Albert vs. Tyler Technologies, Inc.

scope of permitted amendment. The motion is denied as to these allegations.

V. Leave to Amend

Plaintiffs have had multiple opportunities to plead viable allegations and have not done so. In addition, they propose no curative amendments in their opposition. Leave to amend is therefore denied.

10:00 AM

12 Albert vs. Tyler Demurrer to Amended Complaint Technologies, Inc. Demurrer to Amended Complaint 2025-01462434 Motion to Appear Pro Hac Vice

Motion to Strike- Anit SLAPP Before the Court are four motions:

1. Defendants State Bar of California (including the Board Members of the State Bar of California), Brandon Stallings, Leah Wilson, George Cardona, Donna Hershkowitz, Suzanne Grandt, Cindy Chan, Benson Hom, Sunly Yap, and Sherell McFarlane’s (collectively, “State Bar Defendants”) demurrer to the second amended complaint (“2AC”) of Plaintiffs Lenore Albert, Chad Pratt, Theresa Marasco, Larry Tran, Ryan McMahon, James Ocon, and Leslie Westmoreland.

2. Defendant Tyler Technologies, Inc.’s (“Tyler”) demurrer to Plaintiffs’ 2AC.

3. The State Bar Defendants’ motion to strike Plaintiffs’ 2AC and portions thereof, pursuant to both CCP § 425.16 and CCP § 436.

4. Beth Petronio’s application for admission pro hac vice.

The Court rules on each motion as set forth below.

The State Bar Defendants and Plaintiffs have filed requests for judicial notice. Tyler has filed a supporting declaration from its counsel, Zachary Timm, that the Court will construe as a request for judicial notice. Plaintiffs have objected to the State Bar Defendants’ and Tyler’s requests for judicial notice. To the extent the Court discusses Plaintiffs’ evidentiary objections in the below rulings, those objections are sustained or overruled accordingly. The Court declines to rule on any objections not discussed on the grounds that the evidence objected to is immaterial to the Court’s rulings.

Similarly, to the extent the Court discusses material in the requests for judicial notice below, the requests are granted (at least as to the existence of the documents and their contents, but not for the truth of any matter asserted therein). The Court declines to take notice of any material not discussed on the grounds that it is immaterial to the Court’s rulings. Finally, Plaintiffs’ multiple requests for the Court to consider late-acquired evidence are denied.

GENERAL BACKGROUND

Before addressing the details of the 2AC as pertinent to each motion, the Court offers the following general summary of Plaintiffs’ allegations.

I. Parties

This lawsuit is brought by seven plaintiffs proceeding in propria persona: Lenore Albert, Leslie Westmoreland, James Ocon, Ryan McMahon, Chad Pratt, Larry Tran, and Theresa Marasco. Albert, Westmoreland, and Pratt are attorneys who were disbarred by the California Supreme Court. (2AC ¶¶ 27- 34, 204-08.) Ocon, Marasco, Tran, and McMahon are non-attorneys who had

some prior relationship with Albert. (Id. ¶¶ 169-79, 181-82, 185-88, 191-95.)

The State Bar Defendants include the State Bar, its attorneys, and officials. Cardona is Chief Trial Counsel, Chan is a hearing officer, Hom is an investigator, Wilson is the former Executive Director, Hershkowitz is the former Interim Executive Director, Grandt is an attorney in the Office of General Counsel, Stallings is a member of the Board of Trustees, and Yap and McFarlane are former employees. (Id. ¶¶ 10-16, 18.) Tyler provided technology services to the State Bar. (Id. ¶ 17.)

II. Disciplinary Allegations

Albert broadly alleges that her disbarment by the California Supreme Court and the preceding disciplinary investigations were retaliation for her prior lawsuits against the State Bar. (Id. ¶¶ 27-32.) Ocon alleges that the State Bar’s disciplinary proceedings against Albert distracted her from working on his technology tour. (Id. ¶¶ 191-95.) Marasco, Tran, and McMahon allege that Albert represented them in pending litigation when Albert was disbarred. (Id. ¶¶ 169-79, 181-82, 185-88.) Westmoreland hired Albert as an attorney when her license was suspended, which resulted in Westmoreland’s disbarment. (Id. ¶¶ 204-08.) Pratt employed Albert to represent him in a lawsuit related to a data breach involving State Bar disciplinary records and has been disbarred. (Id. ¶¶ 7, 164-65.)

III. Data Breach Allegations

In December 2016, Tyler entered a contract to provide software for the State Bar’s case management system, which stored confidential attorney disciplinary records. (Id. ¶ 98.) In May 2021, Tyler licensed to the State Bar a public-facing module referred to as the “Odyssey Portal.” (Id. ¶ 100.)

In February 2022, the State Bar discovered that approximately 322,525 confidential State Bar disciplinary records identifying approximately 191,000 attorneys had been made available online via JudyRecords.com and indexed by Google. (Id. ¶ 71.) As a result, confidential records about State Bar investigations of Albert and Westmoreland were posted on the Internet. (Id. ¶¶ 71-72.)

