16 special motion to strike, the court must engage in a two-step process. (Shekhter
v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court
must decide whether the defendant has met the threshold burden of showing that
the plaintiff’s cause of action arises from the defendant’s constitutional
rights of free speech or petition for redress of grievances. (Ibid.)
This burden may be met by showing the act which forms the basis for the
plaintiff’s cause of action was an act that falls within one of the four
categories of conduct set forth in Code of Civil Procedure section 425.16,
subdivision (e).
Once a defendant has met its initial burden and established
that the anti-SLAPP statute applies, the burden shifts to the plaintiff to
demonstrate a “probability” of success on the merits. (Code Civ. Proc., §
425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) “[T]he 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal
quotations omitted.)
To determine the gravamen of an alleged SLAPP, courts look
to the factual basis for liability. (Wallace v. McCubbin (2011) 196
Cal.App.4th 1169, 1190, as modified on denial of reh'g (July 26, 2011)
disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal.5th
376.)
The
anti-SLAPP statute applies to a “cause of action against a person arising from
any act of that person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California Constitution in
connection with a public issue.” (Civ.
Proc. Code § 425.16, subd. (b)(1).) The statute defines such acts to include
the following:
(1)
any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law,
(2)
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,
(3)
any written or oral statement or writing made in a place open to the public or
a public forum in connection with an issue of public interest, or
(4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest.
(Code Civ. Proc., §425.16, subd. (e).)
The Anti-SLAPP statute protects statements and writings made
before a legislative, executive, or judicial proceeding. (Code Civ. Proc., §425.16,
subd. (e)(1).) “The constitutional right to petition ... includes the basic act
of filing litigation....” (Birkner v. Lam (2007) 156 Cal.App.4th 275,
281.) “It is beyond question that the initiation and prosecution of [... a
lawsuit is] protected under the anti-SLAPP statute.” (Paiva v. Nichols
(2008) 168 Cal.App.4th 1007, 1017-1018).
“A cause of action arising from defendant's litigation
activity may appropriately be the subject of a section 425.16 special motion to
strike. Any act includes communicative conduct such as the filing, funding, and
prosecution of a civil action.” (Thayer v. Kabateck Brown Kellner LLP
(2012) 207 Cal.App.4th 141, 154 [internal citations and quotation marks
omitted; cleaned up].) All communicative acts performed by attorneys as part of
their representation of a client in a judicial proceeding or other petitioning
context are per se protected as petitioning activity by the anti-SLAPP statute.
(Cabral v. Martins (2009) 177 Cal.App.4th 471; Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) Further, “communications preparatory to or in
anticipation of the bringing of an action or other official proceeding … are
equally entitled to the benefits of section 425.16.” (Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) California courts
have held that pre-litigation communications such as letters threatening to sue
are protected activity. (Neville v. Chudacoff (2008) 160 Cal.App.4th
1255, 1266 [letter to employer's customers accusing ex-employee of
misappropriation of trade secrets and threatening to file litigation was
protected]; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262,
271 [statements made in 60–day notice of intent to sue required by Prop. 65].)
“Counseling others in anticipation of litigation or encouraging others to sue
is considered protected prelitigation activity.” (Pech v. Doniger (2022)
75 Cal.App.5th 443, 462.)
“[A] statement is ‘in connection with’ litigation under
section 425.16, subdivision (e)(2) if it relates to the substantive issues in
the litigation and is directed to persons having some interest in the
litigation.” (Neville v. Chudacoff, supra, 160 Cal.App.4th at p.
1266; see also Fremont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1167 [statements made by the defendant, who was a
court-appointed liquidator in an insolvency proceeding, to the Insurance
Commissioner concerning the assets of the insolvent company were protected].)
The audience to the statements need not be a party to the proceeding, or even a
potential party, but the audience must have some level of specific interest in
the litigation. (Contemporary Services Corp. v. Staff Pro Inc. (2007)
152 CA4th 1043, 1055 [email to customers accusing competitor of
litigation-related misconduct was protected].)
Plaintiff does not contend that Defendants are liable for
not making him a party to the Wrongful Death Action or for failing to consult
with him. (Opposition at p. 6.) Plaintiff appears to contend that the Moving
Defendants improperly ignored letters sent by him on August 22, 2021 and June
9, 2022, which stated that Plaintiff did not wish for Nash to obtain
Plaintiff’s portion of the damages and informing MH of other allegedly
fraudulent conduct by Nash.
These allegations are comprised of litigation activity.
Further, it is California law that claims regarding “the distribution and
allocation of the settlement proceeds” (Thayer, supra, 207
Cal.App.4th at p. 146) “arise from … constitutionally protected activity” and
therefore “are within the SLAPP statute.” (Id. at p. 154-155.)
California law does not permit liability for filing
lawsuits, except in the case of malicious prosecution. (See Civ. Code, § 47.)
This “litigation privilege[ ] has been referred to as ‘the backbone to an
effective and smoothly operating judicial system.’ [Citation.]” (Silberg v.
Anderson (1990) 50 Cal.3d 205, 214-215.) “The litigation privilege is
absolute… . [Citation.]” (Kashian v. Harriman (2002) 98 Cal.App.4th
892.)
All of the behavior that is the subject of the current
lawsuit consists of litigation-related conduct. It is therefore covered by the
litigation privilege.
Further, Plaintiff does not have standing to bring his
claims for breach of fiduciary duty or malpractice because “an attorney's duty
depends on the existence of an attorney-client relationship: If that
relationship does not exist, the fiduciary duty to a client does not arise.” (Thayer,
supra, 207 Cal.App.4th at p. 160 [internal citation and quotation marks
omitted].) Thus, a non-client may not sue on an attorney-client relationship. (Id.
at pp. 160-161.)
Moreover, there is no duty owed by an attorney to an omitted
heir. (Hall v. Superior Court
(2003) 108 Cal.App.4th 706, 715.) “[H]eirs
who file a wrongful death action have a mandatory duty to join all known
omitted heirs in the 'single action' for wrongful death. If an heir refuses to
participate in the suit as a plaintiff, he or she may be named as a [nominal]
defendant so that all heirs are before the court in the same action. An heir
named as a defendant in a wrongful [death] action is, in reality, a plaintiff.
An heir who was not named as a party and served with the summons and complaint
in a wrongful death action has a claim for damages against the heir(s) who
failed to join him or her.” (Ibid.)
Because Plaintiff has not shown a probability of success on
the merits, the Court grants the anti-SLAPP motion.
Because the Court grants the anti-SLAPP motion, it overrules
the demurrer as moot.
Because the Court grants the anti-SLAPP motion, it denies
the motion to strike as moot.