Judge: Kevin C. Brazile, Case: 20STCV37597, Date: 2022-08-08 Tentative Ruling

Hearing Date: August 8, 2022

Case Name: Urick, et al. v. Elkins Kalt Weintraub Reuben Gartside LLP, et al.

Case No.: 20STCV17462

Matter: Motion for Attorneys’ Fees and Costs

Moving Party: Plaintiffs Dana Urick and Trentyn Urick-Stasa 

Responding Party: Defendants Elkins Kalt Weintraub Reuben Gartside LLP, Jeffrey Riffer 

and Julie Kimball

Notice: OK

Ruling: The Motion for Attorneys’ Fees and Costs is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a malpractice action.  On December 10, 2020, the Court (Judge David Cowan) denied an anti-SLAPP motion filed by Defendants Elkins Kalt Weintraub Reuben Gartside LLP, Jeffrey Riffer, and Julie Kimball.  The Court found that Defendants had failed to meet their burden on the first prong of the anti-SLAPP analysis to show that Plaintiffs’ claims arose from protected activity.

On November 28, 2021, the Court of Appeal affirmed this Court’s ruling on the anti-SLAPP motion.  (See Urick v. Elkins Kalt Weintraub Reuben Gartside, LLP (2021) 2021 WL 5371196, at *1.)

Plaintiffs Dana Urick and Trentyn Urick-Stasa now seek $56,525.00 in attorneys’ fees and costs related to Defendants’ anti-SLAPP motion because they contend the motion was frivolous or solely intended to cause delay.  (Code Civ. Proc. § 425.16(c)(1).)  

“ ‘A determination of frivolousness requires a finding the motion is “totally and completely without merit” (§ 128.5, subd. (b)(2)), that is, “any reasonable attorney would agree such motion is totally devoid of merit.” ’ ”  (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.)

Defendants’ primary contentions for the first prong of the anti-SLAPP motion were that this suit targets their litigation activity in BP171001, and no malpractice exception applies because Plaintiffs were not Defendants’ clients.  

The Court of Appeal found that Plaintiffs’ case was primarily premised on Defendants’ alleged conflict of interest and their provision of bad legal advice, which do not qualify as protected activity.  The Court further found the argument that Plaintiffs were not Defendants’ clients relevant only to the second prong of the anti-SLAPP analysis.  

Defendants’ anti-SLAPP motion was wrong on the merits and could be characterized as  weak.  Nonetheless, the Court does not find that the motion rose to the level of frivolity.  A reasonable attorney might argue that some portions of the pleadings arose from protected activity to the extent there were references to Defendants’ “filing of pleadings and other documents”.  (FAC ¶ 18.)  Again, Defendants were wrong, and the motion was a poor choice, but the briefing did not advance a ridiculous theory.

Further, the evidence does not support that the sole purpose of the anti-SLAPP motion was to cause delay.

Because the anti-SLAPP motion was not frivolous or solely intended to cause delay, the Motion for Attorneys’ Fees and Costs is denied.  The Requests for Judicial Notice are granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.