Judge: Michael J. Strickroth, Case: 2023-01315995, Date: 2023-08-28 Tentative Ruling
Motion for Anti-SLAPP
Defendant Anil Patel’s Special Motion to Strike is DENIED.
Defendant’s Evidentiary Objections are SUSTAINED on the basis of lack of personal knowledge/speculation.
Defendant filed a declaration in support of his Reply. Generally, the Court does not consider evidence on Reply and Plaintiffs filed a proper objection on this basis. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.) Plaintiffs also filed a Sur-Reply responding to Defendant’s improper evidence. Given that Plaintiffs have had an opportunity to respond, the Court considers the Declaration on Reply and Plaintiffs’ Sur-Reply.
A. Legal Authority
Code of Civil Procedure § 425.16 provides for a “special motion to strike” when a plaintiff asserts claims 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.” Code Civ. Proc., § 425.16(b)(1). Such claims must be stricken “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Id.)
Ruling on an Anti-SLAPP motion involves a two-step procedure. First, the “moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” Baral v. Schnitt (2016) 1 Cal.5th 376, 396. At this stage, the defendant must make a “threshold showing” that the challenged claims arise from protected activity. Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056. Second, if the defendant makes such a showing, the “burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” Baral, supra, at 96. Without resolving evidentiary conflicts, the court determines “whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” Id.
Code Civ. Proc. § 425.16(e) defines the categories of acts that are in “‘furtherance of a person’s right of petition or free speech.’” Those categories include “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,” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest.” Code Civ. Proc., § 425.16(e)(3) & (4). They also include any statement “made in connection with an issue or consideration or review by a ... judicial body.” Code Civ. Proc., § 425.16(e)(2).
B. Merits
Under the first step of the Anti-SLAPP analysis, the moving party bears the burden of showing that the relief sought is based on allegations arising from protected activity. Murray v. Tran (2020) 55 Cal.App.5th 10, 25. “A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e).” Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.
These categories are: “(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; (4) or 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).
A public issue includes “conduct that could directly affect a large number of people beyond the direct participants” and a “topic of widespread, public interest.” Rivero v. American Federation of State, County and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913, 924.
Here, Plaintiffs allege the following causes of action in their First Amended Complaint: (1) Civil Extortion; (2) Intentional Infliction of Emotional Distress; and (3) Declaratory Relief.
Defendant contends Plaintiff’s claims arise from protected activities in that they are based on proceedings Defendant instituted before the Division of Labor Standards Enforcement (DLSE), and Defendant’s alleged false and/or frivolous statements about his employment by Plaintiffs.
Plaintiffs contend the claims arise out of extortionate statements made by Defendant which are illegal as a matter of law. The First Amended Complaint states: “The Mowjis bring this action against Defendant for civil extortion in violation of California law, intentional infliction of emotional distress, and for related declaratory relief.” (FAC, ¶ 1.) The FAC further alleges: “Defendant crossed the legal line. Specifically, Defendant unlawfully threatened the Mowjis with criminal complaints, police action, and prison time for purported civil wrongs that were long beyond the statute of limitations. Defendant made threats of criminal action to “shake down” the Mowjis for hundreds of thousands of dollars. Defendant knows the Mowjis are pillars of the community and threatened criminal action because the risk of reputational and emotional harm would induce them into giving up money to which Defendant had no legal right. Defendant’s conduct is textbook civil extortion under California law. E.g., Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1422. That is because Defendant has used threats of criminal prosecution and prison to extract payment from the Mowjis. After the Mowjis fought back, Defendant responded by filing a frivolous administrative action against them individually claiming he is a Lemoore employee in 2021 and is owed over $110,000.” (FAC, ¶ 1.)
Plaintiffs cite Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 (Mendoza), and Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) 74 Cal.App.5th 506 (Falcon) in support of their contention that Defendant’s speech is not protected by the Anti-SLAPP statute.
