Case Name: Cyrus Hazari v. D.D. Hughmanick
Case No.: 18CV337311

I. Background

This action arises from a dispute among neighbors. Cyrus Hazari (“Plaintiff”) asserts causes of action against his neighbor’s attorney, defendant D.D. Hughmanick (“Defendant”), for nuisance, fraud, “violation of ethics,” “perjury and subornation of perjury,” interference, “personal injury,” and libel. (Compl. at pp. 3–4.) It seems Plaintiff’s grievances with Defendant originally stem from conflicts over grazing rights and property enclosures in Plaintiff’s neighborhood. One of Plaintiff’s neighbors had cattle that she grazed on his land. Another of Plaintiff’s neighbors, Defendant’s client, had dogs as well as goats that grazed throughout the neighborhood to abate weeds. At some point, a dispute arose over the sufficiency of fencing around Plaintiff’s land. Plaintiff takes issue with an email Defendant sent to Plaintiff’s cattle-grazing neighbor on behalf of his client expressing concerns about the sufficiency of existing fencing for the purpose of retaining livestock. Defendant asserted his client’s fence was sufficient to contain dogs but not livestock and that Plaintiff’s fencing was insufficient as well. Defendant concluded by stating his client would hold the cattle-grazing neighbor liable for property damage should the cattle escape Plaintiff’s land; he also suggested that the neighbor ask Plaintiff to install a suitable enclosure in the event she intended to continue grazing her cattle there. In addition to taking issue with this email, Plaintiff takes issue with Defendant’s purported participation in the filing of a perjured answer in the separate action between Plaintiff and Defendant’s client.

Currently before the Court is Defendant’s special motion to strike the complaint and accompanying request for attorney’s fees. Plaintiff filed a response to the motion. Defendant filed written objections to Plaintiff’s evidence and a request for judicial notice with his reply.

II. Request for Judicial Notice

Defendant filed a request for judicial notice of court records in connection with his reply. Court records are subject to judicial notice under Evidence Code section 452, subdivision (d). That said, a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) The Court records enumerated in Defendant’s request are from Plaintiff’s federal lawsuit against this court, Plaintiff’s action against Defendant’s client in this court, a family law action in which Plaintiff provided various services to the parties, and matters Plaintiff filed with the Sixth District Court of Appeal. Although perhaps responsive to the veracity and validity of grievances set forth in Plaintiff’s response to the special motion to strike, these records are not relevant to the merits of the special motion to strike. Accordingly, the matters are not necessary, helpful, or relevant to the resolution of the motion. Defendant’s request for judicial notice is, therefore, DENIED.

III. Special Motion to Strike

A. Legal Standard

Code of Civil Procedure section 425.16 authorizes a person to bring a special motion to strike claims “arising from any act [ ] in furtherance of [his or her] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Courts evaluate special motions to strike using a two-step analysis. (Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1116.) “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Ibid.)

At the first step, “the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) The moving party must demonstrate the allegations fall within one of the four categories of protected activity defined in Code of Civil Procedure section 425.16, subdivision (e). (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 877–78.) The four categories are as follows: “(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, subd. (e).)

“When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral, supra, 1 Cal.5th at p. 396.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Ibid.) If the moving party fails to demonstrate there are claims arising from protected activity in the first instance, the burden does not shift and a court need not reach the second step of the analysis. (Id. at p. 384.)

At the second step, the plaintiff must “demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) “The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.) “If not, the claim is stricken.” (Ibid.) “Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Ibid.)

B. Application

Defendant argues Plaintiff’s claims arise from protected activity because they are based on litigation-related statements. “A statement is ‘in connection with’ an issue under consideration by a court in a judicial proceeding within the meaning of clause (2) of section 425.16, subdivision (e) if it relates to a substantive issue in the proceeding and is directed to a person having some interest in the proceeding.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167.) While “[m]any anti-SLAPP cases involving prelitigation communications concern demand letters or other statements to adverse parties or potential adverse parties [citations], there is no such requirement in the text of section 425.16, subdivision (e)(2).” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1270.) “That provision has been held to protect statements to persons who are not parties or potential parties to litigation, provided such statements are made ‘in connection with’ pending or anticipated litigation.” (Ibid.)

As Defendant articulates, Plaintiff’s complaint is based in part on an email Defendant sent on behalf of his client to the neighbor that grazed cattle on Plaintiff’s property. (Compl., ¶ 6 & Ex. 1.) It is, in essence, a demand letter that threatens legal action in the event the cattle cause damage to the client’s property. The potential damage addressed in the letter directly relates to the fencing dispute and related litigation between Plaintiff and Defendant’s client. Indeed, the letter explicitly references the related litigation. Thus, the email constitutes a protected statement made in connection with a judicial proceeding. Plaintiff alleges this letter caused him harm and constituted interference with his agreement with his neighbor. And so, Plaintiff’s complaint and the causes of action therein arise from that protected activity

Plaintiff also alleges Defendant participated in the filing of a purportedly perjured verified answer in the action between Plaintiff and Defendant’s client. (Compl., ¶¶ 9–14.) Courts have held “filing petitions, motions, and briefs in court (and/or assisting in the filing) are protected petitioning activities under the anti-SLAPP statute.” (Gaynor, supra, 19 Cal.App.5th at p. 880; see, e.g., Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 136.) Here, the filing of and assistance with the filing of an answer is protected activity. Plaintiff alleges he was harmed by this conduct. (Compl., ¶¶ 13–15.) And so, Plaintiff’s complaint and constituent claims arise from protected activity to the extent they are based on the purported filing of the perjured answer.
There are no other allegations giving rise to Plaintiff’s claims. Plaintiff’s claims are based in their entirety on the two litigation-related statements discussed above.

