Irene Basistei v. Erik Malek et al.

Plaintiff asks the court to take judicial notice of eight filings from prior legal proceedings involving Plaintiff and Defendant, submitted as exhibits to the request. Plaintiff also asks the court to make several findings based on these documents. No specific basis for taking notice of any individual document is identified. This request is denied as not relevant to the material issue before the court on this motion.

Plaintiff also asks the court to take judicial notice of four published California court decisions and to make findings based on those decisions. No specific basis for taking notice of these decisions is identified. The court denies this request as well as being not relevant to the material issue before the court on this motion—whether the complaint is subject to being struck under Code of Civil Procedure section 425.16.

LEGAL STANDARDS FOR ANTI-SLAPP MOTIONS

Code of Civil Procedure section 425.16 authorizes a person to bring a special motion to strike allegations “arising from any act . . . in furtherance of [his or her] right of petition or free 15 speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The special motion to strike is also referred to as an “anti-SLAPP” motion.

Courts evaluate anti-SLAPP motions using a two-step analysis. (Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1116.) “First, the moving defendant must identify ‘all allegations of protected activity’ and show that the challenged claim arises from that activity.” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 934, citations omitted.) “Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.’ Without resolving evidentiary conflicts, the court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.’” (Ibid.)

First Step: Protected Activity

“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51 (Collier).) Examples of protected activity 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 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, subd. (e).)

“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.’” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.)

Second Step: Probability of Prevailing

The plaintiff meets the burden of showing a probability of prevailing by demonstrating “‘that the [challenged claims are] 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.’” (Soukup v. Law Offices of Herbert Hafif (Soukup) (2006) 39 Cal.4th 260, 291 [quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548].) The “plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Ibid.)

A plaintiff must show that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) While the burden on the second prong belongs to the plaintiff, in determining whether a party has established a probability of prevailing on the merits of his or her claims, a court considers not only the substantive merits of those claims, but also all defenses available to them. (Traditional Cat Assn., Inc. v.

Gilbreath (2004) 118 Cal.App.4th 392, 398.) Affidavits or declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative, or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 (Gilbert); Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714 (Dwight R.).) On the second step of the anti-SLAPP analysis, a plaintiff seeking to demonstrate the merit of the claim may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. (See Monster Energy Co. v.

Schechter (2019) 7 Cal.5th 781, 788.)

In order to demonstrate a probability of prevailing, the plaintiff must also produce admissible evidence sufficient to overcome any privilege or defense the defendant has asserted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323 (Flatley); (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 819-821 (Bergstein).)

DISCUSSION

First Cause of Action

If the complaint is construed as intending to state a cause of action for malicious prosecution, as both sides assume in their papers, then the first prong of the analysis is satisfied as to the first cause of action. Every “Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti- SLAPP statute.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.)

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; see also CACI, No. 1501.) The elements for the cause of action are also stated in Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422 (Robinzine): “To establish a cause of action for malicious prosecution, the plaintiff must prove the prior action was: (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice.”

Plaintiff cannot meet her burden under the second prong to show a probability of prevailing on a malicious prosecution cause of action. This cause of action is based on a crosscomplaint Defendant filed in case no. 19CV353464. At most, there is evidence before the court of a termination of that portion of the litigation in Plaintiff’s favor, as Defendant eventually dismissed his cross-complaint with prejudice. (See Long Beach Grand Prix Assn. v. Hunt (1994) 25 Cal.App.4th 1195, 1198 [For purposes of res judicata, a voluntary dismissal with prejudice is the equivalent to a judgment on the merits in favor of the defendant who was dismissed].)

Plaintiff’s evidence (declarations from Plaintiff, from her former attorney, from her current attorney, and from two friends of Plaintiff) does not establish either that the cross- 17 complaint was initiated or continued without probable cause, or that it was initiated with malice. Declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative, or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (See Gilbert, supra, 147 Cal.App.4th at 26 and Dwight R., supra, 212 Cal.App.4th at 714.)

This action appears to be an attempt to undo Judge Manoukian’s November 21, 2023 order in case no. 19CV353464, and the resulting written settlement agreement, signed by Defendant the same day Judge Manoukian issued his order (Plaintiff had already signed it in June of 2023). (See exhibits E and F to the declaration of Elizabeth Pappy.) Among other things, that order addressed a dispute between the parties as to whether a binding oral settlement agreement was reached at a mandatory settlement conference before Judge Pro Tem Doris Suh.

That is the same settlement conference referenced in the present complaint. Judge Manoukian found that the “terms as recorded” by Plaintiff’s counsel William Dresser on Zoom during the settlement conference (Plaintiff’s same counsel in this action) “were not intended to be the final terms as the parties continued to go back and forth with revisions of the settlement agreement. . . . It seems that plaintiff did agree to modify the reference to Civil Code § 1542 but otherwise did not agree to any terms concerning confidentiality and non-disparagement.

