Filed 10/23/20 Linde Law Firm v. Americana at Brand CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE LINDE LAW FIRM,

Plaintiff and Respondent,

v.

THE AMERICANA AT BRAND, LLC,

Defendant and Appellant.

B303141

(Los Angeles County

Super. Ct. No. 19STCV18442)

APPEAL from an order of the Superior Court of Los Angeles County, Gregory Keosian, Judge. Affirmed.

Brown, Neri, Smith & Khan, Ethan J. Brown and Jackie K. M. Levien for Defendant and Appellant.

Douglas Adam Linde for Plaintiff and Respondent.

____________________________

Under Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, “[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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) It follows from the statute that a defendant must establish that the challenged claim arises from activity protected by section 425.16. (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1103 (Symmonds).)

In this appeal, we are called upon “to ‘exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity.’ ” (Wong v. Wong (2019) 43 Cal.App.5th 358, 363.) To determine that question, we apply our Supreme Court’s holding in Park v. Board of Trustees (2017) 2 Cal.5th 1057 (Park) that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060.)

In this case, defendant cannot demonstrate that its petitioning activity—compliance with a court order—itself is the wrong giving rise to plaintiff’s claims. The activity underlying plaintiff’s claims against defendant is defendant’s failure to pay plaintiff money that defendant allegedly owes plaintiff because of a purported attorney lien. Because the trial court correctly concluded that the anti-SLAPP statute did not apply, we affirm the order denying defendant’s anti-SLAPP motion.

BACKGROUND

This case has a lengthy and complicated background. We summarize only those facts relevant to analyzing whether the trial court properly denied defendant The Americana at Brand LLC’s (Americana’s) anti-SLAPP motion.

1. Initial Litigation Between Americana and Primo Hospitality Group (Primo)
2.
Primo, a tenant who rented space from Americana, sued Americana and Americana cross-complained against Primo. The trial court entered judgment in August 2012. The judgment, as subsequently amended, included components in favor of both Primo and Americana.

Novian & Novian LLP (Novian) initially represented Primo in the trial court. Haney Torbett LLP later represented Primo in the trial court. The Linde Law Firm (Linde), the plaintiff in the current litigation, represented Primo in an appeal to Division Five of this Court that resulted in a 2015 nonpublished opinion. (Primo Hospitality Group, Inc., et al. v. The Americana at Brand, LLC, et al. (Apr. 7, 2015, B247394 [nonpub. opn.].) That litigation is relevant to the current appeal only insofar as it shows that Linde represented Primo, an undisputed fact.

3. Following a Second Appeal, the Appellate Court Orders Reassessment of the Priority of Liens Including Attorney Liens from the Earlier Litigation
4.
Following the judgment in the Primo/Americana lawsuit, litigation ensued concerning the distribution of the 2012 judgment. The trial court issued a postjudgment order establishing the priority of liens, and several judgment creditors appealed from the judgment.

In Primo Hospitality Group, Inc. v. The Americana at Brand, LLC (Nov. 17, 2017, B271188) [nonpub. opn.], Division Five of this court considered the priority of liens among numerous entities, including Americana and attorneys representing Primo. In its disposition, the appellate court directed the trial court to “enter a new and different order exercising its discretion to establish lien priorities within legal limitations consistent with this opinion, including: (1) no attorney lien should be reduced or denied for failure to file a UCC financing statement with the Secretary of State, and (2) in exercising its discretion, the trial court may rely on applicable equitable considerations other than equitable setoff.” (Ibid.)

5. In Compliance with the Court of Appeal’s Direction, the Trial Court Issues an Order Determining the Priority of Liens
6.
In May 2019, the trial court issued an order evaluating the lien priorities (the Order). The Order is central to the current appeal. Americana contends Linde sued it because of Americana’s compliance with the Order.

The trial court described the Order as “defendants’ [including Americana’s] motion for entry of an order consistent with November 17, 2017 Court of Appeal opinion.” (Capitalization omitted.) The trial court described Linde as a “responding party,” but did not adjudicate Linde’s right to any of the proceeds from the portion of the judgment awarded to Primo.

