James B. House vs. Gregory Atchley et al

MOTION TO STRIKE (ANTI-SLAPP)

Legal Standard

Code of Civil Procedure section 425.16 provides, in relevant parts:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b)(1) 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.

(2) In making its determination, the Court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the Court determines that the Plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (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 . . . . [Emphasis added.] Code Civ. Proc. § 425.16.

“Resolution of an anti-SLAPP motion involves two steps. First, the Defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. [Citation.] If the Defendant makes the required showing, the burden shifts to the Plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation, fn.] The Court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the Plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the Plaintiff’s evidence as true, and evaluates the Defendant’s showing only to determine if it 5

defeats the Plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.

Analysis

First Prong: Arising From Protected Activity

“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.] ‘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 the Defendant supply those elements and consequently form the basis for liability.” Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063.

Litigation privilege

Under Civil Code section 47(b), a publication or broadcast made in a judicial proceeding is privileged.

The litigation privilege, codified in Civil Code section 47, applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the Courtroom and no function of the Court, or its officers is involved. Albertson v. Raboff (1956) 46 Cal.2d 375, 381. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214.

The principal purpose of the litigation privilege is to afford litigants and witnesses the utmost freedom of access to the Courts without fear of being harassed subsequently by derivative tort actions. Silberg, supra, 50 Cal.3d at 213. To achieve this purpose, Courts have given the litigation privilege a broad interpretation. Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241. Other purposes underlying the litigation privilege include the promotion of the effectiveness of judicial proceedings by encouraging open channels of communication and the presentation of evidence in judicial proceedings; assurance of the utmost freedom of communication between citizens and public authorities whose responsibility is to 6

investigate and remedy wrongdoing; promotion of the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients’ interests; and enhancement of the finality of judgments by avoiding “an unending roundelay of litigation.” Silberg, supra, 50 Cal.3d at 213-214. The privilege is a matter of substantive law and, when applicable, is absolute, because it applies regardless of the communicator’s motives, morals, ethics, or intent. Id. at 216, 220.

The litigation privilege has been held applicable to all torts except malicious prosecution; malicious prosecution actions are permitted because the policy of encouraging free access to the Courts is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied. Silberg, supra, 50 Cal.3d at 215-216, citing Albertson, supra, 46 Cal.2d at 382. The privilege has been held to immunize defendants from tort liability based on theories of abuse of process, intentional infliction of emotional distress, intentional inducement of breach of contract, intentional interference with prospective economic advantage, negligent misrepresentation, invasion of privacy, negligence, and fraud (Silberg, supra, 50 Cal.3d at 215), as well as suits to enjoin tortious conduct, and suits alleging interference with contract and related claims, including unfair competition.

Rubin v. Green (1993) 4 Cal.4th 1187, 1201-1203 (a plaintiff may not plead around the privilege barrier by relabeling the nature of the action).

Here, Cross-Complainants’ complaint is based entirely upon the filing of litigation in the present case and Case No. CU0000595. There are no allegations in the Cross-complaint pertaining to any activity outside of the litigation. The litigation privilege unquestionably applies, thus satisfying the first prong.

Second Prong: Likelihood of Prevailing

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, supra, 1 Cal.5th at 396.

The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense which a complainant must overcome to demonstrate a probability of prevailing. JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522. A complainant cannot establish a probability of prevailing if the litigation privilege precludes liability on the claim. Flatley v. Mauro (2006) 39 Cal.4th 299, 323.

“ ‘To demonstrate a probability of prevailing on the merits, the Plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the Plaintiff’s favor. [Citations.] The Plaintiff’s

showing of facts must consist of evidence that would be admissible at trial. . . . [Citations.]” JSJ Limited Partnership, supra, 205 Cal.App.4th at 1521.

At this second stage, “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.’ ” Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.

In their Opposition, Cross-complainants argue an attorney client relationship was created between them and Birnberg. However, the evidence is such, from day one, it was clear Birnberg was acting solely as James B. House’s attorney, and Cross-complainants were solely in communication with Birnberg because of Birnberg’s representation of House.

Advising Gregory Atchley (“Atchley”) and Wood Structures, Inc. (“WSI”) the results of his research as to whether the law required them to be licensed in California prior to performing work on Mr. House’s project is research done by Birnberg and assertions made in an effort to protect his client, Mr. House. Birnberg’s indication he performed research resulting in an opinion about licensure which could negatively affect not only Mr. House and Mr. House’s litigation against Smith followed by the comment to Atchley and WSI, “I don’t want you to put yourself at risk” is not legal advice nor does it create an attorney-client relationship.