In sum, Defendant establishes Plaintiff’s complaint and the claims therein arise from protected activity. The burden, thus, shifts to Plaintiff to demonstrate he has a probability of prevailing.
Plaintiff filed a nonsubstantive opposition to the motion consisting of a half-page “response” and accompanying “declaration…for frivolous motion by Defendant to manipulate the court and escape prosecution.” The response is devoid of authority or legal analysis. The points in these documents are nonresponsive to Defendant’s arguments and insufficient to establish Plaintiff has a probability of prevailing. While Plaintiff’s declaration has attached to it several declarations from neighbors other than Defendant’s client that he describes as “[s]amples” of how the witnesses will testify at trial, it is not obvious how the materials attached to Plaintiff’s declaration are sufficient to make a prima facie showing for each of his claims. The declarations primarily consist of rehashed gossip and opinions about the character and reputation of Defendant’s client that are not relevant. Accordingly, Plaintiff fails to establish he has a probability of prevailing.

In reaching this conclusion, the Court observes that Defendant also advances a number of anticipatory arguments to negate any showing by Plaintiff that he has a probability of prevailing. In light of Plaintiff’s response to the motion, it is unnecessary to address all of these anticipatory arguments. Nevertheless, a number of these arguments are persuasive. For example, the Court is not aware of authority recognizing civil causes of action for crimes such as perjury and subornation of perjury or for violation of the rules of professional responsibility. Plaintiff simply pleads that the facts alleged support such claims, he does not set forth the purported elements of those claims. And so, in addition to the fact that Plaintiff does not show his claims are factually substantiated, they also appear to be legally insufficient. As another example, Defendant presents evidence showing he did not sign any of the answers in the action between his client and Plaintiff, which are not verified answers. (Hughmanick Decl., Exs. D–E.) Thus, Defendant presents evidence showing he simply did not engage in some of the conduct alleged in the complaint.

The Court has otherwise considered the points made by Plaintiff in his opposition, which concern confidential proceedings and, thus, are not recounted herein. The Court issued orders under seal throughout this year, particularly in April, May, June, September, and October. In light of these orders and in the absence of an actual request, the Court will not continue the hearing on or deny Defendant’s motion based on the vague grievances set forth in Plaintiff’s response and declaration.

In conclusion, Defendant’s special motion to strike the complaint is GRANTED.

IV. Request for Attorney’s Fees

Defendant requests an award of attorney’s fees in the amount of $9,850.

“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c)(1).) In light of this statutory language, “an award is usually mandatory.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) A trial court “assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney…involved in the presentation of the case.’” (Ibid., quoting Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131–32.) “The court tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Christian Research Institute, supra, 165 Cal.App.4th at p. 1321.)

Here, Defendant retained a colleague at his law firm, namely James McDaniel, to represent him in this action. Mr. McDaniel graduated with honors from Santa Clara University in 2014 and has been practicing since. (McDaniel Decl., ¶¶ 2–3.) Mr. McDaniel charges $250 per hour, which he represents is both reasonable and below the rate charged by other similarly-qualified attorneys in the area. (McDaniel Decl., ¶ 3.) Since the commencement of this action in November 2018, Mr. McDaniel has expended 44.60 hours representing Defendant. (McDaniel Decl., Ex. A.) Of these hours, Mr. McDaniel discounted 5.20 hours and only billed for 39.40 hours at his customary rate of $250 per hour for a total of $9,850.00.

The Court finds $250 is a reasonable hourly rate. The Court also finds Mr. McDaniel has presented billing records with sufficient detail about the tasks performed to allow for an informed ruling on this request. Nevertheless, the Court finds that not all 39.40 hours of time are compensable. “A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs ‘incurred in connection with’ the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action.” (569 East County Boulevard, LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433, original italics, quoting Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21.)

By the Court’s tally, Mr. McDaniel dedicated 28.80 hours to researching, writing, and reviewing the special motion to strike for a total of $7,200. These hours are reasonable and compensable. But the remaining hours were expended in connection with tasks and proceedings that are only indirectly related to the special motion to strike in that the proceedings ultimately impacted the scheduling of the hearing on the motion. The Court finds hours in excess of 28.80 are too tenuously connected to be compensable. Accordingly, the Court finds the lodestar fees Defendant may recover amount to $7,200.

In conclusion, Defendant’s request for an award of attorney’s fees is GRANTED in the amount of $7,200.

After the signed order has been served, Defendant shall submit a proposed judgment after compliance with Rules of Court, Rule 3.1312.

The Court will prepare the order.