Judge: Stephanie M. Bowick, Case: 24STCV31329, Date: 2025-03-13 Tentative Ruling
Case Number: 24STCV31329 Hearing Date: March 13, 2025 Dept: 19
3/13/2025
Dept. 19
Hon. Rolf Treu, Judge
presiding
SOUTHLAND ROOFING, INC. v. HEYDORFF CONSTRUCTION SERVICES,
INC. (24STCV31329)
Counsel for Defendants/moving parties: LARSON &
GASTON, LLP; JOHN B. LARSON (ZELMS ERLICH LENKOV)
Counsel for Plaintiff/opposing party: SOUTHLAND
ROOFING, INC. (WEST BOUTIQUE LAW, PC)
MOTION TO STRIKE
COMPLAINT (ANTI-SLAPP) (filed
2/3/2025)
TENTATIVE RULING
Defendants’ Motion to Strike Complaint is GRANTED.
The Court strikes the Complaint, without leave to amend, as
to Defendants LARSON & GASTON, LLP and JOHN B. LARSON, only.
I.
BACKGROUND
On November 26, 2024, plaintiff (“SOUTHLAND ROOFING, INC.”)
filed this action against defendants HEYDORF CONSTRUCTION SERVICES, INC.;
LARSON & GASTON, LLP; and JOHN B. LARSON (“Defendants”).
The Complaint asserts the following causes of action:
1. BREACH OF CONTRACT; 2. BREACH OF
COVENANT OF GOOD FAITH AND FAIR DEALING; 3. ABUSE OF PROCESS; 4. VIOLATION OF
PROMPT PAYMENT STATUTE (CIVIL CODE 8814); 5. FRAUDULENT REPRESENTATION; 6.
NEGLIGENT REPRESENTATION; 7. GOODS AND SERVICES RENDERED; 8. UNJUST ENRICHMENT;
9. QUANTUM MERUIT; and 10. SLANDER/LIBEL.
The
Complaint alleges the following:
Defendant HEYDORFF
CONSTRUCTION SERVICES, INC. (“HEYDORFF”), as a contractor, breached a subcontract
with Plaintiff, a roofing contractor, by failing to pay the agreed amounts owed
under the contract, including remobilization fees of $17,500, and other sums
due. Also, HEYDORFF breached a subcontract by filing the Petition for Release
of Mechanics’ Lien before agreed mediation. (Complaint, ¶¶ 34-35.)
Additionally,
Defendants, LARSON & GASTON, LLP, JOHN B. LARSON, ESQ, committed abuse of
process, “by filing legal actions despite the clear requirement for mediation
in the Subcontract, and by attempting to coerce PLAINTIFF into releasing its
lien without payment of the necessary fees.” (Complaint, ¶ 51.)
A. The Parties’ Arguments
On February 3, 2025, Plaintiff filed a SLAPP motion to
strike, arguing:
·
The Court
should strike the Third Cause of Action and related allegations.
·
The Abuse of
Process claim against the moving defendants is based upon acts that Defendants
undertook in furtherance of their constitutional rights of petition.
·
Specifically,
the Complaint goes against moving defendants’ statements and conduct in
connection with the attorneys’ filing of a Petition for Release of Mechanic’s
Lien and Request for Attorneys’ Fees against Plaintiff in the underlying
action.
·
The sole cause
of action against moving defendants (Abuse of Process) is barred by the
litigation privilege, Civil Code section 47, subdivision (b).
·
Inaccurately, Plaintiff
alleges that on or around July 31, 2024, Plaintiff’s counsel proposed that
Plaintiff release the mechanic’s lien in exchange for Defendant Heydorff’s
removal of the Petition and that Defendants agreed to this (Complaint, ¶ 53). Actually,
moving defendants did not agree to withdraw the petition’s request for
attorney’s fees but instead kept a legitimate motion request for statutory
attorneys’ fees on calendar for ruling.
On 2/28/25, Plaintiff filed an opposition, arguing:
·
The Complaint is not based upon any protected
filing of the petition, but instead upon:
1. Deceiving Southland with an insincere assurance that
they would withdraw their Petition in exchange for a Release of Mechanic’s
Lien. (Compl., ¶ 53);
2. Reneging on that assurance following Southland’s release
of its lien, an action undertaken in faithful reliance upon Defendants’
expressed commitment. (Compl., ¶¶ 54-55);
3. Taking advantage of Plaintiff’s counsel’s grief over a
loved one’s death to chase fees (Compl., ¶¶ 54-56);
4. Attending a hearing they had previously consented to
remove from the court’s calendar, doing so after Southland relinquished its
lien and with full awareness that Southland’s counsel was absent, having
depended upon Defendants’ misleading representation
5. Twisting
the legal process for their own gain (Compl., ¶ 58).