The trial court described 540 Hewitt Subsidiary, LLC (Hewitt) as a lessor to Primo, who was successful in litigation with Primo unrelated to the Primo/Americana litigation. Primo appealed the judgment in Hewitt’s favor, and the appellate court affirmed the judgment.

Because the trial court’s ruling with respect to Linde is central to the parties’ respective arguments as to the anti-SLAPP motion before us, we quote that ruling in its entirety: “The Linde Law Firm represented Primo in the appeal of this matter, from March 2013 to December 2014. The Linde Law Firm seeks payment for 26 hours of work and $9,555 in costs, totaling $23,855.

“[Several entities] object to the Linde Law Firm’s participating in the instant proceedings. ‘Appellate courts have consistently held that the trial court in the underlying action has no jurisdiction to determine the existence or validity of an attorney’s lien on the judgment.’ (Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1173.) ‘After the client obtains a judgment, the attorney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount of the lien, and to enforce it.’ (Ibid.) The parties may allow the trial court to adjudicate a contractual lien in the underlying case without objection. (Brown v. Superior Court (2004) 116 Cal.App.4th 320, 332.) However, ‘[w]hen a party—be it the plaintiff client or a judgment creditor deemed a party for purposes of an application under the judgment lien statutes—objects to the adjudication of the attorney lien claim in the underlying action, the fundamental rule set forth in Carroll and its predecessors applies: Any order within the underlying action purporting to affect the attorney lien, whether positively or negatively, is void.’ (Id. at pp. 332–333.)

“The Linde Law Firm contends that [several entities’] objection is ineffective because they have already consented to the attorney lien claims being adjudicated in these proceedings. The Linde Law Firm argues that objectors may not pick and choose which attorneys can or cannot participate in the proceedings. However, the Linde Law Firm offers no legal support for its position. In any event, neither Carroll nor Brown sets forth such an exception to the rule that, once a party objects, the trial court is without jurisdiction to adjudicate an attorney’s lien claim. The court therefore denies the Linde Law Firm’s request for an order adjudicating its lien claim.”

The Order required Americana to disgorge money it received in the judgment in the initial litigation against Primo and to pay that money to Novian and Hewitt. The Order does not reflect any consideration of Linde’s request for $23,855.

7. Linde Files an Independent Action
8.
After the trial court issued its Order denying Linde’s request to adjudicate Linde’s lien on the judgment, Linde sued Americana, The American Insurance Company (American Insurance), and Primo alleging causes of action for “quantum meruit/declaratory relief” against Primo. Linde also alleged causes of action for foreclosure of lien, and money had and received against Americana and American Insurance.

Linde alleged that in March 2013, Linde and Primo entered into a contract requiring Linde to represent Primo in an appeal against Americana. Linde further alleged that its written contract with Primo gave Linde a lien on any recovery in Primo’s lawsuit against Americana and that Linde’s lien is in the amount of $23,855. According to the complaint, Primo’s recovery “is being held by” Americana or its insurer, American Insurance. Finally, Linde averred Americana or American Insurance “received money that was intended to be used for the benefit of” Linde.

Linde wrote Americana’s counsel asking if it would accept service of the complaint. Americana’s counsel declined to accept service stating that the claim against Americana was frivolous. Americana’s counsel further stated, “We are under a court order to pay it as directed . . . .”

9. Primo’s Answer
10.
The “quantum meruit/declaratory relief” cause of action identified Primo as the sole defendant. Primo admitted that it owed Linde $23,855. Primo stated that it “has not recovered its award” in Primo Hospitality Group, Inc. v. The Americana at Brand, LLC, et al. (Super. Ct. Los Angeles County, 2012, No. BC432109). Primo alleged on information and belief that Americana or American Insurance was holding the award.

11. Americana’s anti-SLAPP Motion and Opposition
12.
Americana brought a special motion to strike Linde’s causes of action for foreclosure of lien and money had and received, the only causes of action alleged against Americana. Americana argued that these claims “arise out of an ‘act in furtherance of [its] right of petition’ as protected under the anti-SLAPP statute and [Linde] cannot show a probability of prevailing on [its] claims against [Americana].” Americana argued that the anti-SLAPP statute applied because Linde’s claims arise out of Americana’s “compliance with a court order.”

