Judge: Stephen P. Pfahler, Case: 24STCV12200, Date: 2024-09-19 Tentative Ruling

Case Number: 24STCV12200    Hearing Date: September 19, 2024    Dept: 68

Dept. 68

Date: 9-19-24

Case #24STCV12200

Trial Date: Not Set

 

SPECIAL MOTION TO STRIKE

 

MOVING PARTY: Defendants, Christine Brito, et al.

RESPONDING PARTY: Plaintiffs, Kostiv & Associates, et al.

 

RELIEF REQUESTED

Special Motion to Strike the Complaint

 

SUMMARY OF ACTION

Plaintiffs Kostiv & Associates and Petro Kostiv represented third party client, Lessly Yadira Velasquez Gomez, et al. in a certain matter. Gomez, et al. apparently substituted in new counsel, Defendants Law Office of Christine Brito and Christine Brito, and then assisted Gomez, et al. in filing a complaint with the California State Bar against Plaintiffs. Plaintiffs allege the complaint was frivolous and malicious, thereby constituting a misdemeanor. Plaintiffs also maintain Gomez, et al. surreptitiously recorded conversations with Plaintiffs though it’s not clear if and how said recordings were utilized. The Gomez case appears to reference an immigration proceeding.

 

On May 15, 2024, Plaintiffs filed a complaint for 1) Defamation-Libel 2) Defamation-Slander 3) False Light 4) Intentional Infliction of Emotional Distress 5) Negligence 6) Intentional Interference with Advantageous Relationships 7) Unfair Business Practices 8) Misrepresentation 9) Invasion of Privacy in Violation of California Penal Code §632 10) Violation of California Penal Code §632.7 11) Negligent Infliction of Emotional Distress. Defendants answered the complaint on July 1, 2024.

 

RULING: Granted in Part/Denied in Part.

Request for Judicial Notice: Granted.

Supplemental Request for Judicial Notice: Granted.

 

Defendants Law Office of Christine Brito and Christine Brito moves to strike the entire complaint on grounds that the identified allegations and claims arise from privileged and protected conduct. More specifically, Defendants maintain the filing of the California State Bar complaint on behalf of their clients with the constituted an absolutely privileged act. Defendants challenge the ability of Plaintiffs to state a claim.

 

Plaintiff in a 22 page opposition (exceeding the 15 page limit) counters that the motion is untimely; the motion contains misrepresentations; the State Bar Complaint itself contained lies, which exempts any protections under the litigation privilege; and, Plaintiffs can establish the merits of all claims.

 

Defendants in reply reiterate the litigation privilege and immunity provisions. Defendants challenge the accusation of “misrepresentation” and maintain the motion was properly filed. Defendants deny any illegal conduct as precluding application of the statute. Defendants conclude with the position of an inability to establish any probability of prevailing on the underlying claims.

 

Timing

A special motion to strike must be filed within 60 days from service of the complaint (with an additional five days under Code of Civil Procedure section 1013 subdivision (a) for service by mail), or at any later time that the court deems proper. (Code Civ. Proc., § 425.16, subd. (f).)

 

“Service of a summons by mail is authorized only when a copy of the summons is mailed by first-class mail to the person to be served, together with two copies of the notice and an acknowledgment. (§ 415.30, subds. (a), (b).) Such service is complete when a written acknowledgment of receipt of summons is returned to the sender. (§ 415.30, subd. (c).)” (Folke v. Pulliam (2023) 96 Cal.App.5th Supp. 18, 28.)

 

The complaint was filed May 15, 2024. Defendants executed notices of acknowledgment and receipt May 24, 2024. The proofs of service were filed on June 17, 2024. It remains unclear when the notices of acknowledgment and receipt were actually returned. By law, service could not be completed any earlier than May 24, 2024. The court finds no support for any purported agreement from Defendants deeming service complete on the presumed mailing date of the agreed upon notice of acknowledgment and receipt to counsel. Such an agreement would require proof of a waiver of the clear statutory provisions for establishing completed service, which appears nowhere in the introduction to the motion, footnote 1, declaration of counsel in support, opposition, or reply. 

 

July 23, 2024, was exactly 60 days from the date of the signature. The special motion to strike was filed on Thursday July 26, 2024—63 days from the signature dates. Defense counsel represent an inability to file the motion at an earlier date due to the court wide ransomware attack beginning on Friday July 19, 2024. Counsel acknowledges notice of restoration of the system allowing for reservations on July 24, 2024, but still no ability to file documents. Counsel admittedly failed to follow-up on July 25, 2024, due to out of area work, but filed the motion the following day. [Declaration of Vikram Sohal.] The inability to file a motion due to lack of court access from an event impacting all court technology will in no way lead to a lapsed deadline if the time frame falls within the subject period.

