Jeffrey Gippetti v. Moira Hogan

Case Name: Jeffrey Gippetti v. Moira Hogan, et al.
Case No.: 1-13-CV-257927

After full consideration of the arguments, authorities, and papers submitted by each party, the Court makes the following rulings:

Pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute), defendants the Law Office of Maynard and Hogan (“Maynard and Hogan”), Moira Hogan (“Hogan”), and Douglas Maynard (“Maynard”) (collectively, “Defendants”) have filed a special motion to strike the first amended complaint (“FAC”) of plaintiff Jeffrey Gippetti (“Plaintiff”). Defendants also demur to each cause of action in the FAC on the ground of failure to allege sufficient facts to state a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

Defendants’ request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d) [court may take judicial notice of records of state or federal court].)

A defendant may bring a special motion to strike a cause of action “arising from any act of that person in furtherance of the person’s 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).) “The analysis of an anti-SLAPP motion … involves two steps. First, the court decides whether the defendant 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. 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.)

Defendants persuasively argue that the filing of a notice of attorney’s lien constitutes protected activity under the anti-SLAPP statute. (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 943 [“Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute.”]; Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1176 [filing notice of attorney’s charging lien prevents former client from settling around lien]; Fletcher v. Davis (2004) 33 Cal.4th 61, 69 [by asserting charging lien, client’s recovery tied up until commencement of independent action for declaratory relief].)

In opposition, Plaintiff contends that the FAC does not arise out of protected activity because the entire lawsuit is not based on the filing of the attorney’s lien. This argument lacks merit. Liability for each of Plaintiff’s claims is based, in part, on Defendants’ allegedly wrongful filing of the lien. (See Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1551 [where cause of action based on both protected and unprotected activity, it is subject to section 425.16 unless protected conduct merely incidental to unprotected conduct]; see also FAC, BC-4, CC-1(b)(6), FR-6.) Accordingly, Defendants establish that Plaintiff’s claims arise from protected activity and the burden shifts to Plaintiff to show a probability of prevailing on the merits. (See Oasis West Realty, LLC, supra, 51 Cal.4th at pp. 819-820.) Plaintiff fails to demonstrate a probability of prevailing on his claims because he makes no arguments and provides no evidence regarding the substantive merits of the motion. (Id. at p. 820 [plaintiff must demonstrate complaint both legally sufficient and supported by prima facie showing of facts to sustain a favorable judgment if the evidence submitted by plaintiff credited].)

Accordingly, Defendants’ special motion to strike the FAC is GRANTED. In light of this ruling, Defendants’ demurrer to the FAC is MOOT.

The Court will prepare the Order.

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