Judge: Mark A. Young, Case: 23SMCP00011, Date: 2023-04-11 Tentative Ruling

Case Number: 23SMCP00011    Hearing Date: April 11, 2023    Dept: M

CASE NAME:           Sanchez v. Sanchez, et al.

CASE NO.:                23SMCP00011

MOTION:                  Anti-SLAPP

HEARING DATE:   4/11/2023

 

Legal Standard

 

            Code of Civil Procedure section 425.16 permits 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.  “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

 

            “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

 

EVIDENTIARY ISSUES

 

            The Court notes that the evidentiary objections are not numbered and should be numbered in all future filings.  That said, Defendants’ objections to the Declaration of Michael Waddington, paragraphs 8-10, 12-14, 16-21, 24, 28-38, 40-41, and 43-50 are SUSTAINED based upon hearsay, foundation and relevance grounds. Objections to paragraphs 15 [not offered for the truth of the matters asserted therein], 25, 26, 39, and 42 are OVERRULED        .

 

LAWYER DEFENDANTS’ ANTi-SLAPP

 

First Prong - Lawyer Defendants

 

      Defendants Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. (“Bird Marella”) and Terry W. Bird (collectively, “Lawyer Defendants”) move to strike the entire first amended complaint (FAC) or in the alternative each cause of action stated against them. The FAC claims five causes of action for civil extortion, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), breach of contract (against Ms. Sanchez), and unjust enrichment (against Ms. Sanchez). The Lawyer Defendants contend that this action arises from protected activity, to wit, an exchange of draft complaints by counsel in anticipation of litigation.

 

            Code of Civil Procedure section 425.16(e) defines protected acts as 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.

 

             Generally, a demand letter or other communications sent in anticipation of litigation constitutes legitimate speech or petitioning activity protected under the anti-SLAPP statute. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293.) Pre-litigation demand letters like the one at issue here are protected activity if they (1) concern the subject matter of a legal dispute and (2) are made in anticipation of a litigation which is (3) contemplated in good faith and (4) under serious consideration. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268; see Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 833 [letter “written in response to a prelitigation demand from plaintiff's counsel and previewed [defendant’s] litigation posture” met these preliminary requirements].) In this context, good faith and serious consideration simply means that the defendant was seriously contemplating litigation in good faith.

 

      a.  Alleged Conduct

 

            By way of background, on January 21, 2020, plaintiff’s previous counsel, Thomas Warren, circulated a draft complaint naming Mr. Bezos as a defendant in a complaint alleging defamation, civil RICO, and IIED. (Bird Decl., Ex. A.) On January 31, 2020, Plaintiff filed his complaint in the Los Angeles Superior Court against Mr. Bezos and Mr. Bezos’s chief of security. In response, Mr. Bird released a statement on behalf of Ms. Sanchez (and in Ms. Sanchez’s voice) that Plaintiff Michael Sanchez “secretly provided my most personal information to the National Enquirer -- a deep and unforgivable betrayal.” (Bird Decl. ¶ 7; FAC ¶ 29.)

 

            In response to Ms. Sanchez’s public statement, on June 26, 2020, Plaintiff’s counsel sent Defendants a draft complaint against Ms. Sanchez alleging claims for defamation and IIED. (FAC Ex. G; Bird Decl. Ex. C.) Mr. Sanchez alleged the public statement was untrue. (FAC ¶¶ 10, 44, Ex. G.) That same day, Lawyer Defendants acknowledged receipt of the draft complaint, and requested a call to discuss the complaint. (FAC ¶¶ 46-47.) On July 1, 2020, Lawyer Defendants emailed Plaintiff’s counsel a draft cross-complaint. (FAC ¶¶ 11, 48-49.) In the cover email, Lawyer Defendants explained that the draft cross-complaint was in response to “unsolicited settlement contact by [plaintiff],” meet and confers between counsel, and plaintiff’s draft complaint. (FAC ¶ 49, Ex. G; Bird Decl. Ex. D.) Along with alleging breach of fiduciary duty, breach of contract, intrusion into private affairs, public disclosure of private facts, intentional infliction of emotional distress, and civil extortion, the draft cross-complaint alleged sexual battery of Ms. Sanchez by plaintiff while Ms. Sanchez was a minor. (FAC ¶¶ 52-54.) Claims against Lawyer Defendants are based solely on Lawyer Defendants’ communication of the July 2020, draft cross-complaint to plaintiff’s former counsel. (FAC ¶¶ 97-109.)

