Judge: Maurice A. Leiter, Case: 23STCV08462, Date: 2023-09-18 Tentative Ruling

Case Number: 23STCV08462    Hearing Date: March 27, 2024    Dept: 54

Hearing Date: March 27, 2024

Department 54, Judge Maurice Leiter

Special Motion to Strike First, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action

Moving Party: Plaintiff and Cross-Defendant Chad Darling

Responding Party: Defendants and Cross-Complainants ARC Point Law and Mark Piesner

T/R:    cross-Defendant chad darling’s special moton to strike is DENIED.

            cross-defendant chad darling to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            This action arises from alleged legal malpractice in a martial dissolution action in Ventura County Superior Court, Case No. D363893 (the “Underlying Action”). On October 17, 2023, Plaintiff Chad Darling filed the operative First Amended Complaint against Defendants ARC Point Law (“APL”) and Mark Piesner, alleging causes of action for: (1) negligence (legal malpractice); (2) breach of fiduciary duty; and (3) breach of contract.

            On December 29, 2023, APL and Piesner filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants Chad Darling, and Amanda Darling alleging causes of action for: (1) intentional misrepresentation (fraudulent inducement); (2) breach of written contract; (3) quantum meruit; (4) intentional infliction of emotional distress; (5) conspiracy; (6) intentional interference with perspective economic advantage; (7) negligence; (8) abuse of process; and (9) unfair business practices in violation of the unfair competition law.

            On March 1, 2024, Cross-Defendant Chad Darling filed and served the instant special motion to strike, contending that: (1) the tort claims arise from Cross-Defendant’s alleged statements made in connection with a pending legal proceeding and are protected under the anti-SLAPP statute; (2) Cross-Complainants cannot demonstrate probability of succeeding because these claims are barred by the litigation privilege; and (3) the conspiracy cause of action is not adequately pleaded.            

ANALYSIS

“A special motion to strike under section 425.16—the so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)

“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, subd. (b)(1).)

In analyzing an anti-SLAPP motion, a court engages in a two-step process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “First, the court decides whether the [cross] defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Ibid.) “In making its determination of whether a cause of action arises from protected activity, a 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, subd. (b)(2).) “If the court finds such a showing has been made, it then must consider whether the [cross-complainant] has demonstrated a probability of prevailing on the claim.” (Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 946, internal quotations omitted, citation omitted.) “[S]ection 425.16 treats complaints identically with cross-complaints.” (Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 758.)

A.   Procedural Issues

Cross-Complainants contend that: (1) the special motion to strike was filed beyond the 60-day period following service of the original Cross-Complaint; and (2) there is a discrepancy between the causes of action addressed in the motion and the broader claims discussed in the memorandum of points and authorities.

            A “special motion [to strike] may be filed within 60 days of the service of the complaint, or in the court’s discretion, at any later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) “[A] defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 640.) “[T]he anti-SLAPP statute is designed to resolve . . . lawsuits early, but not to permit the abuse that delayed motions to strike might entail.” (Id. at p. 639.)

            Cross-Defendant seeks to strike the first cause of action for intentional misrepresentation (fraudulent inducement), fourth cause of action for intentional infliction of emotional distress, fifth cause of action for conspiracy, sixth cause of action for intentional interference with perspective economic advantage, seventh cause of action for negligence, and eighth cause of action for abuse of process. But the first cause of action for intentional misrepresentation (fraudulent inducement), the fourth for intentional infliction of emotional distress, and fifth for conspiracy were asserted in the original Cross-Complaint. 

            Additionally, Cross-Defendant states that the FAXC was served on Cross-Defendant on December 29, 2023 by electronic mail. (The FAXC was not filed with a proof of service.)  The special motion to strike should have been filed by February 29, 2024. But counsel states she encountered issues filing the motion on February 28, 2024, and spoke with the Court clerk concerning the rejection of the February 28, 2024 motion papers. (McDowell Decl., ¶¶ 3-4.)  

“[A] trial court enjoys considerable discretion regarding whether to allow the late filing of an anti-SLAPP motion.” (Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th 772, 787.) Exercising its discretion, the Court will not deny the special motion to strike on the grounds of untimeliness. Cross-Complainants have not shown any prejudice. Their citation to Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 is unpersuasive; in that case the parties engaged in a substantial amount of discovery and trial was set to commence less than three months after the special motion to strike was filed. (Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th 772, 784.) Here, trial is set for November 12, 2024, and there is no indication that a substantial amount of discovery has occurred.

            The Court also rejects Cross-Complainants’ contention that the motion should be denied because of the discrepancy in the motion and memorandum concerning what causes of action are at issue. While the caption page on the notice of motion sets forth only the first, fourth, and fifth causes of action as being the subject of the special motion to strike, the notice of motion itself sets forth all the causes of action subject to the motion. The notice of motion and memorandum of points and authorities clearly indicate that the special motion to strike concerns the first, fourth, fifth, sixth, seventh, and eighth causes of action in the FAXC.

            The Court will assess the motion on its merits.

B.   Pertinent Allegations of the FAXC

The FAXC alleges that on November 1, 2021, Piesner received an email from a legal lead source detailing Cross-Defendant’s need for legal assistance with preparing and filing a 473 motion; the contact person listed in the email was Amanda Darling, Cross-Defendant’s mother. (FAXC, ¶ 12.) The email made no mention of a dissolution action or upcoming December hearing. (Id., ¶ 12.) Piesner contacted Amanda Darling on or about November 1, 2021; she misrepresented the state of his legal affairs, portraying him as a father wrongfully accused and urgently needing legal representation due to his former lawyer’s failure to attend a critical DVRO hearing. (Id., ¶ 12.) Ms. Darling’s depiction was aimed at inducing APL and Piesner to agree to represent Cross-Defendant. (Id., ¶ 13.) Ms. Darling deceived Cross-Complainants about the nature of the proceeding and what Cross-Defendant’s true legal needs were: he had a final dissolution hearing coming up in slightly over a month. (Id., ¶ 14.) Subsequently, Cross-Defendant informed Cross-Complainants that his previous attorney had been unprepared and showed up late to an important court date in October of 2021. (Id., ¶ 15.) Cross-Defendant blamed the poor outcome of the hearing on his attorney and maintained that such error affected the custody of his children. (Id., ¶¶ 16-17.)

