Judge: Lynne M. Hobbs, Case: 21STCV16688, Date: 2024-07-19 Tentative Ruling

Case Number: 21STCV16688    Hearing Date: July 19, 2024    Dept: 61

EMANUEL BROWN vs MCNICHOLAS & MCNICHOLAS, LLP, A CALIFORNIA REGISTERED LIMITED LIABILITY PARTNERSHIP, et al.

TENTATIVE

Cross-Defendant Dennis Ardi’s Special Motion to Strike the Cross-Complaint of McNicholas & McNicholas LLP is DENIED.

Defendant to provide notice.

DISCUSSION

Cross-Defendant David Ardi (Ardi) moves to strike the cross-complaint filed against him by Defendant and Cross-Complainant McNicholas & McNicholas (Defendant) on the grounds that its claims for interference with Defendant’s client relationship arise from protected and privileged litigation-related communications between Ardi and his client. (Motion at pp. 9–15.)

Defendant, however, has dismissed the cross-complaint while the motion was pending, and argues in opposition that the motion is now moot. (Opposition at p. 1.) Ardi in reply argues that the motion is not moot because the court retains jurisdiction to rule on Ardi’s request for fees. (Reply at p. 2.)

The motion is moot. The authority that Ardi cites stands only for the proposition that a determination on an anti-SLAPP motion otherwise mooted by dismissal may be made on a subsequent attorney fees motion. (See Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218.) But there is no fees motion pending here, nor any request for fees made in the anti-SLAPP motion.  In Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, the court held:

[W]e conclude here that because there was no pending fee request, the trial court only had jurisdiction to entertain a subsequent motion for fees, not to decide the merits of the anti-SLAPP motion. The sole request in the Danko Appellants’ anti-SLAPP motions was for an order striking the complaint and each of its causes of action. After Catlin's voluntary dismissal, the request to decide the anti-SLAPP motion was moot; the trial court could not strike a complaint that Catlin had already voluntarily dismissed. (Yang, supra, 178 Cal.App.4th at pp. 879, 881, 100 Cal.Rptr.3d 771.) The trial court was also justified in declining to rule on the Danko Appellants’ anti-SLAPP motion for the purposes of establishing entitlement to a request for fees, as no such request had yet been made. To conclude otherwise would require the court to have issued an advisory opinion.

(Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 774.) Therefore, the anti-SLAPP motion is moot, and the issue of entitlement to attorney fees is unripe, as no request for fees has been made.

Accordingly, the motion is DENIED.