Case Number: 19STCV40383 Hearing Date: January 21, 2020 Dept: 34

SUBJECT: Anti-SLAPP Motion

Moving Party: Defendants Ibiere Seck and Seck Law, P.C.

Resp. Party: Plaintiffs The Cochran Firm California and Dunn Law, APC dba “The Cochran Firm California”

Defendants’ anti-SLAPP motion is GRANTED.

BACKGROUND:

This is an action for declaratory relief and abuse of process brought by a law firm, The Cochran Firm California, against an attorney who previous worked at the firm, Ibiere Seck. Plaintiffs, The Cochran Firm California and Dunn Law, APC dba “The Cochran Firm California,” allege that Ibiere Seck departed the firm as of December 31, 2018, taking certain clients previously retained by Plaintiffs with her in her private practice. Plaintiff assert that “the need for declaratory relief presented herein pertains to those cases and clients that Seck did not take with her, and pertains to a case originally retained by [Plaintiffs], that remained with [Plaintiffs] after Seck’s departure from [the firm], styled Reddick v. LACMTA, Case No. BC660135.” (Complaint, ¶ 1.)

On November 7, 2019, Plaintiffs filed a verified complaint against Defendants Ibiere Seck and Seck Law, P.C. for (1) declaratory relief; and (2) abuse of process. Plaintiffs seek:

“(1) A Declaration that a December 13, document titled ‘Memorandum of Understanding’ (Exhibit A) does not create a valid fee-sharing agreement between COCHRAN and SECK in the Reddick matter because client referenced in ‘Memorandum of Understanding’ was never informed of any purported fee sharing agreement between SECK and COCHRAN, and did not consent in writing, to any fee sharing agreement, as required by Rules Prof. Conduct, Rule 2- 200;

(2) A Declaration that in the Reddick matter, that SECK does not have the legal authority to assert a lien on the proceeds of that case, on the grounds that SECK, as a discharged employee of COCHRAN, does not have, and never has had, a contract for the provision of legal services with John Reddick, the plaintiff in the Reddick matter, (hereinafter referred to at ‘PLAINTIFF REDDICK’), who is, and always has been, a client of COCHRAN.” (Complaint, ¶ 1.)

On December 13, 2019, Defendants Ibiere Seck and Seck Law, P.C. filed the instant special motion to strike pursuant to Code of Civil Procedure section 425.16 (“anti-SLAPP motion”), as to the second cause of action for abuse of process.

ANALYSIS:

A. Legal Standard

The California Supreme Court recently summarized the showings and findings required for a motion under Code of Civil Procedure section 425.16(b).

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity 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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396; see also Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-151.)

B. Discussion

1. The Anti-SLAPP motion is Not Procedurally Defective

Plaintiffs’ argument that the anti-SLAPP motion is procedurally defective is frivolous. Plaintiff argues that 1) Defendants were required to meet-and-confer before filing this motion, and 2) there is no Proof of Service attached to the motion. Both arguments are factually incorrect. (Opposition, p. 3:2-13.)

First, under the applicable provision of the Code of Civil Procedure, there is no meet-and-confer requirement prior to the filing of an anti-SLAPP motion. In fact, the Code of Civil Procedure specifically exempts an anti-SLAPP motion from the meet-and-confer requirements generally applicable to motions to strike. (CCP § 435.5(d)(3).)

(The Court notes, parenthetically, that both parties mis-cite the applicable provision of the Code of Civil Procedure regarding meeting and-conferring prior to filing a motion to strike. Plaintiffs cite it as “§§435.435.5.” (Opposition, p. 3:7.) Defendants cite it as “§435.35.” (Reply, p. 2:8-9.) The correct citation, as noted above, is CCP § 435.5.)

Second, Plaintiffs state that “this motion was never served on counsel for plaintiffs. The motion itself contains no proof of service, and there is no proof of service on file, . . .” (Opposition, p. 3:10-11.) This is incorrect. The motion filed with the Court contains a Proof of Service indicating that the anti-SLAPP motion was served on Plaintiffs’ counsel on December 13, 2019.

2. Defendants have Met their Burden to Show that the Second Cause of Action for Abuse of Process arises from Protected Activity

In determining whether a defendant seeking to strike a claim under the anti-SLAPP statute has made a prima facie showing that the cross-complainant’s action arises from activity protected by statute, the critical consideration is whether the plaintiff’s cause of action itself, and the act which the plaintiff complains of, is based on an act taken by defendant in furtherance of his or her right of petition or free speech. (See, e.g., Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “The anti-SLAPP statute’s definitional focus is not on the form of the [cross-complainant’s] cause of action but, rather, the [cross-]defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [emphasis in original].)

In Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057, the court considered the relationship a defendant must show between the plaintiff’s claims and the protected speech. (Id. at p. 1062.)

“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.” [Citation.] “[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.” [Citation.] 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.] “The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .” [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id. a pp. 1062-1063 [italics in original].)

The anti-SLAPP statute is to be broadly applied and includes four categories of protected conduct:

“(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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, 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.” (Code Civ. Proc., § 425.16(e).)

“The litigation privilege states simply that ‘A privileged publication or broadcast is one made … [i]n any … judicial proceeding . . . .’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 737 [citing Code Civ. Proc., §47(b)].) The litigation privilege “enshrines a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceedings.” (Ibid.) “‘Communications with “some relation” to judicial proceedings” are ‘absolutely immune from tort liability’ by the litigation privilege.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 [quoting Rubin v. Green (1993) 4 Cal.4th 1187, 1193].)

“Courts have held that the litigation privilege precludes an action against a party who wrongfully levies upon assets in connection with litigation.” (Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal. App. 4th 1283, 1294.)

The scope of applicability of the litigation privilege and the anti-SLAPP statute are not necessarily the same, but courts have referred to the privilege for guidance in ascertaining the scope of the anti-SLAPP statute. “[T]he litigation privilege and the anti-SLAPP statute are substantively different statutes that serve quite different purposes….” (See Flatley v. Mauro (2006) 39 Cal. 4th 299, 322-24; but see Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 617 [anti-SLAPP statute is coextensive with the definition of the litigation privilege].)

Defendants argue that “the ‘wrongful’ activity that purportedly gives rise to the asserted liability are the simple acts of sending an e-mail to Mr. Nebenzahl, informing him of a lien on the settlement proceeds from the Underlying Case, and then sending the November 1, 2019 letter seeking confirmation that Plaintiffs would adhere to the MOU with respect to the settlement sums from the Underlying Case.” (Motion, p. 6:17-20.) Defendants assert that “as both the October 11, 2019 e-mail to Mr. Nebenzahl and the November 1, 2019 letter to Plaintiffs were (a) written statements that were (b) made in connection with an issue under consideration or review by a judicial body (i.e., in connection with the Underlying Case, which was under consideration by the Los Angeles Superior Court), and as these statements are the basis for the challenged Cause of Action for Abuse of Process, it is clear that Plaintiffs’ claim arises from protected activity. (Id. at p. 6:20-25.)

Defendants also maintain that “all the alleged conduct of Defendants arises from communications that occurred in connection with the Underlying Case and Ms. Seck’s former representation of John Reddick and thus it is clear such communications are protected by the litigation privilege — and this, in addition to independently satisfying Section 425.16, subd. (e)(2), provides sufficient basis to find that the first prong of the anti-SLAPP analysis has been fulfilled.” (Id. at p. 7:8-12.)

In opposition, Plaintiffs argue that the first prong of this analysis is not satisfied because “the act upon which Plaintiff’s second cause of action is based is the Defendant Seck’s illegal filing of a lien against the proceeds of a plaintiffs’ case, which was undertaken in violation of the Rule 2-200 of the California Rules of Professional Conduct.” (Opp., p. 4:6-9.) Plaintiff maintains that “this is not anywhere near the type of protected speech contemplated by the anti[-]SLAPP statute, and as such, this Motion is entirely without merit.” (Id. at p. 4:9-11.)

The complaint contains the following allegations that form the basis of the abuse of process claim:

· “Following the settlement of the Reddick matter, a substantial dispute arose between COCHRAN and SECK over the parties’ respective rights and obligations under the December 13, 2018 ‘Memorandum of Understanding,’ (Exhibit A) which underlies the instant action for Declaratory judgment. This became apparent when SECK asserted a lien against the proceeds of the Reddick matter, which was sent to defense counsel in the form of an email dated October 12,2019, a true and correct copy of which is attached herein as Exhibit B.” (Complaint, ¶ 13.)

· “On October 12, 2019, SECK informed defense counsel via an electronic mail titled “Notice of Attorney Lien”, advising defense counsel, who represents LACMTA, as follows: Please be advised that Seck Law, P.C., has an attorney lien on the Reddick matter. (Exhibit B).” (Id. at ¶ 18.)