            Cross-Defendant sought assistance with the preparation and filing of a motion under section Code of Civil Procedure 473(b) to set aside rulings related to a DVRO that restrained him from seeing his ex-wife and children. (Id., ¶ 18.) In a face-to-face meeting in November 2021, Cross-Defendant intentionally misled Piesner about the next court hearing date and misrepresented the nature of the proceeding as a status conference when in fact it was the final dissolution trial. (Id., ¶ 19.) Cross-Defendant was ordered by Judge Charmaine H. Buehner at a previous hearing to have legal representation at the final dissolution trial, a directive he was aware of but withheld from Piesner to induce him into representation. (Id., ¶ 22.)

After agreeing to represent Cross-Defendant in the DVRO case, Cross-Defendant asked whether Piesner would represent him in his dissolution action; Piesner “responded that he would only consider the case if he was able to get the court to grant him a six-month minimum preparation period and only if [Cross-Defendant] put up a $50,000 retainer.” (Id., ¶ 23.) Cross-Defendant decided that the only way to salvage their hopeless situation was to deceive an attorney into assisting them in a 473 motion. (Id., ¶ 28.) Cross-Complainants accepted Cross-Defendant’s case in reliance on Cross-Defendant’s false representations as to the nature of the upcoming hearing and that the DVRO was a separate case. (Id., ¶ 29.)

            The parties executed an Engagement Letter and Attorney-Client Fee Agreement which stated that the scope of Cross-Complainants’ representation was limited to preparation of a 473 motion and, if the motion was successful in setting aside the previous ruling on the DVRO, representation of Cross-Defendant at any subsequent DVRO hearings. (Id., ¶¶ 30-31.) Cross-Defendant was difficult to communicate with and often was erratic in his behavior. (Id., ¶ 32.)

Piesner did not discover the true nature of the December 9, 2021 hearing until a December 7, 2021 phone call with opposing counsel. (Id., ¶¶ 33-34.) After the discussion with opposing counsel, Piesner asked Cross-Defendant about the discrepancies in information provided by Cross-Defendant about the nature and date of the hearing. (Id., ¶ 35.) Cross-Defendant admitted to being aware that the hearing date information was inaccurate and that the hearing was for a final dissolution. (Id., ¶ 35.) After the hearing on December 9, 2021, Piesner attended all future dissolution hearings on behalf of Cross-Defendant through the final disposition of the case. (Id., ¶ 47.)

C.   The FAXC Does Not Arise From Cross-Defendant’s Protected Activity

The anti-SLAPP statute is designed to protect “(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).) A “public interest” must be demonstrated only with respect to the activities described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1121.) “[A] statement is made ‘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.” (Greco v. Greco (2016) 2 Cal.App.5th 810, 825.) “[S]tatements, writings, and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261, citations omitted.) “[C]ourts have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Id. at p. 1268, internal quotations omitted, citation omitted.)

“The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) “The constitutional right of petition encompasses the basic act of filing litigation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.) In assessing whether a cross-complaint arises from protected activity, a court disregards the labeling of the claim. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) A court instead “examine[s] the principal thrust or gravamen of a [cross-complainant’s] cause of action to determine whether the anti-SLAPP statute applies.” (Ibid., emphasis in original.) “If the core injury-producing conduct upon which the [cross-complainant’s] claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.” (Ibid.) “[T]he critical point is whether the [cross-complainant’s] cause of action itself was based on an act in furtherance of the [cross-defendant’s] right of petition or free speech.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 75.)

The gravamen of the FAXC is alleged misrepresentations by Cross-Defendant which induced Cross-Complainants to undertake representation him. The FAXC is premised on these alleged misstatements and omissions. This is not protected activity within the scope of CCP § 425.16(e)(2). The purported activities of Cross-Defendant are collateral and incidental to protected activity. The FAXC does not allege that Cross-Defendant made misstatements to someone having an interest in the dissolution action, as required by Greco v. Greco, supra, 2 Cal.App.5th 810, 825; Cross-Complainants were not a party to the dissolution action. And the activities of Cross-Defendant that allegedly fraudulently induced Cross-Complainants to undertake legal representation do not relate to any substantive issues in the underlying action. (Greco v Greco, supra, 2 Cal.App.5th 810, 825.)

Cross-Defendant’s citation to Neville v. Chudacoff, supra, 160 Cal.App.4th 1255 is inapposite. That case does not address the issue of alleged fraudulent conduct in retaining an attorney for legal representation. The core injury-producing conduct at issue is Cross-Defendants’ misrepresentations to Cross-Complainants about the true nature of the Underlying Action so that Cross-Complainants would provide legal representation.

Cross-Defendant has not met his burden in showing that the challenged causes of action arise from protected activity. 

Though the Court need not reach probability of success on the merits, the Court notes that Cross-Complainants provide no admissible evidence to establish a probability of prevailing on the merits. (Kreeger v. Wanland (2006) 141 Cal.App.4th 826, 831.) The declaration of Piesner in opposition to the motion contains no mention of the legal sufficiency of the challenged causes of action or Cross-Complainants’ probability of prevailing. (Piesner Decl., ¶¶ 1-7.)

Cross-Defendant’s special motion to strike is DENIED.