On March 18, 2022, Albert, acting as counsel, filed Roe v. State Bar of California, OCSC No. 22-01250695, a putative class action asserting claims based on the data breach. (2AC ¶ 50.)

IV. Causes of Action

Plaintiffs’ 2AC contains seven causes of action: (1) Liability under Government Code § 815.6; (2) Negligence; (3) Fraudulent Deceit; (4) Unfair Competition; (5) First Amendment; (6) Fourteenth Amendment; and (7) California Constitutional Claims. The 1st, 2d, 5th, 6th and 7th claims are brought against the State Bar Defendants. The 2d, 3d and 4th causes of action are brought against Tyler.

V.

Procedural History

This case was originally filed in February 2025 and assigned to CX101. The original complaint contained 15 causes of action. It was reassigned to Judge Sherman in CX105, who at the time was presiding over the related Roe v. State Bar matter mentioned above. The plaintiffs then filed a First Amended Complaint (FAC). The State Bar removed the case to federal court on federal question grounds.

The Defendants’ motions to dismiss the FAC were granted with leave to amend. The dismissal ruling of the Magistrate Judge is reported at 2025 WL 2020063. Although that order is not binding in this proceeding, the Court adopts much of its well-reasoned ruling. Rather than repeating in full that reasoning below, the Court cites the portions of the federal court’s order that apply equally here.

Eventually, the 2AC became the operative pleading. The State Bar Defendants moved to dismiss under FRCP 12(b)(6) and filed an anti-SLAPP motion. Tyler moved to dismiss under FRCP 12(b)(6). Magistrate Judge McCormick recommended the fifth through seventh causes of action be dismissed without leave to amend on Rooker-Feldman, res judicata, and quasi-judicial immunity grounds, finding these causes of action were simply an attempt to appeal Albert’s disbarment. He recommended the court decline to exercise jurisdiction over the remaining state law claims. As a result, he didn’t consider the remainder of the State Bar Defendants’ motion to dismiss, Tyler’s motion to dismiss, and the State Bar Defendants’ anti- SLAPP motion. (State Bar RJN, Ex. 43.)

Judge Staton adopted the foregoing Report and Recommendation in part and rejected it in part. She agreed the Rooker-Feldman doctrine deprived the federal court of jurisdiction to hear the fifth through seventh causes of action. However, she concluded that the lack of jurisdiction meant she couldn’t rule on the merits of the res judicata and quasi-judicial immunity defenses. Accordingly, she remanded them for further consideration without reaching the merits. She agreed with the recommendation not to exercise supplemental jurisdiction over the first through fourth causes of action. She also expressly declined to reach the merits of the State Bar Defendants’ anti- SLAPP motion and Tyler’s motion to dismiss. (State Bar RJN, Ex. 45.)

STATE BAR DEFENDANTS’ DEMURRER TO 2AC

The State Bar Defendants’ demurrer to the 2AC is SUSTAINED.

I. Global Arguments

The State Bar Defendants make several arguments that go to multiple causes of action. The Court addresses them first.

A. Exclusive Jurisdiction Over Disciplinary Matters

“[T]he power to discipline licensed attorneys in this state is an expressly reserved, primary, and inherent power of [the California Supreme C]ourt.” (Obrien v. Jones (2000) 23 Cal.4th 40, 48.) “[I]n 1951, the State Bar Act was amended to exclude superior courts and appellate courts from exercising such jurisdiction, leaving the Supreme Court as the sole judicial entity with jurisdiction over attorney discipline. . . . That power is exclusively held by the Supreme Court and the State Bar, acting as its administrative arm.” (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1710; see also Jacobs v. State Bar (1977) 20 Cal. 3d 191, 203.)

Plaintiffs allege repeatedly and at length that the State Bar and its officers or employees acted improperly in investigating and prosecuting disciplinary proceedings against Albert, Westmoreland and Pratt. Plaintiffs expressly demand that Albert, Westmoreland, and Pratt’s licenses to practice law be reinstated. (2AC ¶¶ 255-256.) Insofar as Plaintiffs’ claims are based on investigations and disciplinary actions taken against Albert, Westmoreland, and Pratt, those claims are within the exclusive jurisdiction of the California Supreme Court, and the demurrer is sustained.

Nor is this holding limited to Albert, Westmoreland, and Pratt’s personal claims. As the federal magistrate recognized when ruling on the State Bar Defendants’ motion to dismiss Plaintiffs’ FAC, the remaining Plaintiffs’ claims are “inextricably intertwined” with the attempt to re-litigate the disbarments, particularly Albert’s. (Albert v. Tyler Technologies, Inc. (C.D.Cal. 2025) 2025 WL 2020063, at *5 (“[T]he other claims succeed only to the extent that this Court finds that the state court wrongly decided the issues before it.”).) As noted above, the Plaintiffs other than Albert claim damages flowing from disciplinary actions against Albert. Ocon, for example, alleges that disciplinary proceedings distracted Albert from working on his technology tour, causing him damages. Similarly, Marasco, Tran, and McMahon claim to have been damaged because Albert was disbarred while

she represented them.

