2013-00153151-CU-CO

Michael Clark vs. State of Ca., Dept of Corrections

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Harris, Mark H.

Defendant Mark H. Harris Motion to Strike pursuant to CCP 425.16 (Anti-SLAPP) is
granted.

Plaintiff has requested oral argument.

Defendant’s Request for Judicial Notice is granted.

Plaintiff’s Request for Judicial Notice is granted.

Defendant is named only in the 3rd cause of action for Fraud. Plaintiff alleges that he
was induced to sign an agreement to be transferred to the Nevada Department of
Corrections (NDOC) . Defendant Harris, who was a contract attorney for the CDCR,
allegedly fraudulently induced plaintiff to accept the Interstate Compact Placement
Agreement (“ICPA”) in settlement of a claim against the CDCR. Plaintiff alleges that
Defendant, in representing his client CDCR, made representations of material fact in
court that transferring plaintiff out of state would not interfere with continued litigation of
plaintiff’s civil active cases. Plaintiff alleges that the representations were false, and
that the truth was that transferring out of state would interfere with continued litigation
of plaintiff’s active civil cases.

Plaintiff was subsequently transferred to Nevada. [Complaint, para. 21]. On or about
November 1, 2007, Plaintiff was returned to the custody of CDCR and was placed at
California State Prison, Sacramento. [Complaint, para.13; see also November 7, 2007
letter from Plaintiff filed with the Court, see below.] On or about November 7, 2007,
Plaintiff wrote a letter to the judge presiding over the settlement of the Underlying
Action, Honorable Loren McMaster (Department 53), which was filed with the Court on
November 26,2007. The letter alleges that CDCR and its counsel “lied”. [See
November 7,2007 letter from Michael Clark filed with the Court and attached to the
Request for Judicial Notice (“RJN”) filed herewith as Exhibit A.]

The allegations against Defendant Harris arise solely out of alleged
statements/representations allegedly made by Defendant Harris in a judicial
proceeding in Sacramento County Superior Court on or about June 28, 2006. All
communicative acts performed by attorneys as part of their representation of a client in
a judicial proceeding or other petitioning context are per se protected by the anti-
SLAPP statute. Cabral v Martins (2009) 177 Cal.App.4th 471, 478. All communications made in the judicial proceeding are absolutely privileged pursuant to
Civil Code 47(b). Hagberg v California Federal Bank (2004) 32 Cal.4th 350, 360-361.
Plaintiff’s action against Defendant Harris is properly stricken under California Code of
Civil Procedure (CCP) Secfion 425.16(e) as the sole basis of Plaintiffs action against
Defendant Harris arises from an alleged oral statement made in a judicial proceeding
and/or an oral statement made in connection with an issue under consideration by a
judicial body.

Thus, in order to sustain his initial burden on an anti-SLAPP motion, a defendant need
only show that plaintiff’s lawsuit “arises from” defendant’s exercise of free speech or
petition rights as defined in Section 425.16(e). Equilon Enterprises, LLC v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 61. In other words, attorney Harris only needs to
make a prima facie showing that Clark’s complaint “arises from” Harris’ constitutionally-
protected free speech or petition activity. Governor Gray Davis Committee v. American
Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.

Once a defendant makes such a showing, the burden shifts to plaintiff to establish a
“probability” that plaintiff will prevail on the claims asserted against defendant. Code of
Civil Procedure § 425.16(b). “(P)laintiff must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment.” Premier Med. Mgmt. Systems. Inc. v. California Ins Guar. Ass’n
(2006) 136 Cal.App.4th 464, 476. Plaintiff’s burden is to produce evidence that would
be admissible at trial: i.e., to proffer a prima facie showing of facts supporting a
judgment in plaintiffs favor. Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.

Pursuant to CCP Section 425.16(b)(1), Plaintiff here cannot demonstrate a reasonable
probability of prevailing on the merits because, as a matter of law, Plaintiffs Third
Cause of Action for fraud is barred by the litigation privilege found in California Civil
Code Section 47(b). The entire basis for the fraud cause of action against Defendant
Harris is an alleged representation made in court in the context of a judicial
proceeding, on or about June 28, 2006.

