34-2013-00147273

Mark Downie vs. Frank Radoslovich

Nature of Proceeding:      Motion for Attorney Fees

Filed By:    Haney, Steven H.

The matter will be heard by Judge Loncke at 9 a.m. in Department 54 at the end of
Department 54’s regular calendar.

Plaintiff Mark Downie’s motion for an award of attorney’s fees pursuant to CCP §
425.16(c) is denied.

On October 3, 2013, this Court issued a tentative ruling denying Defendants Frank
Radlosovich, Radlosovich Krogh, PC and Radlosovich Law Corporation’s anti-SLAPP
motion.  The Court took the matter under submission and affirmed the ruling on
November 4, 2013.  Plaintiff now seeks fees.

“If the court finds that a special motion to strike is frivolous or is solely intended to
cause unnecessary delay, the court shall award costs and reasonable attorney’s fees
to a plaintiff prevailing on the motion, pursuant to Section 128.5.”  (CCP § 425.16(c).)
Section 128.5(b)(2) defines “frivolous” as “(A) totally and completely without merit or
(B) for the sole purpose of harassing an opposing party.”  “A motion is totally and
completely without merit for purposes of a finding of frivolousness under section
425.16, subdivision (c)(1) or section 128.5 only if any reasonable attorney would agree
that the motion is totally devoid of merit.”  (Chitsazzadeh v. Kramer & Kaslow (2011)
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199 Cal.App.4   676, 683-684.)

The instant case involves claims by Plaintiff that Defendants breached their contract
with him by, among other things, making improper settlement communications and
overbilling him in connection with settlement matters.  Defendants filed their anti-
SLAPP motion claiming that the lawsuit arose out of protected activity because it was
based upon protected settlement communications.  The Court denied the motion
finding that Defendants failed to demonstrate that they met their first prong under CCP  § 425.16 by showing that their claims arose out of protected activity.  The Court’s
denial was based upon Prediwave Corporation v. Simpson Thatcher & Bartlett LLP
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(2009) 179 Cal.App.4   1204 which contained a statement that “[i]t is unreasonable to
interpret this language [e.g. CCP § 425.16’s requirement that the cause of action must
arise out of protected activity] to include a client’s causes of action against the client’s
own attorney arising from litigation-related activities undertaken for that client.”  (Id. at
1227-1228.)

Here, the Court concludes that the anti-SLAPP motion was not frivolous within the
meaning of CCP § 425.16(c).  The Court finds that this was not a motion that “any
reasonable attorney would agree is totally devoid of merit.”  (Chitsazzadeh, supra, 199
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Cal.App.4   at 684.)  Indeed, while this Court relied upon Prediwave, a case from the
Sixth District Court of Appeal (incorrectly referred to as a Supreme Court case in the
Court’s ruling on the underlying anti-SLAPP), there is an apparent conflict among the
appellate courts regarding whether an anti-SLAPP motion may be used against claims
brought by an attorney’s former client.  Indeed, as seen in the opposition, the First
District Court of Appeal has applied the anti-SLAPP statute to claims against a former
client.  (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton (2005) 133
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Cal.App.4   658, 688.)  The Second District has done the same.  (Fremont
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Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4   1153.)

Plaintiff’s attempt to downplay the split amongst the appellate courts on the basis that
those cases involved attorney malpractice and he did not allege malpractice in his
complaint is not persuasive.  Indeed, as seen from a subsequent ruling on Defendants’
demurrer to Plaintiff’s complaint, the demurrers to his breach of contract and contract
related causes of action, which specifically alleged that Defendants failed to
adequately perform legal services, in addition to alleging improper billing issues, were
sustained on the basis that they were barred by the one year statute of limitations set
forth in CCP § 340.6, a statute governing legal malpractice claims.  Thus, given the
conflict among the appellate courts, the Court finds that the underlying anti-SLAPP
motion, while unsuccessful was not one that “any reasonable attorney would agree is
totally devoid of merit.”

Plaintiff’s main argument that the motion was frivolous is a reference to a comment
made by the Court prior to hearing oral argument on the underlying anti-SLAPP.
Defendants’ counsel requested extra time to present argument, which request was
declined by the Court.  The Court stated that “I will not take extra time to hear this
case.  I think it’s a frivolous anti-SLAPP motion…”  (Plf’s counsel’s decl. Exh. B. 2:14-
18.)  That comment, however, was made before the Court even entertained oral
argument.  Nor could it be deemed a finding of fact as to the nature of the underlying
motion.  This is true because CCP § 425.16(c) only allows for sanctions based on a
frivolous motion as allowed by CCP § 128.5.  CCP § 128.5(c) requires that prior to
sanctions being imposed, the party subject to such sanction must be provided notice
and the opportunity to be heard.  A comment made prior to notice and an opportunity
to be heard cannot support the instant motion.  Indeed, “[o]ral findings do not meet the
requirements of section 128.5…Arguments based upon oral statements of the trial
judge are inappropriate.”  ( 580 Folsom Assocs. v. Promoetheus Dev. Co. (1990) 223
Cal.App.3d 1, 23.)  Thus, any statement from the Court prior to oral argument on the
underlying anti-SLAPP does not constitute any finding that the motion was frivolous.

In addition, as alluded to above, the Court has since sustained Defendants’ demurrer
to the complaint on the basis that some of Plaintiff’s claims were barred by the statute              of limitations governing legal malpractice claims and granted a standard motion to
strike certain allegations on the basis that they were related to confidential mediation
conduct.  These were the grounds asserted in the second prong of Defendants’ anti-
SLAPP motion which the Court did not reach in the underlying motion given its
conclusion that Defendants failed to meet the first prong of the anti-SLAPP analysis.
However, the fact that these arguments have been accepted by the Court, albeit in a
different procedural posture, further demonstrates that the motion was not frivolous.
Indeed, “[w]hen a motion has partial merit, it is not ‘totally and completely’ without
merit, nor can it be said that its ‘sole’ purpose is to harass.’”  (Gerbosi v. Gaims, Weil,
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West & Epstein, LLP (2011) 193 Cal.App.4   435, 450.)

The motion is denied.  As a result, the Court need not reach the issue of the
reasonableness of the fees sought by Plaintiff.

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.