 

      b.  The Flately Exception

 

In Flatley, the California Supreme Court outlined a narrow exception to the anti-SLAPP protections for statements where illegality of the conduct (i.e. a violation of a criminal statute) is either conceded or conclusively proved. (Flatley v. Mauro (2006) 39 Cal. 4th 299, 316.) The Supreme Court reasoned that extortion is not a constitutionally protected form of speech (R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 420), and thus could not be protected by the anti-SLAPP statute.  Under Flatley, “the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant's concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff's second prong showing of probability of prevailing.” (Id.)  When undisputed facts show litigation activity is unlawful, it is not protected by the anti-SLAPP statute. (Id. at 332-333.) 

 

Flatley, as in this case, concerns allegations of civil and criminal extortion. Criminal extortion is defined as “‘the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . ..’ (Pen. Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]’ (Pen. Code, § 519.) ‘Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.’ (Pen. Code, § 523.)” (Flatley, supra, 39 Cal.4th at 326.) A demand for money accompanied by a threat to report a crime may constitute criminal extortion even if the threat is vaguely worded. (Malin, supra, 217 Cal.App.4th at 1295.) Further, the Rules of Professional Conduct prohibit attorneys from threatening to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. (Cal. Rules of Prof. Conduct, rule 3.10(a).)

 

Flatley regarded Michael Flatley, a world-famous dancer who became the target of allegations that he had raped a woman in a hotel suite in 2002. (Id. at 305.) The alleged victim’s lawyer sent Flatley a demand letter, whereby he threatened to publicly accuse Flatley of sexually assaulting his client unless he “settled” by paying a sum of money. (Id. at 307-310.)  Rather than pay, Flatley called the FBI and filed a claim against the lawyer for civil extortion. (Id. at 305, 311.) The lawyer responded to the lawsuit with an anti-SLAPP motion. (Id. at 311.) The motion was denied, and the California Supreme Court affirmed, holding that where “the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action.” (Id. at 320.) Critically, the letter referenced a police report and the alleged victim’s initial refusal to identify the perpetrator, threatened that an award of punitive damages in the case would result in media exposure of all Flatley’s personal finances, threatened to report Flatley to the criminal authorities for unrelated tax and immigration offenses, and threatened to issue press releases regarding the case to a laundry list of national media outlets. (Id.) In later conversations, the lawyer demanded multiple millions of dollars to settle, or else he would “ruin” Flatley. (Id. at 310-311, emphasis added.)

 

c.  Post Flatley cases

 

In order for the anti-SLAPP protections not to apply, subsequent courts have clarified that the conduct must be criminal as a matter of law, not just a violation of some civil statute or regulation. (See Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804-810 [collecting cases]; Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, 806-807 [attorney committed extortion when he threatened to report the recipient to the state Attorney General, the District Attorney, and the IRS unless a settlement of $75,000 was paid]; Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) 74 Cal.App.5th 506, 519-522 [attorney committed extortion when she threatened to disclose unrelated crimes to a potential merger partner of the recipient if her client’s employment claim wasn’t settled for $490,000].)

