2017-00221282-CU-FR

Palmer Law Group vs. Steven R. Burlingham

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Burlingham, Steven R.

Defendant Steven R. Burlingham’s Special Motion to Strike (CCP §425.16) is UNOPPOSED and is ruled upon as follows.

The Court notes that Plaintiff filed a First Amended Complaint after Defendant filed the instant motion. A plaintiff, however, may not avoid a pleadings challenge pursuant to Code of Civil Procedure section 425.16 by amending the challenged complaint before the motion to strike is heard. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280; see also Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054-1056.) The Court orders the First Amended Complaint filed on 2/20/2018 be STRICKEN.

The Court did not consider Plaintiffs’ “objection and opposition” to Defendant’s Supplemental Points and Authorities” served on February 28, 2018 and filed on March 1, 2018. In the opposition, Plaintiffs attempt to argue the merits of the whether the complaint arises from protected activity. Plaintiffs also proffer evidence to support their position. The argument evidence should have been timely raised in opposition to Defendant’s motion, however, Plaintiffs failed to file any opposition to the anti-SLAPP.

The Court also notes that Defendant was served with the summons and complaint two times. The first was served via substitute service on October 27, 2017. (ROA 7.) The second was served via substitute service on December 4, 2017. (ROA 7.) This motion was filed on January 12, 2018. A defendant is only guaranteed a ruling on an anti-SLAPP motion if the motion is filed within 60 days of the service of the complaint. (CCP § 425.16(f).) Thus, the motion is untimely if measured by the first service (by 17 days), but timely if measured by the second service. The Court, however, may entertain a late-filed anti-SLAPP motion in its discretion. (CCP §425.16(f).) The Court’s discretion turns on whether a belated ruling would subvert the anti-SLAPP statute’s purpose of resolving free-speech cases at the earliest stage of the litigation. (See Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775; Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543.) The Court concludes that a ruling on Defendant’s motion would not subvert the purposes of the anti-SLAPP statute. The litigation is in its early stages, and no other motion practice (besides the concurrent

demurrer and motion to strike) has occurred. Thus, the Court will rule on the merits of the motion.

Overview

This is an action for Declaratory Relief, Tortious Interference with Business Relations, and Fraud. Plaintiffs Palmer Law Group, PLC and William W. Palmer’s (collectively “Plaintiffs”) complaint is rambling, at times, and uncertain as to the wrongful acts alleged. As far as the Court can glean, Plaintiffs were retained by Mark Robinson (“Robinson”) for general business matters for Cornerstone Valuation, LLC (“Cornerstone”). Cornerstone is in the unclaimed property recovery business – specifically researching unclaimed assets of a sufficient worth to yield a significant finder’s fee and to contact the owner of the claim, obtain their signature on a Recovery Authorization Contract (“RAC”), assemble a State Controller’s Office Claim Packet (“SCO Claim Packet”) and delivering it to the State Controller’s Office. (Declaration of Mark Robinson, ¶ 3.)

Defendant represented Robinson in his divorce proceedings. Robinson became indebted to Defendant for his legal services. Plaintiffs allege that they performed unclaimed property work on ten projects for Robinson and Cornerstone. Plaintiffs allege that Robinson promised Defendant the same funds that Plaintiffs generated working on the projects, but which Robinson had already promised to pay Plaintiffs. Plaintiffs further allege that Defendant and Robinson made false statements to the State Controller’s Office regarding a claim for Lewis Brisbois Bisgaard & Smith LLP (“Lewis Brisbois”), such that Plaintiffs would not receive their finder’s fee for the work, with the finder’s fee instead being paid to Defendant. Plaintiffs further allege that Defendant attempted to destroy Plaintiffs’ 25+ year relationship with the State Controller’s Office.

Legal Standard

The California legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action that are brought to chill the valid exercise of the constitutional rights to free speech and to petition the government for redress of grievances. (See Rusheen v Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides whether the defendant moving to strike 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 must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 [citations omitted].)

In order to sustain the 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, Defendants only need to make a prima facie showing that Plaintiff’s FAC “arises from” their constitutionally-protected free speech or petition activity. (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Courts are not limited to consideration of the allegations of the pleading on an anti-SLAPP motion, but may consider factual material submitted in support. “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (CCP §425.16(b); Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408.)

“When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.) “While an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity.” (Id. at 382.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id.)

In order to satisfy the second prong, a plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) In considering the second prong, the court “accept[s] as true the evidence favorable to the plaintiff and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Id. citations omitted.)

If the plaintiff’s showing is not sufficient to sustain a favorable judgment, “the claim is supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Id

.)

If the anti-SLAPP is granted, the Court may not grant leave to amend to allege or omit facts demonstrating the complaint is not subject to the anti-SLAPP statute. (Simmons v. Allstate (2001) 92 Cal.App. 4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from [Code of Civil Procedure] section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal. App. 4th 992, 1005.)

Analysis

CCP §425.16(e)(2) provides that a protected speech is “any writing. . . made in connection with an issue under consideration by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Defendant advances that the complaint arises from protected activity because it is predicated on statements made to the State Controller’s Office regarding the Lewis Brisbois claim.

The Court agrees with Defendant. As explained in Robinson’s declaration, on March 1, 2017, Defendant wrote a letter to Timothy Graves, Lewis Brisbois’ managing partner, requesting that he sign the completed SCO Claim Packet. (Declaration of Mark Robinson, ¶ 19, Ex. J.) Mr. Graves signed the SCO Claim Packet and Robinson took the SCO Claim Packet and the RAC to the State Controller’s Office and filed it. (Id., Ex. K.) In early April 2017, Plaintiff attempted to reach Robinson by phone and threatened to sue him. (Id. ¶ 20.) In May 2017, Plaintiff submitted a similar claim packet to the State Controller’s Office representing to the State Controller’s Office that he represented Robinson/Cornerstone. (Id.) The State Controller’s Office first issued a finder’s fee warrant payable to Cornerstone. (Id. ¶ 21.) Plaintiff communicated to the State Controller’s Office that there was an attorney’s fee lien for the fees and costs and had the warrant reissued “C/O” his firm name. (Id.) The claim that he had an attorneys’ fee lien was false. (Id.) The State Controller’s Office issued a check to Plaintiff’s office. (Id. ¶ 23.) Plaintiff claimed one-half of the finder’s fee and remitted one-half to Robinson. (Id. ¶ 24.) Considering this evidence, the Court concludes that the complaint arises from the Lewis Brisbois Claim Packet submitted to the State Controller’s Office.

By failing to oppose the motion, Plaintiff fails to show a probability of prevailing on the merits. Thus, the motion is GRANTED.

This minute order is effective immediately. Defendant shall submit a formal order pursuant to CRC Rule 3.1312 for the Court’s signature.