· “In a written correspondence sent via facsimile and U.S. Mail on October 14,2019, a true and correct copy of which is attached herein as Exhibit C, PLAINTIFF REDDICK personally informed SECK that she had no legal standing to place a lien on the proceeds of his case, and implored her to withdraw her lien. (Id.) In this correspondence, PLAINTIFF REDDICK, citing the authority of Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168, 1172 informed SECK that California law requires a contract between the attorney and client in order for that attorney to assert a lien over case proceeds, and because no such contract exists between SECK and PLAINTIFF REDDICK, implored her to withdraw her lien on the proceeds of his case. (Id.) Additionally, citing the authority of Trimble v. Steinfeldt (1986) 178 Cal.App. 3d 646, 651-52, among other case authorities, the letter informed SECK of the long line of case authorities that have repudiated similar attempts by discharged attorneys with no contractual rights to as to assert liens against a former law firm or client. (Id.) Finally, the letter informed SECK that her lien was additionally improper because PLAINTIFF REDDICK did not consent to, nor was he aware of, any contemplated fee sharing 9 agreement between SECK and COCHRAN, as is required by Rule 2-200 of the California Rules of Professional Conduct. (Id., at p. 2). SECK disregarded PLAINTIFF REDDICK’S letter and has not withdrawn her lien to the present day.” (Id. at 19.)

· “In a November 1,2019 correspondence, a true and correct copy of which is attached herein as Exhibit D, with her lien still in place, SECK informed COCHRAN that unless COCHRAN provided her with a signed letter acknowledging SECK’S legal interest in the attorneys’ fees in the Reddick matter, that she would refuse to withdraw her lien. (See Exhibit D).” (Id. at ¶ 20.)

For the abuse of process claim itself, Plaintiffs allege:

· “Rather than withdraw her illegal lien, SECK instead attempted to secure from COCHRAN a signed document recognizing her lien’s nonexistent legal validity as a condition of her withdrawal of her illegal lien. At this point SECK knew, or through the exercise of the most minimal diligence, should have known, that her insistence that COCHRAN somehow acknowledge the legal validity of a[n] invalid legal instrument was tantamount to insisting that COCHRAN acquiesce to her illegal assertion of the lien as a condition of her withdrawal of the invalid lien. As such, SECK’S continued efforts to effectively extort COCHRAN into acknowledging her invalid lien as a condition for SECK’S withdrawal of said lien, was undertaken with the ulterior motive of using the legal process, in the form of the improper assertion of a lien by a licensed attorney, for a purpose which SECK knew, or through the exercise of the most minimal diligence, should have known, was contrary to the California Rules of Professional Conduct. Due to SECK’S steadfast refusal to withdraw her lien, notwithstanding PLAINTIFF REDDICK’S written request, and notwithstanding the overwhelming legal authorities demonstrating her lack of entitlement to the assertion of such a lien, COCHRAN was forced to incur substantial attorneys’ fees and legal costs to institute the present action, and hereby seeks entitlement to reimbursement for these attorneys’ fees and costs.” (Id. at ¶ 27.)

The Court finds that abuse of process claim in the complaint is based on written statements made in connection with an issue under consideration or review by a judicial body, thus protected by the anti-SLAPP statute. As Defendants note, no lien was actually filed; Defendants simply sent an email to opposing counsel indicating that they would be asserting a lien on the attorneys fees portion of Reddick’s settlement.

The e-mails and letters between counsel are written statements regarding the allocation of settlement proceeds that was at issue under consideration by the court overseeing the BC66013 case. Defendants have met their initial burden of establishing that the statements made that give rise to the abuse of process claim are protected.

As such, the burden now shifts to Plaintiffs to show that they have a probability of prevailing on the merits of any of their theories against Defendants.

3. Plaintiffs have not met their Burden to Show that they have a Probability of Prevailing on the Merits

The Memorandum of Points and Authorities accompanying Plaintiffs’ opposition is only 2 pages long. The only evidence attached to their Opposition is a 2-paragraph declaration by Brian Dunn which addresses alleged procedural defects in the anti-SLAPP motion.

Plaintiffs have not met their burden to show that they have a probability of prevailing on the merits – in fact, they have not even addressed this issue in their opposition. Instead, they have chosen to only oppose the motion as to the first prong. (See Opp., p. 4:6-13.)

The Court GRANTS Defendants’ anti-SLAPP motion.

4. Request for Sanctions

Under Code of Civil Procedure section 426.16(c)(1), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”

Defendants state that they “will also later move for an order awarding attorneys’ fees and costs incurred with respect to this Motion.” (Motion, p. 2:14-15.)

The issue of attorneys’ fees and costs will be addressed by the Court after receiving a noticed motion by the prevailing party.