 

Recently, the Second District discussed the Flatley exception at length. (Flickinger v. Finwall (2022) 85 Cal.App.5th 822.) Flickinger was a construction case where a property owner attempted to launder money by paying a contractor with money gained from certain illegal kickbacks. This caused the contractor to walk off the job.  (Id.) The homeowner retained counsel who sent a demand letter threatening to sue the contractor for failing to finish. (Id.) In response, the contractor’s counsel sent his own letter pointing out that if the homeowner filed his suit, the kickbacks would become public record as part of the contractor’s defense. (Id. at 828-829.) The homeowner ended up filing two lawsuits – against the contractor and also against the contractor’s counsel for civil extortion. (Id. at 829, 831.) The Court of Appeal declined to extend the Flatley rule to these circumstances. The court observed that “not every threat by an attorney to settle or be sued is extortion.” (Id. at 836.) The trial court must evaluate the claim of extortion through the lens of “ordinary attorney behavior” to determine whether the “an attorney's threats fall wholly outside the bounds of professional norms” and whether an attorney’s threats are “reasonably connected” to the parties’ legal dispute. (Id. at 836-839.) In examining the facts of Flickinger, the Court of Appeal focused on the complete absence of any threat to report the homeowner. (Id. at 837.) Counsel for the contractor had done nothing more than point out a natural consequence of publicity if the homeowner decided to sue. (Id.)

           

d.  Whether the Flately Exception Applies

 

The Court does not find that the presented allegations and evidence rise to extortion as a matter of law, and thus does not apply the Flatley exception. There are two critical distinctions between the conduct in this case and that in Flately.  First, Defendants did not allegedly threaten to report plaintiff to any authorities regarding the alleged criminal conduct. Furthermore, there are no allegations that Defendants sought money or property from Plaintiff in relation to the threat to file the cross-complaint. 

 

The FAC alleges that the draft Cross-Complaint “and subsequent statements, constitutes criminal extortion [] because Attorney Bird has threatened to disseminate to the public numerous false and scurrilous claims that will expose [Plaintiff] to social disrepute and/or criminal prosecution. Those claims include. but are not limited to, Attorney Bird alleging Plaintiff Michael Sanchez of "a long pattern of engaging in fraudulent behavior with insurance companies. creditors. and his own sister", “abandoning cars in Mexico in order to file false claims with insurance companies" “having exploited. berated. intimidated, and/or sought to manipulate his younger sister, [Ms. Sanchez] from an early age.” (FAC ¶ 13.) Further, that Plaintiff “sexually assaulted” his sister on multiple occasions when she was a child and a teenager, “years before she reached the age of majority in California.” (FAC ¶ 14.) Specifically, Bird threatened to file the cross-complaint with such accusations if Plaintiff filed his draft Complaint, which would “undoubtedly expose [Plaintiff] to social disrepute and/or criminal prosecution.” (FAC ¶ 13.) The FAC alleges that there was an “associated threat” that included the “fear that even if Plaintiff Michael Sanchez complies with the current threat, and does not file his draft Complaint, there is nothing stopping his sister, Defendant Lauren Sanchez. or her legal counsel, Attorney Bird, from threatening that they will publish the same horribly monstrous lie about Plaintiff Michael Sanchez if he does not do, or if does not say (or if he does do. or if does say) whatever they so desire.” (FAC ¶ 18.) Essentially, the FAC alleges that while Defendants did not explicitly make a threat, Defendants could later make such a threat when they desired, and that itself is a threat. This attenuated theory would extend extortion beyond even implied threats, but to completely theoretical future threats. Even if the Court considers this as an implied threat, this requires a factual determination which does not support a finding of extortion as a matter of law.

 

The allegations (or evidence) do not provide conclusive proof of extortion. Flatley involved a clear threat of criminal prosecution – the demand letter told Mr. Flatley that although the alleged victim hadn’t identified him to the police yet, there was an open investigation, and the victim would identify him if she wasn’t paid. The letter also indicated that the case would be immediately litigated in the press. No such threat appears in the demand letter that triggered this complaint.