In Flatley, the California Supreme Court held “a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff’s complaint.” Id. at p. 305. Where “either 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 p. 320. In Flatley a lawyer’s letters and telephone calls to the plaintiff “constituted criminal extortion as a matter of law” and were unprotected. Id. at pp. 305, 332. The evidence of the defendant’s communications was uncontroverted. Id. at p. 329 And the court emphasized its conclusion that the defendant’s communications constituted criminal extortion as a matter of law was “based on the specific and extreme circumstances of [that] case.” Id. at p. 332, fn. 16.
Defendant contends in his Reply that the holding of Flatley is narrow and based on the extreme circumstances of the case. But this ignores Mendoza and Falcon, cited by Plaintiff.
In Mendoza, the Court of Appeal held: “We do not read Flatley to mean the anti-SLAPP statute applies to some litigation communications which satisfy the criteria for criminal extortion if such communications are not particularly extreme or egregious. The rule must be a bright line rule. The anti-SLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law. (Flatley, supra, 39 Cal.4th at p. 305, 46 Cal.Rptr.3d 606, 139 P.3d 2.)” Mendoza, supra, at 807; emphasis in original. The Court of Appeal viewed the evidence as uncontroverted because the defendant did not dispute that he sent the letter. Id. at 808, fn. 3.
The Court reasoned: “Regardless of whether the threat in Hamzeh's demand letter may be characterized as particularly extreme or egregious, it still constitutes criminal extortion as a matter of law. As the Supreme Court explained in Flatley: ‘Extortion is the threat to accuse the victim of a crime or “expose, or impute to him ... any deformity, disgrace or crime” (Pen.Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made.” (39 Cal.4th at p. 332, fn. 16, 46 Cal.Rptr.3d 606, 139 P.3d 2.) Hamzeh threatened to report Mendoza's ‘substantial fraud’ to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service, the Better Business Bureau and Mendoza's customers and vendors if Mendoza did not pay ‘damages exceeding $75,000.’” Id. at 807; emphasis supplied.
The Court also noted it did not matter whether “Mendoza committed any crime or wrongdoing or owed Chow money, Hamzeh's threat to report criminal conduct to enforcement agencies and to Mendoza's customers and vendors, coupled with a demand for money, constitutes ‘criminal extortion as a matter of law, ….’” Id. at 806.
Defendant claims the Court in Falcon agreed with Flatley’s limited holding and stated that Flatley: “should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion.” Falcon, supra, at 523.
The Court of Appeal, Fourth District, in Falcon, goes on to read Flatley’s holding considerably broader. “In Flatley, the Supreme Court created an addendum to the standard anti-SLAPP analysis. … The Supreme Court affirmed the judgment of the Court of Appeal: ‘We conclude that, consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint.’ (Flatley, supra, 39 Cal.4th at p. 305, 46 Cal.Rptr.3d 606, 139 P.3d 2.)” Id., at 519.
The Falcon Court also recognized that attempted extortion is illegal: “‘Extortion is the obtaining of property ... from another, with his or her consent ... induced by a wrongful use of force or fear.’ (Pen. Code, § 518, subd. (a).) Fear, for purposes of extortion ‘may be induced by a threat of any of the following: [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person. [¶] 2. To accuse the individual threatened ... of a crime. [¶] 3. To expose, or to impute to him ... a deformity, disgrace or crime. [¶] 4. To expose a secret affecting him, her, or them. [¶] 5. To report his, her, or their immigration status or suspected immigration status.’ (Pen. Code, § 519, italics added; Flatley, supra, 39 Cal.4th at p. 326, 46 Cal.Rptr.3d 606, 139 P.3d 2.)
Attempted extortion is also a crime. (Pen. Code, § 524; see People v. Umana (2006) 138 Cal.App.4th 625, 41 Cal.Rptr.3d 573 (Umana) [affirming conviction for attempted extortion under Penal Code section 524].)’ Id. at 519; emphasis supplied.
This is evidenced in the Court’s holding: “As we have observed, Mousavi was thereby attempting to obtain the ‘property ... from another ... by a wrongful use of force or fear.’ Such conduct falls squarely within the statutory definition of extortion. Consequently, Mousavi's statements which linked Falcon's failure to accept her settlement demands with her potential revelation of its illegal conduct to Harvest do not qualify for protection under the anti-SLAPP law.” Id. at 519.
