2013-00157028-CU-PA
Jeb U Burton vs. Leonard C Hart Nibbrig
Nature of Proceeding:
Filed By:
Motion to Strike (SLAPP)
Sommer, Jason J.

Defendants Leonard C. Hart Nibbrig and Law Office of Leonard C. Hart Nibbrig
(collectively “Defendants”) special motion to strike pursuant to CCP §425.16 is ruled
upon as follows.

This is an action involving two law firms. Plaintiff Jeb U. Burton, an individual, d.b.a.
The Burton Law Firm (“Plaintiff”) was retained by co-defendant Steven Rowzee
(“Rowzee”) to represent Rowzee in a probate matter. (Complaint, ¶10.) Rowzee’s
petition to probate his wife’s holographic will was denied and Plaintiff verbally and in
writing recommended that Rowzee consult an outside attorney if he believed that he
had any claim against Plaintiff. (Id. ¶13.) Rowzee thereafter engaged Defendants with
regards to his claims against Plaintiff. (Id. ¶15.) On behalf of Rowzee, Defendants filed
a complaint against Plaintiff for professional negligence and breach of fiduciary duties
(“Rowzee Complaint”). The Rowzee Complaint alleged: (1) but for Plaintiff’s acts,
Rowzee would have recovered all of the personal and real property assets of his wife,
(2) Plaintiff failed to apprise Rowzee of any or all of the adverse occurrences in the
probate matter, (3) Plaintiff failed to disclose and concealed conflicts of interests from
Rowzee, and (4) Plaintiff continued to negligently continue to represent Rowzee.
After the complaint was filed, Defendants sent a letter to Plaintiff alleging claims of
legal malpractice and breach of fiduciary duty and demanded payment of $76,000. (Id.
¶ 20.) The parties entered into a settlement agreement on August 14, 2012. (Id. ¶
21.) Plaintiff alleges that although Defendants knew that the Rowzee Complaint had
been filed, Defendants failed to disclose this fact to Plaintiff. (Id. ¶21, 23.) The
Settlement Agreement included a representation that the parties had not filed any
complaints, claims or actions against any Party to the agreement. (Id.) Plaintiff
alleges that it would not have entered into the Settlement Agreement if he had known
the existence of the Rowzee Complaint. (Id. ¶42.) Plaintiff alleges that he was never
served with the Rowzee Complaint and did not learn that the Rowzee Complaint had
been filed until August 21, 2012.

Plaintiff alleges a single cause of action against Defendants for fraud in the
inducement.

Defendants’ request for judicial notice is granted.

Legal Standard

The California legislature enacted Code of Civil Procedure section 425.16, known as
the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and
causes of action that are brought to chill the valid exercise of the constitutional rights to
free speech and to petition the government for
redress of grievances. (See Rusheen v Cohen (2006) 37 Cal.4th 1048, 1055-1056.
“The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides whether the defendant moving to strike has made a threshold showing that the
challenged cause of action is one “arising from” protected activity. If the court finds
such a showing has been made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim. “When the trial court examines
plaintiff’s affidavits, it must consider whether he has presented sufficient evidence to
establish a prima facie case, i.e., a showing by competent and admissible evidence, of
facts which, if proven at trial, would support a judgment in his favor; when it considers
defendant’s affidavits, the court cannot weigh them against plaintiff’s, but must decide
only whether they defeat plaintiff’s supporting evidence as a matter of law.” (Du
Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal. App. 4th
107, 112.)

Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that
arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP,
subject to being stricken under the statute.” (Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 819-820; citations omitted.) The defendant has the burden on
the first prong that the claim arises from protected activity, and the plaintiff has the
burden on the second prong of affirmatively demonstrating a probability of prevailing
on the claim. (See Governor Gray Davis Com v American Taxpayers Alliance (2002)
102 Cal App.4th 449, 456; City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76.)

Arising from Protected Activity

Defendants argue that the cause of action for fraud in the inducement arises from
protected activity because it involves Defendants’ communications with opposing
counsel, relating to Rowzee’s legal malpractice claims and proceedings. (CCP
§425.16(e).)

In opposition to the motion, Plaintiff argues that the legal malpractice action is
incidental to the cause of action and the gravamen of Defendants’ cause of action is
his fraudulent activity. Therefore, according to Plaintiff, the cause of action did not
arise from protected activity.

The Court disagrees. Settlement communications, even those alleged to be
fraudulent, in the context of a lawsuit fall within the first prong of CCP § 425.16. (
Navellier v. Sletten (2002) 29 Cal.4th 82, 89-90 [defendant’s failure to disclose during
settlement negotiations his intent not to be bound by the negotiated release “falls
squarely within the plain language of the anti-SLAPP statute.”]; Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400, 1420.) Here, the very basis for the fraud cause of action
is allegations that Defendants made misrepresentations and concealed facts to induce
Plaintiff to enter a settlement agreement to resolve a contemplated lawsuit. These
representations were therefore statements “made in connection with an issue under
consideration or review by a…judicial body.” (CCP § 425.16(e)(2); Digerati Holdings
LLC, v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 887
[“statements made in anticipation of a court action or other official proceeding may be
entitled to protection under the anti-SLAPP statute.”].)

Defendants have satisfied their threshold burden to demonstrate that Plaintiff’s cause
of action arises from protected activity. The burden now shifts to Plaintiff to
demonstrate a reasonable probability of prevailing.

Reasonable Probability of Prevailing

Defendants argue that the litigation privilege bars Plaintiff’s claims. The
Court agrees. As noted above, Plaintiff’s cause of action is based on the allegations
that Defendants made representations regarding the settlement of a contemplated
lawsuit, and that Plaintiff would not have entered the agreement but for the
misrepresentations/concealment. Plaintiff does not address Defendant’s argument
regarding the litigation privilege and presents no authority that Civil Code § 47 does
not apply in such circumstances and case authority is clear it does. (Navarro v. IHOP
Properties, Inc. (2008) 134 Cal.App.4th 834, 843-844.)

Plaintiff has failed to satisfy its burden to demonstrate a reasonable probability of
prevailing.

Accordingly, Defendants’ special motion to strike is GRANTED.

Defendants shall submit a formal order and judgment of dismissal for the Court’s
signature.