Case Name: Ascarie v. Lafayette, et al.
Case No.: 1-14-CV-258848

Defendants Gary Lafayette (“Lafayette”) and Lafayette & Kumagai, LLP (collectively, “Defendants”) specially move to strike plaintiff Mahmoud Ascarie’s (“Plaintiff”) complaint pursuant to Code of Civil Procedure section 425.16.

Defendants’ request for judicial notice is GRANTED, pursuant to Evidence Code section 452, subdivision (d).

“Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process [in reviewing a special motion to strike]. 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 determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

To satisfy their initial burden as moving party, Defendants must show that Plaintiff’s complaint arises from an act made in furtherance of the right to free speech or right to petition, which may be demonstrated by establishing that the underlying acts fall within one of the four categories of conduct enumerated in § 425.16, subdivision (e). (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.)

The gravamen of this lawsuit against Defendants is that Lafayette made fraudulent promises during settlement negotiations in the Federal Action. Specifically, Plaintiff alleges the following: during the pendency of the Federal Action, Lafayette promised Plaintiff that he would represent Plaintiff in a lawsuit against his previous employer if Plaintiff agreed to dismiss the Federal Action against Nationwide (Complaint, ¶ 10); based on that promise, Plaintiff agreed to dismiss the Federal Action (Complaint, ¶ 11); Plaintiff signed a Stipulation and Proposed Order for Dismissal prepared by Lafayette, based on Lafayette’s promise to represent him in a lawsuit against his previous employer (Complaint, ¶ 11); and after the dismissal of the Federal Action, Defendants ceased all communications with Plaintiff and Plaintiff never received a response to his request to file the lawsuit against his previous employer (Complaint,
¶ 14). Such conduct is clearly protected by section 425.16, subdivision (e)(2) as statements made in connection with an issue under consideration by a judicial body because the statements at issue were made in furtherance of resolving a lawsuit. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [in an action in which the plaintiffs sued the defendant for fraud, alleging the defendant had misrepresented his intent to be bound by a release in a previous federal action, the California Supreme Court held that the anti-SLAPP statute applied, stating that the defendant’s negotiation and execution of the release involved “statement[s] or writing[s] made in connection with an issue under consideration or review by a … judicial body”]; see also Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478 [statements, writings, and pleadings in connection with civil litigation are covered by the anti-SLAPP statute].) Thus, the burden shifts to Plaintiff to provide evidence demonstrating a probability of success on these claims.

To establish a “probability” of prevailing on the merits, Plaintiff must demonstrate that the complaint is both: (1) legally sufficient; and (2) supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by plaintiff is credited. (Navellier, supra, 29 Cal.4th at p. 89.) In addition, Plaintiff must present evidence to overcome any privilege or defense to the claim that has been raised, in order to demonstrate a “probability of success on the merits.” (See Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [Civil Code § 47, subd. (b) litigation privilege presents a substantive defense plaintiff must overcome to demonstrate probability of success on the merits]; see also Sipple v. Foundation For Nat’l Progress (1999) 71 Cal.App.4th 226, 240-241 [plaintiff could not show a “probability” that he would prevail in a libel action where the allegedly libelous article was shown to be absolutely privileged under Civil Code section 47, subdivision (d)].)

Defendants’ assertion that the litigation privilege applies to their conduct is correct. “[T]he [litigation] privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) In holding that the litigation privilege applied to bar a fraud action for statements made during the negotiation of a stipulated judgment, the court noted that “[n]umerous courts have held that statements relating to settlements also fall within the privilege, including those made during settlement negotiations.” (Navarro v. IHOP Properties, Inc. (2005) 134 Cal. App. 4th 834, 836, citing Joseph A. Saunders, P.C. v. Wessburg & Aronson (1999) 74 Cal. App. 4th 869, 875, Asia Investment Co. v. Borowski (1982) 133 Cal. App. 3d 832, 842, and O’Neil v. Cunningham (1981) 118 Cal. App. 3d 466, 477.) Here, there is no dispute that Defendants’ alleged statements were made in connection with attempts to resolve the Federal Action. (See Complaint, ¶¶ 10, 11.) Based on case law holding that statements relating to settlement of a lawsuit fall within the ambit of the litigation privilege, the Court finds that the litigation privilege applies to Defendants’ alleged conduct. Plaintiff was required to present evidence to overcome this privilege, but failed to do so. Accordingly, Plaintiff fails to meet his burden of establishing a probability of prevailing on the merits.

Based on the foregoing reasons, Defendants’ special motion to strike is GRANTED.