 

Moreover, Defendants’ threat of filing a cross-complaint was not wholly outside the bounds of professional norms. The only statements within the cross-complaint which do not directly relate to the dispute between the siblings are the generalized allegations of “fraudulent behavior” with insurance companies and creditors, including the allegation that Plaintiff committed fraud by “abandoning cars in Mexico in order to file false claims with insurance companies.” This single statement would not render the entire cross-complaint or the threat to file it unrelated to the settlement discussions or the legal dispute between the siblings. At best, in the context of the cross-complaint, this was an attack on Plaintiff’s truthfulness. Whether or not this was relevant or appropriate to allege, there was still no coupled threat to bring such a matter to the attention of any third party. Thus, the Court cannot find the relevant threat to be outside the bounds of professional norms.

 

Moreover, Defendants would have a right to assert all causes of action they had at the time against Plaintiff as a part of a cross-action once Plaintiff filed the complaint. (Code Civ. Proc., § 428.10(a).) In such circumstances, defendants must be allowed to inform plaintiffs of the potential crossclaims, whether permissive or compulsory, without fear of committing extortion as a matter of law. A contrary rule would discourage settlement of all claims between parties, which would undermine California’s policy regarding settlement of disputes.

 

            Plaintiff also contends that there is no evidence Defendants intended to file a civil action. Of course, the FAC and record are replete with evidence that this was the case. The communications concern Plaintiff’s proposed litigation. At face value, Defendants’ response was made in anticipation of litigation threatened by Plaintiff, whether or not the underlying statements were false.

 

            Plaintiff also contends that the evidence demonstrates that the proposed cross-complaint was presented for intimidation purposes, rather than in serious consideration of litigation or in good faith. “A prelitigation communication is privileged only if it ‘relates to litigation that is contemplated in good faith and under serious consideration’ [citation] . . ..  The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘ “ ‘connection or logical relation’ ” ’ to a contemplated action and is made ‘ “ ‘to achieve the objects’ ” ’ of the litigation. [Citation.] ‘Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact.’ ” (Flickinger, supra, at 840, citing Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889.)

 

            The statements in the email (and the cross-complaint) bore a connection or logical relation to the proposed litigation, and advanced Defendants’ interest in avoiding the litigation. The FAC clearly states that these were a part of settlement negotiations and does not allege or proffer anything to the contrary. Plaintiff insists that the sexual assault and other allegations of fraudulent conduct are unrelated to the subject matter of his claims for defamation/IIED as alleged in the FAC. However, this is not the relevant inquiry. While these claims are not directly related to the defamation claims, the claims are still relevant to Defendants’ disputes with Plaintiff and their litigation posture. Simply put, Defendants transmitted the draft cross-complaint and related communications in the context of settlement discussions that Plaintiff engaged. Thus, these statements were made in anticipation of litigation, and concerned the litigation.

 

Plaintiff attacks Defendants’ good faith and serious consideration regarding filing the proposed cross-complaint. Plaintiff perplexingly notes that Defendants initially engaged in good faith efforts to resolve the dispute when Defendants offered $6 million to Plaintiff. (Waddington Decl., ¶ 12, Ex. E.) Aside from that, Plaintiff reasons that the proposed cross-complaint was made in bad faith because i) the investigation was limited to four days, when Bird was on vacation and had limited cell service; ii) the allegations of criminal conduct were made to put Plaintiff’s complaint “in their proper context” rather than support an affirmative claim; and iii) the allegations reference the age of majority in California, when Ms. Sanchez spent her age of minority in New Mexico. As to the investigation, Plaintiff only offers speculation that this was insufficient. There is no substantive evidence that Mr. Bird or his colleagues did not investigate these claims, which might have given rise to an inference that the claims were made in bad faith. Moreover, the fact that Defendants included allegations to put plaintiff’s complaint in the proper context would not demonstrate that Defendants did not seriously intend to file the cross-complaint, or that the cross-complaint’s claims were made in bad faith.

