Judge: Richard S. Whitney, Case: 37-2023-00036013-CU-PN-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 22, 2024

05/24/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Professional Negligence SLAPP / SLAPPback Motion Hearing 37-2023-00036013-CU-PN-CTL MOORE VS FRISELLA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: MARILYN MOORE'S SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 (ANTI-SLAPP) is DENIED.

Plaintiff MARILYN MOORE ('Cross-Defendant') seeks to strike the first cause of action for breach of contract in Defendants/Cross-Complainants Lisa J. Frisella, Esq., Frisella Law, APC, and Frisella Neilson, APC's ('Cross-Complainants'). Ruling on an anti-SLAPP motion is a two-step process: ''First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.'' (Taus v. Loftus (2007) 40 Cal.4th 683, 703 [Citation omitted].) The California Supreme Court explained the anti-SLAPP procedure as follows: At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.

(Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) The Court may strike portions of a pleading, similar to a conventional motion to strike. (Id. at 394 ['Restricting anti-SLAPP motions to indivisible 'causes of action' as determined by primary right theory would be inconsistent with the Legislature's use of the term 'special motion to strike.' (§ 425.16(b)(1).) As noted, the conventional motion to strike, which long preceded the anti-SLAPP statute, is well understood as a way to challenge particular allegations.']) 'The moving SLAPP defendant may meet this burden by showing the act which forms the basis for the plaintiff's cause of action was an act that falls within one of the four categories of conduct described in subdivision (e) of section 425.16.' (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417.) CCP section 425.16(e) provides: Calendar No.: Event ID:  TENTATIVE RULINGS

3070770  60 CASE NUMBER: CASE TITLE:  MOORE VS FRISELLA [IMAGED]  37-2023-00036013-CU-PN-CTL '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).) '[C]ourts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.'' (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113 [Citation omitted].) '[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies.' (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) 'The focus of the statute is not the form of plaintiff's cause of action, but the defendant's activity that gives rise to the asserted liability.' (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 272.) 'It is settled that 'a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ' 'garden variety' ' tort or contract claim when in fact the claim is predicated on protected speech or conduct.' (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 413 [Citation omitted].) '[T]he trial court should distinguish between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity.' (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1065.) 'Assertions that are 'merely incidental' or 'collateral' are not subject to section 425.16.' (Baral, supra, 1 Cal.5th at 394 [Citation omitted].) There is no need to demonstrate an intent to chill a person's right of petition or free speech; rather, '[t]here simply is 'nothing in the statute requiring the court to engage in an inquiry as to the plaintiff's subjective motivations before it may determine [whether] the anti-SLAPP statute is applicable.'' (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 58-59.) Here, Cross-Complainants allege '[i]n filing her complaint, [Cross-Defendant] contests the entire fee paid to Cross-Complainants and the credit offered to [Cross-Defendant] by Cross-Complaints. As a result of contesting the entire fee incurred, the additional $125,956.37 remains due and owing to Cross-Complainants.' (Cross-Complaint, ¶ 22.) 'Cross-Defendant breached the express terms of the Legal Services Agreement by the conduct alleged above by failing to pay for legal services and expenses incurred by Cross-Complainants in their representation of Cross-Defendant in the Litigation.' (Cross-Complaint, ¶ 24.) 'Cross-Defendant has further attempted to repudiate the agreement with Cross-Complainants and contest the fee paid to Cross-Complainants.' (Cross-Complaint, ¶ 26.) At a minimum, Cross-Complainants include allegations that indicate they are asserting Cross-Defendant repudiated the agreement by contesting the fees by filing a complaint. However, the fact the contesting of fees took the form of the filing of a complaint does not mean the liability-inducing activity was the act of filing a complaint. The liability was in the purported repudiation of the agreement. The filing of the complaint is evidence that Cross-Defendant was repudiating the agreement. But the liability is not based on the filing of the complaint. Plaintiff could have contested the fees without filing a complaint and the result would be the same. While the Court could certainly suspect that Cross-Complainants are retaliating against Cross-Defendant by revoking their voluntary 'courtesy credit,' Cross-Complainants' motives are irrelevant. Cross-Defendant's alleged liability arises from her failure to pay legal fees, not the protected activity of filing a complaint. Cross-Defendant's alleged liability decreases to the extent she pays for her legal fees.

'[A] claim does not 'arise from' protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim.

Rather, the protected activity must 'supply elements of the challenged claim.'' (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 [Citation omitted].) Cross-Defendant fails to demonstrate the Calendar No.: Event ID:  TENTATIVE RULINGS

3070770  60 CASE NUMBER: CASE TITLE:  MOORE VS FRISELLA [IMAGED]  37-2023-00036013-CU-PN-CTL filing of the complaint supplies one of the elements of breach of contract.

The Court need not address the second prong, but the Court notes that it would conclude the litigation privilege does not apply. While '[a]ny doubt about whether the privilege applies is resolved in favor of applying it' and '[t]he litigation privilege is simply a test of connectedness or logical relationship to litigation,' this case involves a breach of contract where the policy behind the privilege would not be furthered by its application. (Optional Capital, supra, 18 Cal.App.5th at 116 [Citation omitted]; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1490-1492; Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1494-1495; Stacy & Witbeck, Inc. v. City and County of San Francisco (1996) 47 Cal.App.4th 1, 7–8.) The motion is denied.

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