Judge: Shirley K. Watkins, Case: 22STCV18731, Date: 2022-12-08 Tentative Ruling

Case Number: 22STCV18731    Hearing Date: December 8, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendants Robabeh Afsari and Nasrin Sayyad’s Special Motion to Strike’s Request for Attorneys’ Fees is DENIED.

Defendants Robabeh Afsari and Nasrin Sayyad’s Motion for Sanctions is DENIED.

            Attorney Daniel Park and Park LLP’s Request for Sanctions is DENIED.

Introduction

Defendants Robabeh Afsari and Nasrin Sayyad (collectively, Defendants) specially moved to strike per Code of Civil Procedure section 425.16 (Anti-SLAPP Motion) Plaintiff Alexander Everest’s (Plaintiff) Complaint.  Due to the voluntary dismissal of the action, the primary issue considered as to Defendants’ Anti-SLAPP Motion is the request for attorney fees against Plaintiff under Code of Civil Procedure section 425.16(c).  The caption of the notice to the Anti-SLAPP motion and the points and authorities both make a request for attorneys’ fees.  However, nowhere in the notice or the points and authorities is a dollar amount identified. 

Concurrently, Defendants moved for sanctions (Sanctions Motion) against Plaintiff and Attorney Daniel Park pursuant Code of Civil Procedure section 128.7.  Defendants’ Sanctions Motion requested $15,000.00. 

Mr. Park and Park, LLP further requested $1,600.00 in sanctions against Attorney Shalem Shem-Tov and Netzah & Shem-Tov, Inc., jointly and severally.

            Procedure

            Defendants’ Anti-SLAPP Motion and Sanctions Motion were filed on July 21, 2022.  The action was voluntarily dismissed on September 9, 2022, prior to the two motions being heard by the Court.  On September 29, 2022, Mr. Park substituted out of the case and Attorney Thomas Sands substituted in as Plaintiff’s new counsel.  By way of Defendants’ noticed motion heard on October 19, 2022, the Anti-SLAPP Motion and Sanctions Motion were placed back on the Court’s calendar.  Defendants filed and served replies to both motions on December 1, 2022.  Mr. Park, on behalf of Plaintiff and himself, served oppositions to both motions on November 23, 2022, and then filed the two oppositions on December 2, 2022. 

            Because Mr. Park no longer represented Plaintiff as of September 29, 2022, the Court does not consider Plaintiff’s Opposition to the Anti-SLAPP Motion and Plaintiff’s Opposition to the Sanctions Motion.  The Court only considered Mr. Park’s Opposition to the Sanctions Motion.

            Discussion 

            On the Anti-SLAPP Motion, Defendants argued that the action is based on a written or oral statement or writing made in connection with an issue under consideration or review by a judicial body.  (Code Civ. Proc. sec. 425.16(e).)  Plaintiff’s Complaint expressly alleged that fraudulent evidence was submitted in an underlying action, Afsari v. Everest (Los Angeles County Superior Court case no. LC104978,) which resulted in a wrongful judgment against Plaintiff. (Compl. pars. 11 and 19.)  This misconduct is alleged to be the grounds for the first cause of action (COA) for fraud, the two COAs for interference, and the fourth COA for Unfair Business Practice violations.  (Compl. pars. 26, 31, and 35.)  Because the allegations in the Complaint show that the action is grounded on statements made within an underlying civil action, there is sufficient showing that the instant action arises from protected activity.  Plaintiff has not presented argument to oppose argument as to the first prong of Anti-SLAPP.  Even if the Court were to consider the opposition filed by Mr. Park, it is noted that Mr. Park made no argument as to the first prong of Anti-SLAPP.  Because Defendants met their burden on the first prong, the burden transfers to Plaintiff to show a probability of prevailing on the merits with admissible evidence.  Without an opposition, Plaintiff did not meet his burden.  Again, even if the Court were to consider Mr. Park’s opposition, there is no admissible evidence submitted with the Opposition.  Defendants would have been the prevailing party on the merits of the Anti-SLAPP motion but for Plaintiff’s voluntary dismissal prior to the hearing on the Anti-SLAPP Motion. 

For Anti-SLAPP attorneys’ fees, there are three ways to request attorneys’ fees: request fees within the Anti-SLAPP motion; make a noticed motion for fees after the ruling on the Anti-SLAPP motion; or include the fee request in the cost bill.  (Catlin Insurance Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 773;  Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992; American Humane Association v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103.)  “[I]n order to obtain a ruling on the merits of an anti-SLAPP motion that is mooted by a voluntary dismissal, a party who believes it was the victim of a SLAPP suit must still formally request an award of attorney fees. If no motion seeking fee recovery was filed concurrently with the fees motion, a request for fees must be made by motion or by cost memorandum after the dismissal. We do not think that is too much to ask of all anti-SLAPP movants. All we hold here is that, before seeking fee recovery, a litigant whose anti-SLAPP motion has been mooted is entitled to no greater guidance from the court than any other party who must weigh the advantages and disadvantages of seeking relief for a perceived wrong.”  [Bolding added.]  (Catlin Insurance Co., Inc. v. Danko Meredith Law Firm, Inc., supra, 73 Cal.App.5th at p. 782.) 