 

It remains unclear from either party, however, as to whether filing capacity was reinstated on July 25, 2024. Even accepting the May 24, 2024, signature dates, and admission by counsel to a filing due date of July 23, 2024, thereby establishing a mailing date on the same date, the court still lacks an ability to verify the exact allowable filing date following ransomware attack service restoration. The court declines to deem the motion untimely on this basis, and in its discretion finds the circumstances both known and known, allows for consideration of the motion on the merits. (Code Civ. Proc., § 425.16, subd. (f).)

 

Standard for Special Motions to Strike

Code of Civil Procedure section 425.16 provides that “[a] cause of action 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 California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two-step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

 

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution 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.)

 

The anti-SLAPP provisions apply where the allegations of the defendant’s protected activity are the gravamen or principal thrust of the cause of action. (Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’”].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [“We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines

whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute”].) .) “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 889.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

 

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) “The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)

 

“The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint.” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

 

Declaration and Additional Evidence

In addition to citation to the complaint, Defendants also submits a declaration and request for judicial notice in support, which the court can rely upon in determining whether moving party meets the threshold for shifting the burden in a special motion to strike. (Code Civ. Proc., § 425.16, subd. (b)(2); Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679 [The court interprets the activities of the parties through the allegations in order to determine free speech activity but need not adhere to the strict form of the operative pleading in order to make such determinations].)

 

Statutory Application

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

 

“[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 v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063; see Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1046-1047.) “[W]e do not evaluate the first prong of the anti-SLAPP test solely through the lens of a plaintiff's cause of action. Defendants' acts on which the counts alleged in the complaint are based ...” (Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at p. 679.) The court therefore both considers the actual pled causes of action, the declarations, and requests for judicial notice, for purposes of determining whether Defendants’ conduct of amounts to a protected activity within the framework of the statute.

 

“[S]ection 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition. A contrary rule would be inconsistent with the purpose of the anti-SLAPP statute as revealed by its language.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 317; Collier v. Harris (2015) 240 Cal.App.4th 41, 54 [acts a plaintiff alleges are unlawful or illegal are nonetheless protected activity under the anti-SLAPP statute if the acts assist or facilitate the defendant's free speech rights [¶ ][unless] the defendant concedes or the evidence conclusively establishes the defendant's conduct is illegal as a matter of law”]; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296.)

 

At least a portion of the complaint and the subject matter of the instant motion arises from the complaint with the State Bar of California. Plaintiff in opposition cites to Business and Professions code section 6128, and the complaint references Business and Professions code section 6043.5. The complaint itself alleges the State Bar complaint as “frivolous,” with additional claims of “false and/or misleading” statements made to the immigration court, and a vague allegation of “false and defamatory” statements of fact and opinion to the State Bar. The outright “lies” are asserted in the opposition, which includes numerous exhibits not in any way incorporated into the operative complaint. Plaintiff additionally maintains improper client relation interference based on the “aiding and abetting” of defendants to defame Plaintiffs. The opposition also contends “coercion” of the client. The opposition otherwise provides no address of the illegal recording claims, though the court will address the subject causes of action below.

 

“Every attorney is guilty of a misdemeanor who either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” (Bus. & Prof. Code, § 6128.) “(a) Every person who reports to the State Bar or causes a complaint to be filed with the State Bar that an attorney has engaged in professional misconduct, knowing the report or complaint to be false and malicious, is guilty of a misdemeanor. (b) The State Bar may, in its discretion, notify the appropriate district attorney or city attorney that a person has filed what the State Bar believes to be a false and malicious report or complaint against an attorney and recommend prosecution of the person under subdivision (a).” (Bus. & Prof. Code, § 6043.5.)

 

“An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. (Citation.) The privilege is based on ‘[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.’ (Citation.)” (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.) “One policy underlying the absolute privilege for statements made in governmental investigations and reports of misconduct ‘is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ (Citations.) … [¶] … As other courts have stated, ‘there must be an open channel of communication by which citizens can call [the investigator's] attention to suspected wrongdoing.’” (Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1390–1391; Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 335; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009.) “To achieve this end, the absolute privilege is interpreted broadly to apply “to any communication, not just a publication, having ‘some relation’ to a judicial [or quasi-judicial] proceeding,” irrespective of the communication's maliciousness or untruthfulness.” (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958.)

 

“[W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but 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. In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant's concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff's second prong showing of probability of prevailing.  (Flatley v. Mauro, supra, 39 Cal.4th at p. 320.)

 

The illegal activity argument is strictly limited to the actual supported section(s) in the Business and Professions Code. Defendants in no way concede to any illegal activity through the advising of the client and assistance with the presentation of the complaint to the State Bar of California. The court finds nothing in the complaint, the declaration of Michael Quiroga, or the 50 pages of exhibits supporting any actual criminal conduct allowing a finding of exclusion of the litigation privilege.