Here, neither Atchley nor WSI retained Birnberg, paid Birnberg, or requested Birnberg perform legal work on their behalf. However, House did retain Birnberg, pay Birnberg, and Birnberg’s investigation into whether having California licensed contractors including whether or not such were independent contractors was very pertinent to protecting Mr. House and Mr. House’s pending litigation against Smith.

Moreover, indicating a document is privileged does not, in an of itself, create an attorney-client relationship. “A writing that reflects an attorney’s impression, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” CCP section 2018.030.

Simply put, the evidence before the Court is such that the Court does not find any reasonable person in Atchley’s and WSI’s shoes would believe Birnberg was, at any point, acting as their attorney. Might they collaterally benefit from Birnberg’s research, opinions and advice? Perhaps. Yet, such, was solely in reference to their work for House and not because Birnberg was hired to provide them advice or work independent of his role as House’s attorney. Such, in and of itself, does not create and attorney-client relationship.

The only plausible inference based on the facts asserted by Cross-complainants is that House hired them to perform work and act in an expert witness capacity. However, the hiring of an expert witness, or, as Cross-complainants put it “participating as part of a person’s litigation team” including having discussions related to strategy, document preparation and confirming the expert has the proper qualifications to do what the attorney and his client hope they can do for a pending litigation does not, by itself, create an attorney-client relationship. Attorneys frequently ask experts to opine on the content of pleadings, discuss strategy and legal opinions with the expert for guidance, and otherwise pay experts for their expertise. Being on a party’s “litigation team” often requires working closely with that party’s attorney; however, such is not equivalent 8

to having an independent attorney-client relationship with that party’s counsel. Hence, the existence of the work product doctrine creating a privilege for such writings and communications that may be had with the expert. Here, Cross-complainants even assert Birnberg informed Atchley he considered their communications work product. See, Cross-Complaint, pg. 5, ll. 15- 18.

Perhaps, the most compelling argument of Cross-complainants is contained in Exhibit 5 to the Cross-complaint – an “opinion letter re license contractor” with “attorney-client privilege” at the top referenced above also referenced in the Declaration of Joel Selik. Although this letter is addressed to Atchley and WSI, it clearly indicates the opinion is being provided based on concerns related to protecting House and House’s litigation. There are references to concerns about House not being on WSI’s workers compensation policy, House being protected from a lawsuit if a worker is injured and sues, that the “permit wants Jim [House] to comply”, that “I interpret this that Jim must contract with someone who is a licensed California Contractor”, etc.

In addition, this correspondence goes on to include reference to what “WSI-Greg and Danny claim” in relation to their positions, how they are charging and whether contracts are consistently labeled. The “bottom line” of this correspondence is to indicate House will need a California contractor and cannot claim WSI and its employees are employees of House. This correspondence much like the other “attorney-client privilege” communications between the parties makes clear Birnberg is, at all times, acting to protect House and does not want the communications discoverable in order to protect his client, House.

Based on the foregoing and there being no likelihood Cross-complainants would prevail in their claims even if opportunity to amend were granted, Birnberg’s Motion to Strike (Anti-SLAPP) is granted with no leave to amend.

Attorney Fees and Costs

Code of Civil Procedure section 425.16 (c) (1) provides, in relevant part: “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs.” “ ‘[The] decisional authority and the plain language of section 425.16, subdivision (c) supports the conclusion that the commonly understood definition of attorney fees ... applies with equal force to section 425.16 and a prevailing defendant is entitled to recover attorney fees if represented by counsel.’ ” Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1208 (italics added), quoting Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524.

At bar, Cross-Defendant has incurred no attorney fees in bringing the motion to strike, because all the work was done by Cross-Defendant on his own behalf. Thus, Cross-Defendant is not entitled to attorney fees. Witte, supra, at 1211.

6. CU0001527 Julie Swan et al vs. James Valentine

On the Court’s own motion, Attorney Jeff Workman’s motions to be relieved as counsel is denied without prejudice for the reasons set forth below. In addition, the Court notes a notice of unconditional settlement was recently filed on April 15, 2026 indicating this motion may now be moot. However, as the Court has not received a notice of withdrawal of motion, the Court is compelled to rule on counsel’s request. 9