The Falcon Court further made clear that “it is the fact that the threat is directly linked to the
monetary demand that is the critical factor. “‘It is the means employed [to
obtain the money] which the law denounces, and though the purpose may be to collect a just indebtedness
arising from and created by the criminal act for which the threat is to
prosecute the wrongdoer, it is nevertheless within the statutory inhibition.’”
(Flatley, supra,
39 Cal.4th
at p. 326, 46 Cal.Rptr.3d 606, 139 P.3d 2, italics added.)” Id. at
521; emphasis in original.
1. First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress
The First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress clearly arise out of Defendant’s threats of police reports, criminal action, and prison, on 5-2-22. (FAC, ¶¶ 12, 16, and 22.)
Specifically, the 5/2/22 letter from Defendant stated: “Criminal lawsuit for recovering funds and file with Federal and State agency for Larceny, Embezzlement, Misappropriation of funds. Penalty and prison in addition to recovering funds. Even if I lose civil case I will file this case and prove that it is theft and get my money. ¶ I don’t have to share with you what I discussed with lawyer but due to relation and respectso [sic] asked lawyer to give me some time to move forward. I asked him that I want to give you a time for a second thought. I do not want to be that harsh due to the relation but you will not leave me any choice if we do not come to a fair settlement. It will become really messy if we go to litigation and drag all partners and family to the court. I respect Ba and she will suffer more than anybody else so I thought I give you a time to rethink. I got heart attack and you get prison as a bonus from mess.” (Emphasis supplied.)
The foregoing is sufficient to establish Defendant attempted to extort Plaintiffs as a matter of law. Defendant is threatening “filing” criminal action unless the parties come to a “fair settlement.”
Defendant contends the circumstances here are controverted, in contrast to Flatley. Defendant contends he does not concede nor does the evidence conclusively establish his assertedly protected speech was criminal extortion as a matter of law. However, Defendant does not dispute he sent the 5/2/22 letter. This is enough based on Mendoza.
Additionally, in Defendant’s declaration in support of the Reply, he states: “After my May 2, 2022, letter to Pankaj …” which is admitting to sending the letter at issue. (Declaration of Defendant Anil Patel, ¶ 6.)
Defendant contends the alleged conduct cannot be extortion because Defendant did not accuse Plaintiffs of a crime or threaten to expose a crime. But the letter specifically states embezzlement and larceny, which clearly are crimes.
Falcon, quoting Flatley, made clear “‘[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.” (People v. Sanders (1922) 188 Cal. 744, at pp. 749-750, 207 P. 380; cited with approval in Flatley, supra, 39 Cal.4th at p. 327, 46 Cal.Rptr.3d 606, 139 P.3d 2.)” Falcon, supra, at 520-521.
Based on the foregoing, the 5/2/22 letter is sufficient to accuse or threaten
to expose Plaintiffs of criminal acts.
Defendant also contends he only complained to Plaintiffs about the substance of the actual disputed issues – that he was owed money by Plaintiffs that he believed was wrongfully taken or withheld.
Mendoza clears this up: “But when the threat to report a crime is
coupled with a demand for money, the threat becomes illegal, regardless of
whether the victim in fact owed the money demanded. (Flatley, supra,
39 Cal.4th at pp. 326–327, 46 Cal.Rptr.3d 606, 139 P.3d 2.) “‘The law does
not contemplate the use of criminal process as a means of collecting a debt.’
[Citations.]” (Ibid.)”
Mendoza, supra, at 805.
Falcon reiterated that a
legitimate motive to expose information does not save the extortionate
statement: “[T]he fact Mousavi may have believed she had a
legitimate reason to
forward that information along to Harvest is a separate issue from
whether she had a legitimate reason to threaten Falcon that she would do so if her
settlement demand was rejected. The extortion arises out of the threat rather
than the follow through.” Falcon, supra, at 520-522. Malin
v. Singer (2013) 217 Cal.App.4th 1283, 1294 states: “In many blackmail
cases the threat is to do something in itself perfectly legal, but that
threat nevertheless becomes illegal when coupled with a demand for money.”