(Motion, p. 2.)
On 3/6/25, moving defendants filed a reply, arguing:
·
Within the
scope of the SLAPP statute, the Complaint actually pleads that defendants “‘engaged
in an abuse of process by filing legal actions despite the clear requirement
for mediation in the Subcontract’” and “‘attempting to coerce Plaintiff into
releasing its lien without payment of the necessary fees.’” (Complaint,
¶51.)
·
Opposing
defendants never agreed to take attorneys’ fees off calendar. (Larson
Decl., ¶¶ 3, 5.)
·
All of
Plaintiff’s ethical violation allegations are legally irrelevant and
substantively false and should be disregarded.
A.
Legal
Standard
“In
determining whether the first step has been established, i.e. the ‘arising
from’ element of the anti-SLAPP statute, a court must consider the pleadings
and any supporting and opposing affidavits stating the facts upon which alleged
liability is based.” (Gerbosi v. Gaims,
Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443-444.) As to a
SLAPP motion, “‘[t]he question is what is pled—not what is proven.’… And we
accept as true … pleaded facts.” (Central
Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217.)
Arguments
made by opposing parties as to the merits
cannot be considered in the threshold analysis as to whether causes of action
arise from protected activity. (Freeman
v. Schack (2007) 154 Cal.App.4th 719, 733 [“merits based arguments have no
place in our threshold analysis of whether plaintiffs' causes of action arise
from protected activity.”]; Birkner v.
Lam (2007) 156 Cal.App.4th 275, 284.) Where “a factual dispute exists about
the legitimacy of the defendant's conduct, it cannot be resolved within the
first step but must be raised by the plaintiff in connection with the
plaintiff's burden to show a probability of prevailing on the merits.” (Flatley v. Mauro (2006) 39 Cal.4th 299,
316.)
Moving
parties are not required to show that complainants intended to chill protected
rights. (E.g., City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 74.) “The subjective intent of a
party in filing a complaint is irrelevant in determining whether it falls
within the ambit of [Code of Civil Procedure] section 425.16.” (JSJ Ltd. Partnership v. Mehrban (2012)
205 Cal.App.4th 1512, 1521.)
If
moving parties successfully have shifted the burden, then opposing parties must
demonstrate a probability of prevailing on the merits of the complaint. (Equilon
Ent., LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67; Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; § 425.16, subd. (b)(1). A court
need not reach the second prong of the SLAPP analysis if the first prong
[arising from protected conduct] was not satisfied. Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th
790, 801.) “[A]n action may not be dismissed under this statute if the
plaintiff has presented admissible evidence that, if believed by the trier of
fact, would support a cause of action against the defendant.” (Taus v. Loftus (2007) 40 Cal.4th 683,
729.) “The plaintiff need only establish that his or her claim has ‘minimal
merit’…to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
The
litigation privilege “does not protect illegal conduct that results in damages
unrelated to the use of the fruits of that conduct in litigation.” (Scalzo v. Amer. Express Co. (2010) 185
Cal.App.4th 91, 100.)
Generally,
courts cannot allow leave to amend pleadings when granting SLAPP motions. (Premier Med. Mgt. Systems, Inc. v. Cal. Ins.
Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.)
B.
Step
One
The parties dispute whether the
allegations and evidence fall within the scope of the SLAPP statute.
The
SLAPP statute has been applied to a cause of action for abuse of process, arising
from legal representation in litigation. (See Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193
Cal.App.4th 435, 446.) “Numerous cases have held that the SLAPP statute
protects lawyers sued for litigation-related speech and activity.” (Thayer v. Kabateck Brown Kellner LLP
(2012) 207 Cal.App.4th 141, 154.)
“[W]hen
the defendant's assertedly protected activity may or may not be unlawful, the defendant may invoke the anti-SLAPP
statute unless the activity is unlawful as a matter of law.” (Dwight R. v. Christy B. (2013) 212
Cal.App.4th 697, 711-712.) “[T]he fact that a defendant's conduct was alleged
to be illegal, or that there was some evidence to support a finding of
illegality, does not preclude protection under the anti-SLAPP law.” (Wallace v. McCubbin (2011) 196
Cal.App.4th 1169, 1188, disapproved on
other grounds by Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.) If the conduct is shown to be illegal and
unprotected, by admissions, or conclusive proof, then the anti-SLAPP statute
does not apply. (Birkner v. Lam
(2007) 156 Cal.App.4th 275, 285; Novartis
Vaccines and Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2006) 143 Cal.App.4th 1284, 1299 [“there is no question that the actions of
the demonstrators were outside the law.”]; Miller
v. Filter (2007) 150 Cal.App.4th 652, 660.) “[W]here the plaintiff
acknowledges the challenged conduct arises from protected speech or petitioning
activity, then defendant's acts fall under the first prong of the anti-SLAPP
statute unless the defendant concedes, or the evidence conclusively
establishes, the challenged activity was illegal as a matter of law.” (Coretronic Corp. v. Cozen O'Connor
(2011) 192 Cal.App.4th 1381, 1391.)