In a declaration in support of Americana’s anti-SLAPP motion, Americana’s counsel stated that Americana “paid Hewitt and Novian as directed by the Court’s May 21, 2019 Order in the Primo Litigation. Per an agreement among the parties, Hewitt and Novian agreed to sums slightly adjusted from those set forth in the May 21 Order.”

Linde opposed the anti-SLAPP motion. Among other things, Linde argued its lawsuit did not arise out of activity or communications protected by the anti-SLAPP statute.

13. The Trial Court Denied Americana’s anti-SLAPP Motion
14.
The trial court denied Americana’s anti-SLAPP motion. The court explained: “The Complaint does not arise from protected activity. The Complaint does not mention the May 21, 2019 order forming the basis for Americana’s argument, and it seeks to establish no liability against Americana for its payment to others of sums that were allegedly owed to Linde. The Complaint merely alleges that Americana owes money to Linde pursuant to a lien, and that Linde has not been paid that money. [Citation.] Such claims do not depend upon the existence of the operative court order, or upon Americana’s actions in response to it, and as such the Complaint cannot be said to ‘arise’ from that order, and does not implicate protected activity under the anti-SLAPP statute.”

DISCUSSION

A. The anti-SLAPP statute
B.
“The Legislature enacted section 425.16 to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

“ ‘Section 425.16, subdivision (b)(1) requires the trial court to engage in a two-step process when determining whether to grant a motion to strike. First, it decides whether defendant has made a prima facie showing that the acts of which plaintiff complains were taken in furtherance of defendant’s constitutional rights of petition or free speech in connection with a public issue. If defendant satisfies this threshold burden, plaintiff must then demonstrate a reasonable probability of prevailing on the merits. On appeal, we review these legal issues de novo.’ ” (Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1047.) In evaluating an anti-SLAPP motion, we may consider the parties’ pleadings as well as affidavits describing the basis for liability. (Symmonds, supra, 31 Cal.App.5th at p. 1104.)

Section 425.16, subdivision (e) defines, in pertinent part, an act in furtherance of speech or petition rights to “include[ ]: (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, . . . or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Section 425.16 requires that courts construe the anti-SLAPP statute broadly. (Symmonds, supra, 31 Cal.App.5th at p. 1103.)

Park, supra, further elucidates how courts evaluate whether a defendant has made a prima facie showing that a plaintiff’s claims arise from an act in furtherance of speech or petitioning rights. Park held that “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) In Park, an assistant professor sued his employer, a university, for discrimination. (Id. at p. 1061.) The university filed an anti-SLAPP motion arguing that the lawsuit was based on the university’s decision to deny Park tenure and the communications surrounding that decision. (Ibid.) In evaluating the anti-SLAPP motion, our high court focused on the elements of Park’s cause of action for discrimination. (Id. at p. 1067.) It explained that the “elements of Park’s claim . . . depend . . . only on the denial of tenure itself and whether the motive for that action was impermissible. The tenure decision may have been communicated orally or in writing, but that communication does not convert Park’s suit to one arising from such speech.” (Id. at p. 1068.)

Park further reasoned: “A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] . . . In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at pp. 1062–1063; see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.”].)

C. Linde’s Lawsuit Does Not Arise Out of Protected Activity
D.
Americana argues it is “being sued by Respondent The Linde Law Firm . . . for a simple, and constitutionally-protected reason: [Americana] complied with a court order—and communicated to Respondent that it would comply with that court order before it did so comply.” (Boldface & italics omitted.) Americana’s argument depends on two showings: (1) Linde is suing Americana because Americana complied with a court order, and (2) compliance with a court order is protected activity under the anti-SLAPP statute. Because Americana cannot demonstrate the first, we need not consider the second. As we shall explain, Americana bases its argument on a false premise.