 

As to the allegations concerning the age of majority in California, Plaintiff reasons that these allegations were made in bad faith, since the proper jurisdiction for these allegations would be New Mexico—not California. Overlooking that Plaintiff does not present admissible evidence regarding where Ms. Sanchez spent her childhood, Plaintiff is factually and legally incorrect. First, strictly speaking, the cross-complaint does not allege that the abuse took place in California. The allegations only state that Ms. Sanchez was below the age of majority in California, which does not pertain to where the abuse took place. The allegations simply reference her age when the alleged abuse took place. Second, whether the alleged abuse occurred in California or New Mexico would not affect the personal or subject matter jurisdiction of a California court. Plaintiff presents no authority on this jurisdictional argument. Thus, Plaintiff does not present evidence of bad faith regarding the proposed cross-complaint.

 

The NIED and IIED claims are also based on the same conduct as the extortion, and thus arise from the same protected activity.

 

Therefore, the Lawyer Defendants meet their burden to show that the conduct arises out of protected activity and that the conduct does not rise to the level of extortion as a matter of law.

 

Second Prong

 

Here, the litigation privilege poses a fatal hurdle to Plaintiff’s claims against Defendants.  A plaintiff cannot demonstrate a probability of prevailing on the merits on a cause of action for anti-SLAPP purposes where the cause of action is barred by the litigation privilege codified in Civil Code section 47. “The litigation privilege precludes liability arising from a publication or broadcast made in a judicial proceeding or other official proceeding. ‘ “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” [Citation.] The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” [Citation.]’ [Citation.] The litigation privilege is interpreted broadly in order to further its principal purpose of affording litigants and witnesses the utmost freedom of access to the courts without fear of harassment in derivative tort actions. [Citation.] The privilege is absolute and applies regardless of malice.” (Digerati, supra, at 888–889, fn. omitted.)

 

As with the protected activity analysis discussed above, “[a] prelitigation communication is privileged [under § 47] only if it ‘relates to litigation that is contemplated in good faith and under serious consideration’ [citation] . . .. The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘ “ ‘connection or logical relation’ ” ’ to a contemplated action and is made ‘ “ ‘to achieve the objects’ ” ’ of the litigation. [Citation.] ‘Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact.’ ” (Digerati, supra, 194 Cal.App.4th at 889.)

 

The privilege applies for the same reasons discussed above. The prelitigation communications relate to the contemplated litigation. The statements in the email (and the cross-complaint) bore a connection or logical relation to the proposed litigation, and advanced Defendants’ interest in avoiding the litigation. The FAC clearly states that these were a part of settlement negotiations and does not allege or proffer anything to the contrary, even considering the evidence not deemed admissible by the Court. Plaintiff presents no substantial evidence of bad faith or that Defendants did not seriously consider filing the crossclaim if Plaintiff filed the defamation complaint, such that the litigation privilege would not apply.

 

            In addition, Plaintiff fails to substantiate the claims with prima facie evidence. As to extortion, Plaintiff first cites to the fact that Mr. Bird, on behalf of Ms. Sanchez, offered money to “end this.” (Waddington Decl., ¶ 12, Ex. E.) Of course, this has the demand for payment backwards. Generally, someone extorting another does not offer money to the purported victim. Plaintiff cites other irrelevant evidence, such as Bird’s statements to media which are disconnected from any extortionate threats. (Bird Decl., ¶ 7.) Plaintiff also cites the falsity of Ms. Sanchez claims of abuse (Waddington Decl., ¶¶ 25-26, 46-49) and that Bird did not properly investigate the truth of Ms. Sanchez’s claims (id. ¶¶ 8, 22, 25, 26, 46). Plaintiff cites an irrelevant article by Mr. Bezos, regarding a separate incident, wherein Mr. Bezos states that there is “an associated threat” regarding certain photos, and that those third parties will “keep the photos on hand and publish them in the future if we ever deviate.” (Id., ¶ 24.) Plaintiff effectively reasons that because, in the past, Mr. Bird had disseminated false information pertaining to Plaintiff, that he could do so in the future. Even accepted as true, these pieces of evidence do not show that Bird threatened to accuse Plaintiff of a crime or expose any disgrace or crime, explicitly or impliedly.