Based on the above, Defendant’s 5/2/22 letter is the basis of the First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress and arise out of extortionate statements which are illegal as a matter of law. Thus, Defendant has failed to meet his burden to establish that the statements are not protected conduct under Code Civ. Proc. § 425.16. Therefore, the analysis stops here, at the first prong, for the First and Second Causes of Action.
Accordingly, the Motion is DENIED as to First Cause of Action for Civil Extortion and Second Cause of Action for Intentional Infliction of Emotional Distress.
2. Third Cause of Action for Declaratory Relief
The Court now turns to whether the Third Cause of Action for Declaratory Relief arises from protected conduct.
“To determine whether a challenged allegation or claim ‘arises from’ protected activity we must determine whether protected activity was the alleged injury-producing act forming the basis for the claim. (Park, supra, 2 Cal.5th at pp. 1062-1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) ‘“The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) ....”’ (Id. at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) ¶ ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ (Park, supra, 2 Cal.5th at p. 1063, 217 Cal.Rptr.3d 130, 393 P.3d 905.) In so doing, the courts should be ‘attuned to and ... respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.’ (Id. at p. 1064, 217 Cal.Rptr.3d 130, 393 P.3d 905.)” Manlin v. Milner (2022) 82 Cal. App. 5th 1004, 1019.
The Third Cause of Action for Declaratory Relief seeks the following declarations: “Pursuant to California Code of Civil Procedure sections 1060 et seq., Plaintiffs seek a declaration that Plaintiffs did not commit a legal wrong in connection with the Purchase Price, Compensatory, and Tuscany claims. In addition, Plaintiffs seek a declaration that Defendant was not, nor has he ever been, an employee of Lemoore and that he did not provide the services he claim he provided in 2020 or 2021.” (FAC, ¶ 30.)
The allegations regarding Defendant claiming to be an employee are: (1) “That is when Defendant started sending threating and harassing emails and letters that were designed to coerce, intimidate, and threaten the Mowjis with the intent to obtain money and property to which Defendant had no legal right. In these letters, Defendant claimed he did not receive enough money from the 2016 membership interest sale, that certain investments made by Lemoore in 2007 were improper, and that Defendant was not paid for clerical services between 2002 and 2012. … After the Mowjis fought back, Defendant responded by filing a frivolous administrative action against them individually claiming he is a Lemoore employee in 2021 and is owed over $110,000. Accordingly, the Mowjis file this action to right Defendant’s wrongs.” (FAC, ¶ 1.); (2) “Defendant took issue with the following: (1) the above-referenced purchase of Defendant’s membership interests in Lemoore Hospitality in 2016 (the “Purchase Price claim”); (2) alleged lack of compensation for Defendant’s bookkeeping work from 2002 to 2011 (the “Compensation claim”); and (3) Dr. Mowji’s purported authorization of Lemoore Hospitality’s payments relating to the Tuscany Investments in 2007 (the “Tuscany claim”).” (FAC, ¶ 12.); (3) “In or around June 2022, Plaintiffs informed Defendant that his 2022 communications constituted unlawful extortion and that the civil wrongs he complained about were factually meritless and, in any event, time barred. Defendant responded by filing frivolous actions before the California’s Division of Labor Standards Enforcement (the “DLSE Actions”) claiming that he was a Lemoore employee from January 1, 2020, to December 31, 2020 and that he was entitled to thousands of dollars. He then changed his story and claimed he was an employee between February 3 and August 21, 2021 and demanded over $110,000. Defendant’s claim that he was an employee in 2020 or 2021 are false. He made it up. Likewise, Defendant’s claim that he provided hundreds of hours of services to Lemoore is false in 2020 or 2021. He did not provide such services. At least one of the frivolous DLSE Actions were terminated in favor of Plaintiffs because Defendant voluntarily dismissed the claim.” (FAC, ¶ 13.)
Plaintiffs seek a declaration regarding whether Defendant was ever an employee, and the services he did not provide in 2020 or 2021. This stems from the claims Defendant made in the action brought to the DLSE, and not the alleged threats to settle which the court determined are extortion.
