Judge: Walter P. Schwarm, Case: 30-2022-01253427, Date: 2022-11-22 Tentative Ruling

The court requests the parties to appear on 11-22-22 to discuss the status of San Diego County Superior Court Case No. 37-2018-000063780.

Defendants’ (MLG, APLC and Jonathan A. Michaels) Special Motion to Strike First Amended Complaint under Code of Civil Procedure section 425.16 (Motion), filed on 6-17-22 under ROA No. 39, is CONTINUED to 1-17-23 at 9:00 a.m. in Department C32.

Defendants’ Reoly in Support of Special Motion to Strike First Amended Complaint (Reply), filed on 11-15-22 under ROA No. 73, states, “The 2018 Settlement of the underlying Campos et al. v. Failla litigation was reached via mediation. (See Supplemental / Clarifying Declaration of Travis R. Eagan, ¶ 2, filed herewith and incorporated herein by this reference.) As such, all things said or written via the mediation (to settle the litigation) are not merely incidental or collateral to the right to petition. They

cannot be cherry-picked to form the gravamen of a purported claim for malpractice. All things said or written during mediation are covered by the mediation confidentiality laws, and are indivisibly part of the process of settling protected activity. They are not secondary to the settlement or collateral or incidental to the litigation. The 2018 Settlement and, without limitation, all things said and written about it during the mediation are protected activities in furtherance of the exercise of the constitutional right of petition, which satisfies the first prong.” (Reply, 2:4-13.)

Defendants did not raise this contention in the Motion. In support of their new argument in reply, Defendants also submit the Supplemental/Clarifying Declaration of Travis R. Eagan (filed on 11-15-22 under ROA No. 75).

The court will give Plaintiffs (Brian Blatz, Eddie Andrew Campos, and Scott A. Noll) an opportunity to respond to Defendants’ new argument regarding whether communications during mediation constitute protected activity within the meaning of Code of Civil Procedure section 425.16 in the context of the claims for professional negligence and breach of fiduciary duty as alleged in the Complaint filed on 4-5-22 under ROA No. 2. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Plaintiffs shall filed their supplemental brief no later than 12-16-22 and their supplemental brief shall not exceed five pages. Plaintiffs may submit additional evidence with their supplemental brief limited to the new issue regarding mediation set out above.

Defendants are to give notice.