Counsel for defendant is holding the settlement funds in trust in a State Bar IOLTA account but refuses to disperse them until plaintiff signed a draft prepared by defense counsel which contained the non-disparagement and confidentiality clauses.” Judge Manoukian granted Plaintiff’s motion to enforce settlement agreement, “thereby leaving the parties free to disparage one another into perpetuity.” The court denied Plaintiff’s motion for sanctions. (See exhibit E to the Pappy declaration,) Plaintiff did not move for reconsideration of that order.

Nor did Plaintiff appeal the order.

The written settlement agreement states that it “contains the entire agreement between the parties hereto and no promise, inducement or agreement not expressly contained herein has been made.” (See exhibit F to the Pappy declaration.) The written settlement agreement also contains a waiver and release by both parties of all claims known or unknown. That would include any claim that Defendant had filed a cross-complaint in bad faith in that action or had failed to make a timely settlement payment under a previous, oral version of a settlement agreement that (1) Judge Manoukian expressly found did not constitute the final agreement between the parties, and (2) was superseded by the written settlement agreement.

Plaintiff’s counsel could not reasonably believe that the current lawsuit was not barred by the settlement agreement in case no. 19CV353464. Plaintiff cannot ignore the waiver and release language in the written settlement agreement she signed. Plaintiff’s opposition fails to address the effect of the waiver and release on the current lawsuit, further demonstrating that she cannot show a probability of prevailing. (Flatley, supra, 39 Cal.4th at 323 and Bergstein, supra, 236 Cal.App.4th at 819-821.)

Second Cause of Action

The second cause of action fails to identify the breached contract or state whether it was written or oral. Reading the complaint as a whole, the second cause of action can be construed as based on an alleged oral settlement agreement reached at “at a judicially supervised settlement conference.” (See complaint at ¶¶ 15-17.) The second cause of action is at least a “mixed” cause of action for purposes of the first prong of the analysis, as it is based on an alleged contract formed at a judicial proceeding and/or an official proceeding authorized by 18 law, under Code of Civil Procedure section 425.16, subdivision (e)(1). (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 [“When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.”].) So-called “mixed” causes of action are still subject to an anti-SLAPP motion.

To properly state a breach of contract claim, a plaintiff must allege: 1) the existence of a (valid) contract; 2) Plaintiff’s performance or excuse for nonperformance; 3) Defendant’s breach, and; 4) damage to Plaintiff resulting from that breach. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.)

Plaintiff cannot show a probability of prevailing on the second cause of action. As alleged, the second cause of action can only reasonably be construed as alleging a breach of an oral agreement reached “at a judicially supervised settlement conference.” (See complaint at ¶¶ 15-17.) The evidence before the court establishes that this alleged oral agreement was determined not to be the final agreement between the parties in case no. 19CV353464. As already discussed, the actual final settlement agreement (the written agreement signed by the parties) contains waiver and release language that clearly bars the second cause of action here.

Plaintiff’s opposition fails to address the waiver and release language in the written agreement, or the fact that the written agreement superseded any prior oral agreement, demonstrating that she cannot show a probability of prevailing. (Flatley, supra, 39 Cal.4th at 323 and Bergstein, supra, 236 Cal.App.4th at 819-821.)

Evidentiary Objections

Defendant’s objection to the entirety of the Anthony Pinelli declaration is overruled. Defendant’s objections to paragraphs 4-16 of the declaration of Christina Howard and the attached exhibits are sustained. Defendant’s objections to paragraphs 4-21 of the declaration of Tara Gilad are sustained. Defendant’s objections to paragraphs 9-11, 13, 14, 17-29, 32, 36- 38, and 40-46 of the declaration of Plaintiff’s counsel William Dresser, and to attached exhibits 008, 009, 010, 011, 013, 218, 219, 221, and 501 are sustained. The objections to paragraphs 5 and 6 are overruled. Defendant’s objections to paragraphs 6-25, 28-31, 34-54, and 56-117 of Plaintiff Basistei’s declaration are sustained, as are the objections to paragraphs 119-2006.

Attorney Fees

The prevailing defendant on a special motion to strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) The purpose of this feeshifting provision is both to discourage meritless lawsuits and to provide financial relief to the SLAPP lawsuit victim. “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 364 [rejecting due process and equal protection challenges to provision].)

Section 425.16, subdivision (c) is ambiguous as to what “fees and costs” are recoverable, but legislative history shows it was it was intended to allow only fees and costs incurred on the motion to strike itself and not the entire litigation. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; see also Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 [A prevailing defendant on an anti-strategic lawsuit against public participation (SLAPP) motion may recover attorney fees and costs only on the anti-SLAPP motion, not the entire suit.].) 19

Defendant has not submitted any declarations describing the attorney fees and costs incurred in bringing the present motion. The court will therefore reserve the issue of the mandatory fee award until Defendant brings a noticed motion for attorney fees (if he chooses to do so).

CONCLUSION

Plaintiff’s request for judicial notice is denied.

Defendant’s special motion to strike is granted as to both the first and second causes of action.

The court will not rule on any mandatory award of attorney fees and costs to Defendant unless and until Defendant files a noticed motion for attorney fees and costs under Code of Civil Procedure section 426.16, subdivision (c).

The court will prepare the order.

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