19-CIV-06345 J.B.B. INVESTMENT PARTNERS, LTD., ET AL. VS. R. THOMAS FAIR, ET AL.

J.B.B. INVESTMENT PARTNERS, LTD., R. THOMAS FAIR BALDWIN MAYOR LAW GROUP
JACK RUSSO FRED W. GERBINO BRADLEY BENING

SPECIAL MOTION TO STRIKE THE FIRST THROUGH FOURTH CAUSES OF ACTION, FILED BY DEFENDANTS BALDWIN MADER LAW GROUP, PATRICK BALDWIN, AND CHRISTOPHER MADER TENTATIVE RULING:

The special motion to strike the first through fourth causes of action, filed by Defendants Baldwin Mader Law Group, Patrick Baldwin, and Christopher Mader, is DENIED. The gist of this action is that Defendants engaged in “overly aggressive” litigation (FAC para. 59) in order to avoid or delay paying the amounts due under the Settlement Agreement. Some of the acts supporting the claims are the filing of a cross-complaint, four appeals, motion to stay and compel arbitration, motion for sanctions, appeal of an anti-SLAPP order, and appeal of order granting summary adjudication. (FAC para. 26, 28, 29, 30, 31.) These acts are generally within the scope of a person’s “right of petition.” To fall within the anti-SLAPP statute, however, a claim must “arise from” the protected activity. (Code of Civ. Proc. Sect. 425.16, subd. (b)(1).) A claim “may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Okorie v. Los Angeles Unified Sch. Dist. (2017) 14 Cal. App. 5th 574, 59.)

(The above authorities quote Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 10157, 1068-72, in which plaintiff doctor was denied tenure, allegedly based on national origin discrimination. The University moved to strike, arguing that the discriminatory statements during tenure review was protected activity. The SLAPP motion was denied, since the basis of the action was the denial of tenure, not the discriminatory statements.)

The gist of this action is that Defendants Fair and Cameron Creek wrongfully reneged and delayed enforcement of the Settlement. They did this by aggressively litigating the underlying action, which sought to enforce the settlement. This case does not “arise from” protected activity, because the protected activity (filing motions, appeals, etc.) were the means to achieving the delay as discussed below.

The first through fourth causes of action, as against the Attorney Defendants, alleges that Defendants Fair and Cameron Creek wrongfully reneged on and delayed enforcement of the Settlement Agreement. They allegedly did this by aggressively litigating unnecessarily the underlying action, which sought to enforce the settlement. These claims do not “arise from” protected activity, because the protected activity (filing motions, appeals, cross-complaint) were only the means to achieving the delay.

The Complaint does not allege that any statement in any court filing or in any oral argument caused damage to Plaintiffs. Instead, the alleged damages are the $700,000 in attorney’s fees resulting from the underlying litigation. (FAC paras. 40 & 69.) The complaint does not allege that any of these fees were the result of the content of papers filed or any statements made by the Attorney Defendants. Therefore, the communicative acts of filing papers and arguing in court are not the alleged cause of harm.

The purpose of the anti-SLAPP statute is to protect the “valid” exercise of constitutional rights of speech and petition for redress of grievances. (Flatley v. Mauro (2006) 39 Cal. 4th 299, 328; Code of Civ. Proc. § 425.16(a).) Permitting attorneys to avoid being sued for using frivolous litigation as a weapon, not to achieve a valid end, but to delay a client’s legal payment obligation does not chill a person’s “valid exercise” of right of petition. It would chill only invalid exercises of that right.

The filing of numerous frivolous motions, appeals, and the crosscomplaint did not result in any adverse action to Plaintiffs; neither the communications in those papers nor the results of having done so are not “the wrongs complained of.” (Okorie, supra, at 592.) Rather, the delay and avoidance of satisfying the Settlement Agreement is the wrong complained of.

Since the first through fourth causes of action arise from delay in complying with the Settlement Agreement, and not from any communications by the Attorney Defendants, none of the claims arises from protected activity. For failure to satisfy the first prong of the anti-SLAPP statute, the special motion to strike is denied. The Court need not evaluate whether Plaintiffs have a probability of prevailing on any of the claims.

Attorney’s Fees

The anti-SLAPP statute provides:

If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

(Code of Civ. Proc. § 425.16, subd. (c)(1).) There is no suggestion that this motion was filed solely to cause unnecessary delay. The question is whether the motion was frivolous.

It is frivolous if “any reasonable attorney would agree that the appeal is totally and completely without merit.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 885 [malicious prosecution; quoting In re: Flaherty [frivolous appeal].)

Although the motion lacks merit, it is not clear that “no reasonable attorney” would believe it had merit. For that reason, Plaintiff’s request for attorney’s fees is denied. (Code of Civ. Proc. § 425.16, subd. (c)(1).

Defendants shall file and serve a responsive pleading no later than March 31, 2020, or two weeks after service of written notice of this ruling, whichever date is later.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 is required as the tentative ruling affords sufficient notice to the parties. Prevailing party shall provide written notice of entry of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.