 

In addition, Plaintiff argues that there was an implied threat to publicize the allegations, including the fact that Ms. Sanchez has media connections including her fiancé (owner of the Washington Post) and ex-husband (executive chairman of Endeavor, an entertainment and media agency). (Waddington Decl., ¶ 14, Ex. G.) Even liberally interpreted, the mere ability to effectively disseminate information does not reasonably evidence any implicit or explicit threat by Mr. Bird. Plaintiff cites that Mr. Bird at some point believed that Plaintiff’s threat to file a draft complaint coupled with a demand for settlement constituted civil extortion.  Even if hypocritical, this would not render Mr. Bird’s conduct extortionate.

 

The NIED and IIED claims are also based on the same conduct as the extortion. Thus, the litigation privilege would apply to those claims as well.  Moreover, the NIED and IIED claims are barred by the two-year statute of limitations. (CCP § 335.1.) The statute of limitations accrues once the plaintiff suffers severe emotional distress as a result of the defendant's conduct. (Wassmann v. S. Orange Cnty. Cmty. Coll. Dist., (2018) 24 Cal. App. 5th 825, 853.) Here, the FAC alleges that Defendants’ draft cross-complaint caused him to suffer severe emotional distress. (Compl. ¶¶ 56, 102, 107.) Therefore, the claims accrued on July 1, 2020, when plaintiff received the draft cross-complaint. Plaintiff cites a COVID related extension as saving his claims. However, accounting for the additional six months/178-day extension cited, the claims are still time-barred. 178 days after July 1, 2020 would be December 26, 2020. Two years from that date would be December 26, 2022. Even if the extension was 180 days and not 178 days, Plaintiff did not file this lawsuit until January 3, 2023.

 

The Court would also question whether Plaintiff established reasonable and severe emotional distress stemming from the threatened cross-complaint. Plaintiff does not offer his own declaration regarding this element.

 

Accordingly, Plaintiff fails to meet his burden to establish a probability of success on the merits as to the first three causes of action. Therefore, Attorney Defendants’ motion to strike is GRANTED. Any fee request may be made by noticed motion.

 

MS. SANCHEZ’S ANTI-SLAPP

 

Defendant Lauren Sanchez (“Ms. Sanchez”) moves to strike Plaintiff’s FAC in its entirety pursuant to Code of Civil Procedure section 425.16.

 

The analysis on this motion would follow the same analysis discussed above as to the first three causes of action. The first three claims also stem from the same protected activity, i.e., the alleged extortion on Ms. Sanchez’s behalf by the Lawyer Defendants. In opposition, Plaintiff relies on the same arguments and evidence regarding those claims. Thus, those claims would be subject to being stricken under the Anti-SLAPP statute. However, the motions differ as to the fourth and fifth causes of action. The FAC’s fourth cause of action is for breach of contract and the fifth cause of action is for unjust enrichment and solely name Ms. Sanchez.

 

            These contract causes stem from allegations that the parties entered “into a written contract” and that Ms. Sanchez breached the contract. (FAC ¶¶ 111-115, Ex. E.) Ms. Sanchez apparently “received a benefit” under the contract, which was at Plaintiff’s expense, and it would be unjust if she were allowed to retain that benefit. (FAC ¶¶ 117-119.) The contract required Ms. Sanchez to pay Plaintiff a fixed project fee and repay certain invoices for a set term. (FAC, Ex., E.) The contract and the causes do not relate to the alleged extortion. The alleged extortion cannot be said to be the breach of this attached contract. While these are conclusory allegations, and likely fail to state a claim, the Court cannot determine that these are related to the protected activities cited by Defendants, such that they arise from protected activity. Thus, these allegations are not properly attacked by the anti-SLAPP motion. 

Accordingly, Ms. Sanchez’s motion is GRANTED as to the first three causes of action and DENIED as to the fourth and fifth causes. Any fee request may be made by noticed motion.