Case Name: Maria Elena’s Restaurant, Inc. v. Patricia A. Boyes, Esq., et al.

Case No.: 19CV347686

This is an action for professional negligence, breach of contract and fraud among other claims brought by Plaintiff Maria Elena’s Restaurant, Inc. (“Plaintiff”). The present lawsuit is based on actions taken by Defendants Patricia A. Boyes and Boyeslegal, APC (hereafter “Defendants”) in their capacity as Plaintiff’s counsel in a prior personal injury lawsuit, Orlando Paramo v. Maria Elena’s Restaurant, et al., 2012-1-CV-230170 (“prior action”). More specifically, every cause of action in the original and still operative Complaint in this matter, filed May 9, 2019, is expressly based on either Defendants’ filing of a request for dismissal of Mr. Paramo’s remaining claims in his fourth amended complaint in the prior action or statements made by Defendants while negotiating a partial settlement of the prior action with Plaintiff.

The Complaint states seven causes of action: 1) Professional Negligence (alleging at ¶24 that Defendants “negligently dismissed all of its rights and remedies without advising [Plaintiff] of the intent to dismiss the action.”); 2) Breach of Contract (alleging at ¶32 that Defendants’ “filing of the request for dismissal with prejudice was a material breach of the settlement agreement.”); 3) Rescission and Restitution (incorporating all prior allegations and alleging at ¶38 that “Paramo failed to perform his obligations pursuant to the settlement agreement.”); 4) Intentional Interference with Contractual Relations (alleging at ¶43 that “[b]ecause Boyes and Paramo filed a request for dismissal with prejudice prior to the time [Plaintiff] could accept performance by receiving the medical payment, this action prevented performance of the settlement agreement.”); 5) Fraud (incorporating all prior allegations by reference and alleging at ¶49 that the “representations and promises” in the settlement agreement were made by Defendants “with the intent to defraud plaintiff and were made for the purpose of inducing plaintiff to rely upon them.”); 6) False Promise (alleging at ¶56 that Defendants falsely “made a promise to assign [Paramo’s] rights the ten-thousand dollar $10,000.00) medical payment from the insurance companies, and which implied that they would not obstruct [Plaintiff’s] ability to perfect its rights to the medical payment funds.”), and; 7) Negligent Misrepresentation (incorporating all prior allegations by reference and alleging at ¶65 that Defendants “had no reasonable grounds for believing the promise of the medical payment was true when it was made because [Defendants] could, and in fact did, prevent [Plaintiff] from exercising those rights without the knowledge or consent of [Plaintiff].” (Brackets added.)

Currently before the Court is Defendants’ special motion to strike the entire Complaint pursuant to Code of Civil Procedure (“CCP”) §425.16.

I. Request for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

In support of the motion Defendants have submitted a request for the Court to take judicial notice of one document pursuant to Evidence Code §452, without identifying any more specific basis for notice. That document is a copy of a memorandum of points and authorities in support of a demurrer filed in the prior action. While the document has little relevance to the material issue the Court will GRANT the request pursuant to Evidence Code §452(d) (court records) only. As a court record other than a court order or judgment, the document can only be noticed as to its existence and filing date (which is not apparent from the copy provided) and not as to the truth of its contents.

II. Special Motion to Strike the Complaint

There are two steps or prongs to the anti-SLAPP analysis.

A. First Step

When a special motion to strike is filed, the initial burden rests with the moving party to demonstrate that the challenged pleading arises from protected activity. (Code Civ. Proc. “CCP” §425.16(e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [CCP] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) That section provides that an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ 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 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.” (CCP §425.16(e).) “These categories define the scope of the anti-SLAPP statute by listing acts which constitute an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’” (Collier, supra, at 51, citing CCP §425.16(e).)

As the California Supreme Court has stressed, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “In other words, the defendant’s act underlying the plaintiff’s cause of action must itself have been in furtherance of the right of petition or free speech.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Peregrine Funding, supra, 133 Cal.App.4th at p. 670.) “[H]owever, it is not enough to establish that the action was filed in response to or in retaliation for a party’s exercise of the right to petition. [Citations.] Rather, the claim must be based on the protected petitioning activity.” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804, (Bergstein), citing Navellier v. Sletten (2003) 29 Cal.4th 82, 89.) “[I]f the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 271 (Baharian-Mehr).)

A defendant need only make a prima facie showing that the complaint “arises from” protected activity. (See Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.)

B. Second Step

Only if the first step has been satisfied does the burden shift to the plaintiff to establish the second step, a “probability” that he/she/it will prevail on whatever claims are asserted against the defendant. (See CCP §425.16(b).) The plaintiff’s burden in this step “is subject to a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) It requires the plaintiff to show that the complaint is both legally sufficient and supported by sufficient prima facie evidence to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. Cal. Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (CCP §425.16(b)(2).) The evidence considered is that which would be admissible at trial. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The court considers both parties’ pleadings and evidence without weighing “the credibility or comparative probative strength”; however, “it should grant the motion if, as a matter of law, the defendant’s evidence … defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Soukup, supra, at p. 291.) “The plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1368; accord Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Affidavits or declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714.)

In order to demonstrate a probability of prevailing, the plaintiff must also produce admissible evidence sufficient to overcome any privilege or defense the defendant has asserted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323; Bergstein, supra, 236 Cal.App.4th at pp. 819-821.)