Defendant contends Plaintiffs’ claims arise from protected speech and protected petitioning activity that (1) was made in furtherance of Mr. Patel’s right to free speech and right to petition the government that is protected under both the California Constitution and the First Amendment to the Constitution of the United States of America and (2) relate to matters of public interest or public concern – a violation of California Labor laws by an employer.
Here, the request to obtain a declaration regarding whether Defendant was in an employee in 2020 or 2021 arises out of protected conduct. Defendant has filed his DLSE action alleging he was an employee of Lenmore in 2020 or 2021 and, in response, Plaintiffs are requesting a declaration that he is not an employee.
Thus, Defendant has met his burden under the initial prong that the Declaratory Relief cause of action at least partially arises out of protected activity. Therefore, the burden shifts to Plaintiff to show a probability of prevailing on the merits.
Should the Court determine that the evidence raises a dispute about “the legitimacy of the defendant’s conduct, [the anti-SLAPP special motion to strike] cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s [second step] burden to show a probability of prevailing on the merits.” Flatley, supra, at 316; Douillard v. Smith (1945) 70 Cal.App.2d 522, 527 [“ ‘ “If there be two inferences equally reasonable and equally susceptible of being drawn from the proved facts, the one favoring fair dealing and the other favoring corrupt practice, it is the express duty of the court or jury to draw the inference favorable to fair dealing,” ’ ” quoting Ryder v. Bamberger (1916) 172 Cal. 791, 799–800.].
The California Supreme Court has described the second prong of the anti-SLAPP analysis “‘as a “summary-judgment-like procedure.” ‘” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) “The plaintiff need not prove her case to the court [citation]; the bar sits lower, at a demonstration of ‘minimal merit’ [citation]. At this stage, ‘ “[t]he 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.” ‘” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891. We must draw all reasonable inferences from plaintiff’s evidence and may not conclude the trial court should have granted the motion simply because conflicting inferences may be drawn from a defendant’s evidence. Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 462.
“[W]e conclude it is appropriate, and most consistent with the history and purpose of the suffer or permit to work standard in California's wage orders, to interpret that standard as: (1) placing the burden on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the wage order's coverage;24 and (2) requiring the hiring entity, in order to meet this burden, to establish each of the three factors embodied in the ABC test—namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. (Accord Hargrove, supra, 106 A.3d at pp. 463-46425; see also Weil, The Fissured Workplace (2014) pp. 204-205 [recommending adoption of the ABC test ]; ABC on the Books, supra, 18 U.Pa. J.L. & Soc. Change at pp. 61, 82-84, 101-10226.)” Dynamex Operations W. v. Superior Court, (2018) 4 Cal.5th 903.
Plaintiff Dr. Mowji Panjaj, M.D. provides the following evidence: “As to Defendant’s employment, he is not, nor was he ever, an employee of Lemoore. He was never issued a W2. He was free from control and direction of Lemoore per agreement and in practice. The work Defendant did was outside the usual course of Lemoore’s business which is hospitality. Based on Defendant’s claim of extensive experience, I understood he customarily engaged in providing similar type of discrete services to other businesses and/or individuals.” (Declaration of Dr. Mowji Panjaj, M.D., ¶ 13.) The foregoing is sufficient to establish Defendant was not an employee of Lenmore.
Plaintiff does not submit any evidence that would defeat Plaintiff’s claim as a matter of law. On Reply, Defendant only submits the Complaint he filed with the DLSE as Ex. 1 to his Declaration. This does not conclusively establish he was an employee and does not appear to be signed under penalty of perjury.
Lastly, Defendant contends the litigation privilege applies to Defendant’s communications. There is no contention the litigation privilege applies to the DLSE action nor would the litigation privilege apply. Thus, the litigation privilege does not bar the declaratory relief cause of action.
Based on the foregoing, Plaintiff has established a probability of prevailing on the merits of the Third Cause of Action for Declaratory Relief.
C. Fees
Code of Civil Procedure § 425.16 states: “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
Here, Defendant was not the prevailing party and the Motion was not frivolous. Thus, the Court does not award attorney fees.
Based on the foregoing, the Court DENIES Defendant Anil Patel’s Special Motion to Strike.
Plaintiff to give notice.