Defendants’ request for attorneys’ fees in the Anti-SLAPP Motion failed to provide proper notice and opportunity to be heard because Defendants did not identify a dollar amount in the notice to the motion or within the motion.  Further, Defendants’ Anti-SLAPP Motion failed to submit any admissible evidence or a declaration from counsel to support the request for attorneys’ fees.  Without an identified amount for fees supported by admissible evidence and without proper notice and opportunity to be heard, Defendants’ request for attorneys’ fees is unsupported and DENIED.

            On the Sanctions Motion, Defendants argued that the filing of the instant action was filed for an improper purpose and lacked legal merit.  (Code Civ. Proc. sec. 128.7(b)(1) and (2).)  The Sanctions Motion must show Defendants’ compliance with the statutory 21-day safe harbor rule.  (Code Civ. Proc. sec. 128.7(f).)  Defendants, however, failed to submit admissible evidence showing compliance with the safe harbor rule.  Attorney Shalem Shem-Tov’s declaration, which attest to compliance, is not signed.  On this defect, there is grounds to deny the motion for sanctions.

            If the Court were to consider the merits of the Sanctions Motion, then Defendants argued that the instant action did not have a proper purpose or legal merit because it was barred by res judicata, absolute privilege, or subject to the concurrent Anti-SLAPP Motion.  “To avoid sanctions under section 128.7, “the issue is not merely whether the party would prevail on the underlying factual or legal argument,” but rather whether any reasonable attorney would agree that the claim is totally and completely without merit. [Internal citation omitted.] Hence, the evidentiary burden to escape sanctions under section 128.7 is light.”  (Kumar v. Ramsey (2021) 71 Cal.App.5^th 1110, 1126.)             

            To determine whether the filing of the action lacked proper purpose, it must be shown that the “primary” purpose is to harass or cause needless delay or expense.  To determine whether the filing lacked legal merit, the legal contentions need to be supported by existing law.  (Code Civ. Proc. sec. 128.7(b)(2).)

Plaintiff provided reasonable grounds for filing the instant action by asserting that the underlying action improperly awarded punitive damages without Plaintiff’s financial condition.  (Compl. pars. 1, 2, and 4.)  Plaintiff further alleged in the instant action that there was a lack of notice of the trial date and the judgment; there was a lack of pretrial documents and Plaintiff was unavailable during the trial.  (Compl. par. 10.)  These allegations show that the action was not filed to harass or delay.  The Court notes, however, that the instant action only alleged tort COAs.  The Complaint did not allege a COA to collaterally attack the underlying judgment.  There is a colorable argument that the tort claims alleged in the instant action lacked legal merit.  However, the factual allegations also support a claim to collaterally attack the underlying judgment.  However, the Complaint did not expressly allege the proper COA that was supported by these facts.  “A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit” (brackets in original; internal quotes omitted.)”  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.)  The Court finds that any reasonable attorney would find the allegations in the Complaint to support a COA to collaterally attack the underlying judgment even though such claim was not expressly alleged in the Complaint.  The facts alleged show that the Complaint is not completely without merit.  Because the allegations are not completely without merit, there is insufficient showing that the instant action was filed without legal merit. 

Despite Defendants’ arguments as to res judicata, there is insufficient showing that the theory applies.  The instant action alleges tort claims for alleged fraud and interference in the underlying action, whereas the underlying action involved contract and fraud claims due to allegations of unfulfilled services.  The fact that the instant action alleged tort claims based upon statements made within the underlying action does not make it the same claim as alleged in the underlying action.  Because the instant action and the underlying action do not involve the same claims, the res judicata argument is unpersuasive. 

            As to Defendants’ defenses based upon privilege and the concurrent Anti-SLAPP motion, the Court notes that these defenses could show (or did show, as to the Anti-SLAPP Motion) that Plaintiff may not prevail on the underlying factual or legal argument.  However, this is not the standard for the Sanctions Motion.  As stated above, the standard is whether any reasonable attorney would agree that the claim is totally and completely without merit.  As reviewed above, there is sufficient showing that a reasonable attorney would agree that the facts alleged in the Complaint show grounds for a claim and the Complaint would have some merit.

            The Sanctions Motion is DENIED.

            Mr. Park and Park, LLP (collectively, Park) requested sanctions under Code of Civil Procedure section 128.7 because the instant Sanctions Motion is argued to be filed for an improper purpose.  However, Park’s request is conclusory and lacks argument or application of law with facts.  A simple request for sanctions is insufficient to show improper purpose under Code of Civil Procedure section 128.7(g). 

            Park’s request for sanctions is DENIED. 

            IT IS SO ORDERED, ____________________ TO GIVE NOTICE.