C. Attorneys’ Fees and Costs

The “prevailing defendant” on the motion to strike “shall be entitled” to recover his or her attorney fees and costs. (CCP §425.16(c).) The purpose of this fee-shifting provision is both to discourage meritless lawsuits and to provide financial relief to the SLAPP lawsuit victim. “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131. See also Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 364 [rejecting due process and equal protection challenges to provision].) CCP §425.16(c) is ambiguous as to what “fees and costs” are recoverable, but legislative history shows it was it was intended to allow only fees and costs incurred on the motion to strike itself and not the entire litigation. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; see also Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 [A prevailing defendant on an anti-strategic lawsuit against public participation (SLAPP) motion may recover attorney fees and costs only on the anti-SLAPP motion, not the entire suit.]).

The fee award is against the losing plaintiff, not the losing plaintiff’s attorney. The attorney is not a party to the action and thus not subject to the fee award under CCP §425.16. (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.)

III. Analysis

The special motion to strike the Complaint by Defendants Patricia A. Boyes and Boyeslegal, APC is GRANTED as follows.

The first step or prong of the analysis is satisfied here as Defendants have made the necessary prima facie showing that the Complaint arises from their protected activity in the prior litigation. “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Peregrine Funding, supra, 133 Cal.App.4th at p. 670.) As noted above every cause of action in Plaintiff’s Complaint is based on Defendants’ protected activity: the negotiation of the partial settlement of the prior action and the filing of the request for dismissal of Mr. Paramo’s complaint in the prior action. Both are protected activity under CCP §425.16(e)(1) and/or (2).

“It is well established that the protection of the anti-SLAPP statute extends to lawyers and law firms engaged in litigation-related activity. . . . ‘Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.’ . . . Consequently, because settlement negotiations are regarded as an exercise of the right to petition, communications during such negotiations are regarded as having been made in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2). The protection of the anti-SLAPP statute applies ‘even against allegations of fraudulent promises made during the settlement process.’” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113-114, internal citations omitted, emphasis in original.)

On the second step or prong of the analysis Plaintiff cannot show a probability of prevailing on its claims because the litigation privilege provides Defendants a compete defense to all seven cause of action alleged in the Complaint.

The litigation privilege, which is codified in Civil Code §47, subdivision (b), immunizes litigants from liability for torts, other than malicious prosecution, which arise from communications in judicial proceedings. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege generally applies to any communication by a litigant in a judicial proceeding that is made “to achieve the objects of the litigation” and has “some connection or logical relation to the action.” (Id., at 212.) Its purpose is to “afford litigants free access to the courts without fear of being harassed by later derivative tort actions; encourage open channels of communication and zealous advocacy; promote complete and truthful testimony; give finality to judgments; and avoid unending litigation.” (People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274.)

“The litigation privilege is absolute; it applies, if at all, regardless of whether the communication was made with malice or the intent to harm.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 [also stating that “application of the privilege does not depend on the publisher’s ‘motives, morals, ethics or intent’”]; see also Silberg, supra, 50 Cal.3d at p. 215 [stating that “[t]o effectuate its vital purposes, the litigation privilege is held to be absolute in nature”].) The litigation privilege immunizes defendants from tort liability of all torts other than malicious prosecution—which is not a cause of action alleged here. (See Kashian, supra, 98 Cal.App.4th at p.913 [stating that “the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution”].)

In order to demonstrate a probability of prevailing, the plaintiff must produce admissible evidence sufficient to overcome any privilege or defense the defendant has asserted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323; Bergstein, supra, 236 Cal.App.4th at pp. 819-821.) Plaintiff here has not accomplished this. The only evidence submitted by Plaintiff, the declaration of Plaintiff’s counsel John Kevin Crowley (and the email communications between counsel and the request for dismissal attached as exhibits) does not establish that the litigation privilege does not apply here.

The fact that Plaintiff alleges that the activity on which the Complaint is based was fraudulent, a breach of contract and/or illegal does not makes the privilege inapplicable. As one court of appeal has observed, “conduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful. [Citation.] If that were the test, the anti-SLAPP statute would be meaningless.” (Hansen v. California Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1545, italics omitted.) The fact that activity is alleged to be illegal, or that there is some evidence to support a finding of illegality, does not preclude protection under the anti-SLAPP law. (See Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1188; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612-616 [attorney’s filing of a credit report in connection with a post-dissolution motion, in violation of Cal. Rules of Court, was protected activity].) When the defendant’s assertedly protected activity may or may not be unlawful, the defendant may still invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law. (Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, 446.) An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful. (Ibid.; Flatley, supra, at p. 317.)

Here Defendants dispute that they did anything unlawful, made any intentionally misleading statements, or breached any actual provision of a contract (the partial settlement of the prior action). Even if it is assumed for purposes of argument that, for example, the filing of the dismissal was a breach of contract (and Plaintiff has not established this) that would not be an “illegality” that would make the litigation privilege inapplicable or alter the conclusion that the filing of the dismissal and the negotiation of the partial settlement was protected activity for purposes of the anti-SLAPP statute.

Since the litigation privilege provides Defendants a complete defense it is not necessary for the Court to address Defendants’ additional arguments that Plaintiff cannot show a probably of prevailing because of each of the claims are otherwise flawed. The Court notes that with their reply Defendants have submitted evidentiary objections to portions of the declaration of Plaintiff’s Counsel John Kevin Crowley. As the Court does not find it necessary to consider those portions of Mr. Crowley’s declaration in concluding that the litigation privilege provides a complete defense to Defendants and demonstrates that Plaintiff cannot show a probability of prevailing, the Court declines to rule on those objections.

The Court also notes that the declarations submitted by Defendants do not address the fees and costs associated with the motion. The Court therefore declines to make an award of fees and costs at this time.