Importantly,
the SLAPP statute does not apply to indisputably illegal communications that
are inherently criminal, but does apply to some illegalities of a
lesser magnitude. (G.R. v.
Intelligator (2010) 185 Cal.App.4th 606, 615-616 [statute applied where
counsel had failed to redact private information from a filed document, in
violation of Cal. Rules of Court, rule 1.20].) The rule that the SLAPP statute
does not protect speech or petitioning conclusively shown, or conceded to be,
illegal, is limited to criminal conduct. (Fremont
Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169.)
Communications constituting criminal extortion as a matter of law are not
protected by the anti-SLAPP statute. (Geragos
v. Abelyan (2023) 88 Cal.App.5th 1005, 1022; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 615.) The SLAPP
statute is inapposite to illegal speech, which means that the moving party
concedes that its conduct was criminal,
or that the evidence conclusively establishes it. (Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182
Cal.App.4th 1644, 1655.)
“‘Not
all attorney conduct in connection with litigation, or in the course of
representing clients, is protected by section 425.16.’” (United States Fire Ins. Co. v. Sheppard (2009) 171 Cal.App.4th
1617, 1626, 1628-1629 [SLAPP inapposite to allegations of professional ethics
violation arising out of attorney-client relationship not involving
protected speech or court-petitioning].)
Here, Plaintiff clearly bases the Third Cause of Action
upon communications combined with conduct in litigation. The opposition
states: “Attending a hearing they had previously
consented to remove from the court’s calendar, doing so after Southland
relinquished its lien and with full awareness that Southland’s counsel was
absent, having depended upon Defendants’ misleading representation.” (Motion,
2:13-22.)
Further,
none of the allegations relate to conclusive evidence of criminal, or
admittedly criminal, conduct, in order to exempt the Complaint from the SLAPP
statute. Instead, Plaintiff asserts these violations: “[C]onduct that breaches
Civil Code section 1550, inflicts injury under Civil Code section 1708, and
embodies deceit under Civil Codes sections 1709 and 1710(4). This deceit also
of California Rules of Professional Conduct Rules 8.4, demands accountability beyond
the protective reach of section 425.16 and the litigation privilege of section
47(b).” (Opposition, 3:4-9.)
In
sum, the Court readily concludes that the SLAPP statute covers the instant
allegations, evidence and arguments.
C.
Step Two
The
parties dispute whether the claim of Abuse of Process has merit or is accurate.
“In the context of an
anti-SLAPP suit, courts must consider the pertinent burden of proof in
ascertaining whether the plaintiff has shown a probability of prevailing” which
analyses turn upon the burdens applicable as to the elements of the particular
causes of action. (Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569, 1578.) The elements of a cause of action for abuse
of process are: 1) Ulterior purpose in commencing a process; and; 2) willful
act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1057.)
The alleged
stipulation between counsel is silent as to whether the entire petition,
including the attorneys’ fees request, would be withdrawn: “On July 31,
2024, Defendants emailed Plaintiff’s counsel: “we will withdraw our petition
for the release of the mechanics lien if a conformed, recorded release is
delivered to our office.” (Opposition, 2:25-28; Monon Decl., Ex. A).
Thus, a
legitimate portion of the petition could be pursued, without violating a
stipulation to take the it entirely off calendar. “It is up to the parties to state a stipulation clearly and
properly if they intend to be bound by it.” (Bemer v. Bemer (1957) 152 Cal.App.2d 766, 771-772.) “Unless it is
clear from the record that both parties assented, there is no stipulation.” (Sarracino v. Superior Court (1974) 13
Cal.3d 1, 14.)
As a general
proposition, statutory motions sometimes involve determinations of attorneys’
fees requests separate and apart from the other parts of the motions. For
example, analogously, SLAPP motions are not fully moot after informal resolution,
where a request for statutory attorneys’ fees was included. (E.g., Catlin Ins. Co., Inc. v. Danko Meredith Law
Firm, Inc. (2022) 73 Cal.App.5th 764, 774; Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1365; Pfeiffer Venice Properties v. Bernard
(2002) 101 Cal.App.4th 211, 218; and White
v. Lieberman (2002) 103 Cal.App.4th 210, 220.)
Thus, Plaintiff failed to show that the Third Cause of
Action for Abuse of Process has at least minimal merit.
III. DISPOSITION
Defendants’ Motion to Strike Complaint is GRANTED.
The Court strikes the Complaint, without leave to amend, as
to Defendants LARSON & GASTON, LLP and JOHN B. LARSON, only.