 

The complaint and declaration allege and describe certain practice norms for the immigration bar, but violations of practice norms in no way equate to an illegal activity. Again, the required standard when examining the first part of the test requires a “preliminary” finding of illegal conduct, without getting into the evidentiary standards governing the second prong of the test. (See Code Civ. Proc., § 425.16, subd. (b); Taus v. Loftus, supra, 40 Cal.4th at p. 729; Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim”].)  

 

Reliance on “frivolous” opinionated series of statements to the State Bar, which eventually led to the State Bar NOT Defendants prosecuting an action against Plaintiffs in no way supports a finding of an intention to commit illegal conduct through submission of false statements. The State Bar presumably investigated the claim and determined the veracity of the statements sufficient enough to warrant a complaint. Without specific and categorical proof of actual illegal activity, the court finds no basis for an exception to application of the statute on the claims arising from the filing of the action with the State Bar of California, which led to the prosecution by the State Bar. [Req. Jud. Not. Ex. 14.] (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 836.)

 

Further, any alleged communications with the client while still represented by Plaintiff in no way supports a finding of illegal activity as well. [See Declaration of Christine Brito.] The opposition lacks any legal citation in support of this position, and the court declines to find criminal conduct as a result of the client seeking new counsel. The suggestion of “extortion” by the client in requesting financial assistance lacks any apparent application to the claim against Defendants, even if Plaintiffs offered a legally and supported argument for this exact position. The court declines to consider speculative assertions. Finally, while not part of the illegal conduct consideration, the court also finds the claims regarding false statements to the immigration court categorically within the absolute privilege umbrella as well.

 

The court therefore concludes Defendants shift the burden on the claims involving the report to the state bar, which led to the prosecution of an action by the State Bar. The court also finds any conduct in the representation of the client, including statements to any court are also privileged.

 

Nevertheless, lacking from the motion is any address of the two individual causes of action which in no way apparently rely on the state bar, new counsel representation, and/or extortion claims—specifically the ninth and tenth causes of action for unlawful recording and eavesdropping claims. Curiously, the complaint itself only alleges the client was entirely responsible for any and all recording, and provides no factual allegations as to Defendants.

 

Neither party actually addresses the sections:

 

(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) For the purposes of this section, “person” means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

 

(Pen. Code, § 632.)

 

Every person not a party to a telegraphic or telephonic communication who willfully discloses the contents of a telegraphic or telephonic message, or any part thereof, addressed to another person, without the permission of that person, unless directed so to do by the lawful order of a court, is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both

that fine and imprisonment.

 

(Pen. Code, § 637.)

 

(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

(1) Five thousand dollars ($5,000) per violation.

(2) Three times the amount of actual damages, if any, sustained by the plaintiff.

(b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

(d) This section shall not be construed to affect Title 4 (commencing with Section 3425.1) of Part 1 of Division 4 of the Civil Code.

 

Pen. Code, § 637.2

 

The court finds no nexus between the alleged recording and any presentation of said material to the state bar or immigration judge. The court therefore only finds the motion applicable to all but the ninth and tenth causes of action.

 

Probability of Success on the Merits

The burden now shifts to plaintiffs to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[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, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)  

 

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

 

“The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

 

Again, Defendants rely on the litigation privilege as a defense to all claims arising from the State Bar complaint. Defendants also cite to Business and Professions Code section 6094, as a form of immunity from any claims, due to communications relating to attorney competence. Defendants deny any submission of false or frivolous evidence. Plaintiffs again fall back on represented practice standards and the nebulously articulated “extortion” claim. Plaintiffs rely on a fundamental assumption that an attorney is barred from communicating (e.g. poaching a current client), but such an argument lacks any actual acknowledgment of the rights of the client to communication with whomever they wish. Thus, even if said bilateral communications between the client and Defendants occurred during the time of representation by Plaintiffs, the court finds no basis of support for wrongful conduct establishing an exemption.

 

“Communications to the State Bar relating to lawyer misconduct or disability or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding are privileged, and no lawsuit predicated thereon may be instituted against any person.” (Bus. & Prof. Code, § 6094, subd. (a).) The court finds moving parties are immune under the litigation privilege and immunity provisions for any and all claims arising from communications with the clients, and the State Bar complaint. The law and public policy clearly and unequivocally support the litigation privilege in cases of client representation and State Bar claims.

 

The court therefore finds all conduct absolutely privileged and immune. The motion is therefore GRANTED as to the first, second, third, fourth, fifth, sixth, seventh, eighth, and eleventh causes of action. The motion is DENIED as to the ninth and tenth causes of action arising from the purported eavesdropping claims by the clients not counsel.

 

Defendants to answer the ninth and tenth causes of action within 10 days. Defendants waived any potential demurrer to the remaining causes of action due to the failure to timely file the demurrer, even if it meant reserving the date until after the hearing on the subject motion. “A motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905 accord Lam v. Ngo (2001) 91 Cal.App.4th 832, 851 (footnote 12).)

 

Case Management Conference set for November 4, 2024.

 

Defendants to give notice.