Judge: Kevin C. Brazile, Case: 22STCV16433, Date: 2023-02-14 Tentative Ruling

Hearing Date: February 14, 2023

Case Name: Heidari Law Group, P.C. v. Najafi

Case No.: 21STCV23966

Matter: Anti-SLAPP Motions (2x)

Moving Party: (1) Defendants Mesriani & Associates, Sanaz Imani, and Rodney Mesriani

(2) Defendants Najafi, Seuthe, and Law Offices of Eric Bryan Seuthe & 

Associates

Responding Party: Plaintiffs Heidari Law Group, P.C. and Saman Ryan Heidari

Notice: OK

Ruling: The Anti-SLAPP Motions are denied as moot.  However, the Motions 

would have been granted if the subject claims had not been dismissed.  Therefore, Defendants are entitled to fees/costs if timely requested.

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. 

On July 27, 2022, Plaintiffs Heidari Law Group, P.C. (“HLG”) and Saman Ryan Heidari filed the operative First Amended Complaint (“FAC”) against Defendants Nina Najafi, Eric Bryan Seuthe, Law Offices Of Eric Bryan Seuthe & Associates, Mesriani & Associates, Sanaz Imani, and Rodney Mesriani for (1) breach of contract, (2) declaratory relief, (3) conspiracy to induce breach of contract, (4) breach of the covenant of good faith and fair dealing, (5) fraud, (6) conspiracy to commit fraud, (7) conversion, (8) conspiracy to commit conversion, (9) intentional interference with contract, (10) conspiracy to commit interference with contract, (11) constructive trust, (12) defamation per se, (13) malicious prosecution, (14) abuse of process, and (15) violation of the UCL.  

Among other things, Plaintiffs allege that they were counsel for Najafi in a lawsuit relating to an automobile collision (“Underlying Action”) and that Najafi—after obtaining new counsel—failed to pay a portion of her settlement proceeds to Plaintiffs, as required by their retainer agreement.

On January 13, 2023, Heidari and HLG dismissed the FAC’s thirteenth and fourteenth causes of action.

On May 16, 2022, Nina Najafi filed the Second Amended Cross-Complaint (“SACC”) against HLG and Heidari for (1) legal malpractice, (2) breach of fiduciary duty, and (3) fraud.  Najafi alleges that Cross-Defendants bungled her settlement.

On August 9, 2022, Heidari and HLG filed a Cross-Complaint against Mesriani & Associates and Rodney Mesriani for (1) indemnity, (2) partial indemnity, (3) equitable indemnity, and (4) contribution.  

On October 19, 2022, Najafi, Seuthe, and Law Offices of Eric Bryan Seuthe & Associates filed an Anti-SLAPP Motion as to the FAC’s claims for malicious prosecution and abuse of process.  That same day, Defendants Rodney Mesriani and Mesriani & Associates filed a separate Anti-SLAPP Motion as to the same causes of action.  

1. Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.  In pertinent part, the statute states, “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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  (Code Civ. Proc. § 425.16(b)(1).)  The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech.  (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)  To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech.  (Ibid.)  From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.  It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ”  (Ibid.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

2. Dismissal of Claims at Issue

As mentioned, on January 13, 2023, Heidari and HLG dismissed the FAC’s thirteenth and fourteenth causes of action.

“[B]ecause a defendant who has been sued in violation of his or her free speech rights is entitled to an award of attorney fees, the trial court must, upon defendant's motion for a fee award, rule on the merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion.”  (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218.)

Plaintiffs rely on L. Offs. of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 to argue that the Court has lost jurisdiction to rule on the Motions.

It’s true that the Motions are now moot.  As discussed, however, the Court can determine the merits of the Motions in order to determine the right to attorneys’ fees.  Even in L. Offs. of Andrew L. Ellis, the Court of Appeal concluded, “[t]he trial court only had jurisdiction to thereafter entertain a motion brought by defendants for attorney fees and costs.”

Here, Defendants will apparently seek fees/costs for their Anti-SLAPP Motions (see Reply), so the Court will consider the merits of such Motions.  

3. Protected Activity 

To meet their burden for the first prong of the anti-SLAPP analysis, Defendants must demonstrate that the malicious prosecution and abuse of process claims arise from protected activity.  That is, it must be that “defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . ‘the act underlying the plaintiff’s cause’ or ‘the at which forms the basis for the plaintiff’s cause of action’ must itself have been an act in furtherance of the right of petition or free speech.’ ”  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63 (internal citations omitted).)  

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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(e).)

Here, the malicious prosecution and abuse of process claims are premised on Defendants’ filing of the Cross-Complaint herein, which is protected activity under Code Civ. Proc. § 425.16(e)(1).  Defendants have met their burden.

4. Minimal Merit

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.”  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)  In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard.  The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP.  (Soukup, supra, 39 Cal.4th at p. 291.)

“[A] plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice.”  (Nunez v. Pennisi (2015) 241 Cal. App. 4th 861, 872–73 (internal quotations marks omitted).)  

“[T]o establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.”  (State Farm Mut. Auto. Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)

As discussed, a malicious prosecution claim requires that the underlying action have terminated in favor of the plaintiff.  For a termination to be in favor of the plaintiff, the termination must reflect on the merits of the suit.  (Jaffe v. Stone (1941) 18 Cal.2d 146, 151-152.)  Plaintiffs’ claim is premised on Defendants’ filing of Najafi’s Cross-Complaint herein (FAC ¶ 139); however, critically, the Cross-Complaint has not been terminated in Plaintiffs’ favor and is instead pending.  Therefore, this claim is defective.

The abuse of process claim is also defective.  This claim is similarly premised on the filing of Najafi’s Cross-Complaint.  (FAC ¶ 146.)  However, “the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”  (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.)  

Given that the subject claims lack merit, the malicious prosecution and abuse of process claims would be stricken if not already dismissed.  Thus, Defendants are entitled to reasonable fees/costs if timely requested.  (Code Civ. Proc. § 425.16(c).)  

Because the subject claims were dismissed, the Motions are denied as moot.

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.