Judge Robert B. Broadbelt, Case Number: 23STCV07526, Date: 2024-01-17 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV07526, Date: 2024-01-17 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on defendant David W. Allor’s evidentiary objections, filed on January 9, 2024, as follows:

The court sustains plaintiff Pro Legal Funding, LLC’s evidentiary objections, filed on January 10, 2024, to the evidence submitted in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers”].)

The court (1) grants plaintiff Pro Legal Funding, LLC’s request for judicial notice as to Exhibits A-C, but does not take judicial notice of the contents therein, and (2) denies plaintiff Pro Legal Funding, LLC’s request that the court judicially notice the facts set forth in paragraphs 4-17. (Evid. Code, § 452, subd. (d); Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein”].)

Defendant David Allor (“Defendant”) moves the court for an order striking each cause of action alleged by plaintiff Pro Legal Funding, LLC (“Plaintiff”) in its Complaint[1] or, alternatively, the second through 10th causes of action, pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute.

“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 p. 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.”¿ (Ibid. [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 pp. 384-385 [citations omitted].)¿

Courts analyze special motions to strike under a two-step approach.¿ “Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.”¿ (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.)¿ “[T]he statutory phrase ‘cause of action…arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.¿ [Citation.]¿ In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.”¿ (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)¿ The moving defendant will meet this burden by demonstrating that the plaintiff’s claim fits one of the categories outlined in Code of Civil Procedure section 425.16, subdivision (e).¿ (Ibid.)¿¿

The protected acts in furtherance of a defendant’s right of petition or free speech include:¿

1. Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; or¿

2. Any written or oral statement 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; or¿

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 free speech in connection with a public issue or an issue of public interest.¿¿

The court finds that Defendant has not met his burden to show that the second through 10th causes of action arise from protected activity.

Defendant asserts that, because “the gravamen of all nine causes of action is [Defendant’s] legal counsel regarding the distribution of judgment proceeds and how to address [P]laintiff’s illegal contracts[,]” all of Plaintiff’s causes of action arise from protected activity. (Mot., p. 7:16-18.) Although Defendant does not cite a specific provision of Code of Civil Procedure section 425.16, it appears that Defendant contends that each of the nine causes of action arise from (1) statements made before a legislative, executive, or judicial proceeding, or (2) statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body. (Code Civ. Proc., § 425.16, subds. (e)(1), (e)(2); Mot., p. 12:3-7 [citing authority concerning subdivisions (e)(1) and (e)(2) of section 425.16].)

The court acknowledges that activity protected by Code of Civil Procedure section 425.16 includes (1) “the filing of lawsuits, and statements and pleadings made in or in preparation for civil litigation” as well as (2) “‘communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context[.]” (ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046; Contreras v. Dowling (2016) 5 Cal.App.5th 394, 409; Code Civ. Proc., § 425.16, subds. (e)(1), (e)(2).) However, Defendant has not sufficiently (1) identified the wrongful acts that form the basis for each cause of action, or (2) explained how those alleged acts constitute protected activity. Defendant therefore has not shown that each of the nine causes of action arises from the acts performed by Defendant as part of his legal representation of nonmoving defendant Derek Alonso (“Alonso”).

As set forth above, at the first step, “[t]he defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [emphasis added].) In his motion, Defendant has only generally argued that the “gravamen” of the claims alleged against him are based on his legal counsel to Alonso and has not pointed to any allegations in the Complaint that support this position.

The court acknowledges that some of the claims set forth in the Complaint may implicate protected activity. Specifically, Plaintiff has alleged that Defendant induced Alonso to breach the subject agreements by “encouraging [Alonso] to not satisfy the liens . . . .” (Compl., ¶ 35.) Although Plaintiff does not specifically allege that Defendant encouraged Alonso not to satisfy the liens in the course of his legal representation of Alonso, such a claim may be interpreted to arise from Defendant’s provision of such legal advice to Alonso. (Ibid.; see Compl., ¶ 12 [alleging that Defendant was substituted in as counsel of record for Alonso].) However, this cause of action is also based on the allegation that Defendant induced Alonso to breach the subject agreements by “sending funds to [Alonso] without satisfying pending liens . . . .” (Compl., ¶ 35.) Defendant has not presented sufficient argument explaining how this wrongful act—the distribution of funds to Alonso—constitutes protected activity, and the court finds that, as alleged, it does not.

Similarly, the sixth cause of action for conversion does not appear to arise from Defendant’s provision of legal advice to Alonso, and instead arises from Defendant’s conduct in failing to disburse the funds to Plaintiff. (Compl., ¶ 66.) The 10th cause of action for breach of implied-in-fact contract also appears to arise from unprotected activity. In connection with that cause of action, Plaintiff has alleged that (1) an implied-in-fact contract was established by the conduct of both Plaintiff and Defendant, and (2) Defendant breached that contract by failing to protect and remit to Plaintiff the funds owed to it. (Compl., ¶¶ 92-95, 100-102.) Thus, this cause of action appears to arise from Defendant’s breach of his contractual obligations to Plaintiff, independent of any claim arising from legal advice given to Alonso by Defendant.

“Where a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity.” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1108.) As set forth above, Defendant did not identify specific claims for relief alleged in Plaintiff’s Complaint and instead generally argued that the “gravamen” of the Complaint arose from protected activity. This is insufficient. (Ibid.) Moreover, the court has concluded that some of the claims for relief—based on Defendant’s conduct in failing to disburse the funds due and owing to Plaintiff rather than any “encouragement” provided as legal advice to Alonso—arise from unprotected activity.

“If [Defendant] want[ed] the trial court to take a surgical approach, whether in the alternative or not, [Defendant] must [have] propose[d] where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’” (Nazari, supra, 93 Cal.App.5th at p. 1109.) Defendant did not take such an approach.

Thus, the court finds that Defendant has not met his burden to show that Plaintiff’s second through 10th causes of action arise from protected activity and therefore denies Defendant’s motion. (Code Civ. Proc., § 425.16, subd. (b)(1).)

The court denies Defendant’s request for attorney’s fees because Defendant is not the prevailing party on this motion. (Code Civ. Proc., § 425.16, subd. (c)(1).)

The court orders plaintiff Pro Legal Funding, LLC to give notice of this ruling.

[1] To the extent that Defendant requests that the court grant the special motion to strike as to the first cause of action, the court denies that request because that cause of action is alleged only against nonmoving defendant Derek Alonso and therefore Defendant does not have standing to strike that cause of action.

pro legal funding, llc ; Plaintiff, vs. derek alonso , et al.; Defendants.	Case No.:	23STCV07526

	Hearing Date:	January 17, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s special motion to strike complaint