Motion for SLAAP filed by Defendants Hwang, Petra La Habra and Petra Property, Inc.;

GRANTED. Plaintiff’s Second Cause of Action for Fraud shall be stricken from the Complaint, pursuant to C.C.P. §425.16 and based on the litigation privilege. Additionally, Plaintiff is ordered to pay sanctions to Defendants, within thirty (30) days of this order, in the amount of $4,130.00 per C.C.P. §425.16(c) within thirty (30) days of this order.

Additionally, Defendants’ Request for Judicial Notice is GRANTED. The Court OVERRULES Defendants’ Objections Nos. 1-10 and SUSTAINS Objection No. 11.

Pursuant to GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, “[a]n attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike.” Id. at 908.

Similarly, pursuant to Seltzer v. Barnes (2010) 182 Cal.App.4th 953, settlement negotiations fall within the scope of section C.C.P. §425.16. Id. at 963.

As to the Second Cause of Action for Fraud, Plaintiff alleges Defendants’ attorney made misrepresentations, when he accepted the Settlement Agreement. (¶39-¶40 of FAC).

Plaintiff appears to concede that the Second Causes of Action arises from settlement discussions and negotiations. Pursuant to GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, C.C.P. §425.16 applies to such conduct.

Additionally, pursuant to GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, “under the litigation privilege, communications with some relation to judicial proceedings are absolutely immune from tort liability.” Id. at 909.

Further, “[a] settlement letter directed to counsel falls within the category of communications to which the privilege attaches regardless of appellants’ perception it is divisive and purportedly precipitates a conflict of interest.” Id. at 909.

As further explained by the Court in Seltzer v. Barnes (2010) 182 Cal.App.4th 953, the litigation privilege has been found to bar claims for fraud, arising from misrepresentations allegedly made during settlement negotiations. Id. at 970-971.

Finally, as the Court in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 stated: “To the extent Dowling’s SLAPP complaint was also based on statements that Zimmerman made to Dowling’s counsel, Kopp, while negotiating the stipulated settlement of the unlawful detainer action on behalf of the Whites, those statements were privileged under subdivision (b) of Civil Code section 47.” Id. at 1422.

Based on all of the above, the litigation privilege applies to bar Plaintiff’s claim for Fraud.

Additionally, even assuming Civil Code §47(b) did not apply to bar the claim for fraud, Plaintiff failed to meet his burden of demonstrating a probability of prevailing on this claim. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.

Plaintiff’s Opposition asserts: “Plaintiff did in fact rely on Defendants’ representations by ceasing collection efforts as of May 10, 2013, when the Contract was entered into. As indicated in Plaintiff’s email to Defendants’ attorney Chad Biggins on May 10, ‘I have directed the Orange County Sheriff’s Department to cease the moving of inventory and equipment at Petra Arco.’ Zartarian Dec. ¶10; Exhibit C.” (Opposition: 9:19-23). A review of Mr. Zartarian’s Declaration and Exhibit “C” reveals no support for this statement. Mr. Zartanrian does not declare that collection efforts ceased on May 10, 2013. Additionally, Exhibit “C” does not include such a statement. Thus, Plaintiff failed to demonstrate a prima facie claim for Fraud.

Lastly, pursuant to C.C.P. §425.16(c), Plaintiff is ordered to pay attorney’s fees in the amount of $4,130.00. Defendants’ request was reduced, as the Court concludes C.C.P. §425.16 would not have applied to the First Cause of Action for Breach of Contract.

The claim for Breach of Contract alleges distinct breaches, each sufficient to support the claim in its entirety, neither breach is “incidental” to the cause of action. Thus, the existence of an alleged breach which is non-protected conduct appears sufficient to defeat application of C.C.P. §425.16 to this claim.

Thus, Defendants are not entitled to attorney’s fees and costs, with respect to this portion of the anti-SLAPP Motion.

Moving party to give notice.