Although Americana correctly argues that this court may consider evidence beyond the four corners of the complaint, (Symmonds, supra, 31 Cal.App.5th at p. 1104), it repeatedly contends the trial court “expressly rejected” Linde’s right to any distribution of funds for Linde’s services to Primo and Americana. For example, Americana states: The trial court “directed” Americana to pay third parties “and explicitly not to Respondent [Linde]” and “the only reason Respondent [Linde] sued AAB [Americana] at all is because [Americana] was awarded money in the Primo Litigation and then was ordered to give that money to parties other than Respondent.” (Boldface & italics omitted.) Americana also states that the Order “rejected Respondent’s request and ordered AAB [Americana] to give the money to [other parties].” Americana asserts “the Court considered and expressly rejected Respondent’s [Linde’s ] right to have any portion of the Judgment distributed by AAB [Americana] to Respondent—i.e., the Court determined that Respondent had no priority to, and no right to any amount of, the Judgment that was being disposed of by the May 21 Order.” Once more, Americana contends that under the Order, Linde, has “no right” to have Americana “distribute any portion of the Judgment to Respondent.”

Americana’s description of the Order is inaccurate because the trial court did not reject Linde’s request for payment. In the Order, the trial court neither considered nor “expressly reject[ed]” Linde’s request for a portion of the judgment. In fact, the trial court concluded it had no jurisdiction over the matter and made no determination on the merits of Linde’s lien claim. The record does not reveal that any party challenged this ruling on appeal or in a writ proceeding. Simply put, the Order expressly declined to consider Linde’s entitlement, if any, to the money awarded in the Primo/Americana litigation.

As Park requires, we now consider the allegations in Linde’s complaint and readily ascertain that Linde’s causes of action against Americana do not arise from Americana’s compliance with the Order. Park requires this court evaluate the elements of Linde’s causes of action to determine if the protected activity “forms the basis” of Linde’s claims. (Park, supra, 2 Cal.5th at p. 1062; see also Symmonds, supra, 31 Cal.App.5th at p. 1110.) Linde’s claim based on the lien requires Linde to establish the existence of the lien, the amount of the lien, and the viability of the lien. (Cf. Valenta v. Regents of University of California (1991) 231 Cal.App.3d 1465, 1470; Bandy v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 230, 235.) Linde’s claim is rooted in a contract between it and Primo; it is not rooted in the Order itself, or Americana’s subsequent communications with Linde that it would comply with the Order.

The elements of a claim for money had and received are that “ ‘one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.’ ” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.) These elements of Linde’s claim do not depend on the Order, Americana’s compliance with the Order, or Americana’s communications with Linde after the trial court issued the Order. At best, the Order was part of the series of events that may have “triggered” Linde’s causes of action, but those causes of action do not arise from Americana’s compliance with the Order. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)

Americana analogizes the present case to Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141 (Thayer). The analogy is not apt.

Thayer, a case predating Park, supra, involved fraud, unfair business practices and related claims brought by the attorney-husband of a class member in prior litigation in which the defendant law firm represented the class and had negotiated a settlement. Plaintiff asserted that the defendant firm committed fraud in deducting a percentage of his wife’s settlement proceeds and applying it to a fund to be used in a related criminal prosecution. Applying a gravamen of the claims test, the court held that plaintiff’s causes involved activity protected by the anti-SLAPP statute. (Thayer, supra, 207 Cal.App.4th at pp. 150, 154.)

We fail to see how Thayer applies to Linde’s claims here. Linde’s claims concern Americana’s failure to pay Linde money allegedly due under a lien and are not based on an attorney’s alleged fraud in representing a spouse in prior litigation. (Cf. California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037 [lawsuit against an attorney who disbursed settlement funds without notifying medical lien holder did not fall within the ambit of the anti-SLAPP statute].) The failure to pay money is not an act in furtherance of the right of petition or free speech.

In sum, because Americana fails to demonstrate that Linde’s claims fall within the purview of the anti-SLAPP statute, we need not consider whether Linde can demonstrate a probability of prevailing on the merits of those claims. (Symmonds v. Mahoney, supra, 31 Cal.App.5th at pp. 1103–1104 [“ ‘ “[I]f the defendant does not meet its burden on the first step, the court should deny the motion and need not address the second step.” ’ ”].) In so holding, we express no opinion on whether Americana is a proper defendant or whether Americana’s compliance with a court order would be a defense to Linde’s claims. We hold only that the causes of action in Linde’s complaint for foreclosure of lien and money had and received do not arise out of activity protected by the anti-SLAPP statute.

DISPOSITION

The order denying The Americana at Brand LLC’s special motion to strike pursuant to Code of Civil Procedure section 425.16 is affirmed. The Linde Law Firm is awarded its costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.