Defendant Harris was a contract attorney retained by several defendants to defend
them in an action filed by plaintiff Michael Clark (hereinafter “Plaintiff) in Sacramento
County Superior Court, entitled Michael Clark v. State of Califomia. et al.. Case No.
04AS02331 (hereinafter referred to as “the Underlying Action”). [See para.III-FR 1 .-2;
see also Declaration of Mark H. Harris)

In California, the State adopted CCP Section 425.16 in response to the threat of
lawsuits that chilled a defendant’s exercise of free speech. CCP Section 425.16 (the
anti-SLAPP statute) provides that, “a cause of action against a person arising from any
act of that person in furtherance of the person’s right of petition or free speech under
the United States or California Constitution in connection with a public issue shall be
subject to a special motion to strike, under the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.” [CCP
Section 425(b)(1).] The statute defines “act in furtherance of a person’s right of petition
or free speech … in connection with a public issue” as: “(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;…” [CCP Section 425.16(e).] The statute is to be “construed broadly”. [CCP Section 425.16(a).]

As explained, the Court is to engage in a two-part analysis to determine the propriety
of granting a special motion to strike under Section 425.16. First, the Court decides
whether the cause(s) of action arise from acts in furtherance of the defendant’s right of
free speech or right to petition. A defendant meets this burden by demonstrating that
the act underlying the plaintiffs cause fits one of the categories spelled out in section
425.16(e). [Navarro v. IHOP Properties, Inc. (2005)134 Cal.App.4th 834; Braun v.
Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036 ] If the defendant has made such
a showing, the Court then determines if the plaintiff has demonstrated a reasonable
probability of prevailing. [CCP Section 425.16(b)(1).] The defendant is only required to
show that the defendant’s alleged acts fall under either of the first two prongs of
Section 425.16(e). The defendant is not required to independently demonstrate that
the matter is a “public issue” within the statute’s meaning. [Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1113; Navarro v. IHOP Properties, Inc.
(2005)134 Cal.App.4th 834.

Where a plaintiff alleges fraud against a defendant for statements made in settlement
negotiations as well as for settlement statements in court, such statements fall
squarely within the plain language of Section 425.16 the action should be stricken,
Navaellier v. Sletten (2002) 29 Cal.4th 82, 85-86, 90; Navarro v. IHOP Properties, Inc.
(2005)134 Cal.App.4th 834 [litigation privilege bars claim for fraud for intentional
misrepresentation concerning an alleged material settlement term]; Dowling v.
Zimmerman (2001) 85 Cal.App.4th 1400, 1420.] The litigation privilege found in Civil
Code section 47(b) applies to fraud and all torts other than malicious prosecution.
Kuehn v Kuehn (2000) 85 Cal.App.4th 824.

Defendant also contends that plaintiff’s claims against him are barred by CCP 338
which provides that a fraud cause of action must be brought within three years of
discovery of the alleged fraud. When plaintiff was returned to California is 2007 he
filed documents with the Sacramento Superior Court containing some of the same
allegations alleged in this Complaint: that defendants lied when they said he could
perform legal research and pleading in Nevada.

In opposition, plaintiff admits that the statements were made in court, but he contends
that the statements allegedly made by Harris were not “authorized by law” because
fraud is not authorized. Plaintiff fails to distinguish the facts of this case from those in
the above cases relied on by defendant, in which similar allegations were held to be
absolutely privileged. Since they are absolutely privileged, plaintiff cannot show that
he has a probability of prevailing.

Plaintiff contends that the statute of limitations does not bar this action because
plaintiff was first required to file a tort claim against the parties represented by
defendant Harris. He alleges he ascertained the fraud in January of 2008 when he
was confined in the NDOC. The court is not ruling on the statute of limitations claim
given that the absolute privilege bars this action.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.