Accordingly, the demurrer is sustained as to all claims by all Plaintiffs insofar as they are based on attorney discipline. Specifically, the demurrer is sustained as to count 1 of the first cause of action, count 1 of the second cause of action, and all counts of the fifth through seventh causes of action.

B. Absolute Immunity

The individual State Bar Defendants claim absolute quasi-judicial immunity from damages for their actions. The Court finds they are entitled to claim such immunity.

Under California law, “the State Bar and the Committee of Bar Examiners, as arms of the Supreme Court, and their officials, as officers of the Supreme Court, have been afforded quasi-judicial immunity from civil suits for acts performed in the exercise of their duties.” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 853.) Similarly, under federal law, State Bar staff “have quasi-judicial immunity from monetary damages. Administrative law judges and agency prosecuting attorneys are entitled to quasi-judicial immunity so long as they perform functions similar to judges and prosecutors in a setting like that of a court.” (Hirsh v.

Justices of Supreme Court of State of Cal. (1995) 67 F.3d 708, 715.) Under both California and federal law, “judicial immunity is not overcome by allegations of bad faith or malice.” (Mireles v. Waco (1991) 502 U.S. 9, 11; see also Rosenthal v. Vogt (1991) 229 Cal.App.3d 69, 76 (immunity of State Bar officials “extends to all judicial acts, however motivated and however intrinsically erroneous”).) Finally, “bar associations and their officials charged with the duties of investigating, drawing up, and presenting cases involving attorney discipline have historically enjoyed absolute immunity from damage claims for such functions.” (Greene v.

Zank (1984) 158 Cal.App.3d 497, 508 (emphasis omitted).)

The fifth, sixth, and seventh causes of action—the remaining claims against the individual State Bar Defendants—are all based on the individual State Bar Defendants’ investigation, institution, and prosecution of disciplinary actions against Albert, Westmoreland, and Pratt. Indeed, as the Ninth Circuit Bankruptcy Appellate Panel has already held with respect to Albert’s disciplinary proceedings, “These are prototypical quasi-judicial activities that are protected by such immunity.” (In re Albert-Sheridan (9th Cir. B.A.P. 2024) 658 B.R. 516, 546.)

Nor does it matter that the remaining Plaintiffs aren’t themselves attorneys facing discipline. As the federal court magistrate recognized in recommending dismissal of Plaintiffs’ FAC, “their claims against the State Bar Employees—all of which originate out of Albert’s disbarment—follow from State Bar Defendants’ actions to prosecute and investigate Albert, actions for which Defendants receive absolute immunity from damage claims.” (Albert, supra, 2025 WL 2020063, at *7.)

Accordingly, the demurrer to the fifth through seventh causes of action is sustained as to the individual State Bar Defendants.

C. Res Judicata

The State Bar Defendants also contend that Albert, Westmoreland, and Pratt’s discipline-related claims are barred by the doctrine of res judicata. The Court agrees these claims are barred for the reasons stated in the federal court’s ruling on the State Bar Defendants’ motion to dismiss the FAC. (Albert, supra, 2025 WL 2020063, at *7-*8.) The Court adopts the federal court’s analysis and incorporates it by reference.

In addition, the Court agrees with the federal court that Albert and Westmoreland’s data breach-related claims are not barred by res judicata. (The 2AC expressly excludes any data breach-related claims Pratt might bring.) As the parties are aware from the docket in the Roe matter (No. 22- 01250695), of which the Court takes judicial notice, the class claims in Roe

were struck by Judge Sherman in February 2025. (Roe ROA 365.) As a result, only the named plaintiffs in Roe were parties to the case. Neither Albert nor Westmoreland is named as a party in the Roe case, so its dismissal last winter cannot bind them.

D. Remaining Global Arguments

The Court finds it unnecessary to address the remaining global arguments in order to resolve the demurrer.

II. Claim-Specific Arguments A. Gov. Code § 815.6 (1st COA) 1. Mandatory Duties

“Except as otherwise provided by statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code § 815(a).) Gov. Code § 815.6 provides such an exception: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

Plaintiffs identify four enactments that they contend impose mandatory duties. First, Bus. & Prof. Code § 6001.1 provides: “Protection of the public, which includes support for greater access to, and inclusion in, the legal system, shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.” As the federal court previously (and correctly) held, “This provision does not set forth guidelines or rules for a public entity to follow in implementing an affirmative duty.” (Albert, supra, 2025 WL 2020063, at *8.)

Second, Bus. & Prof. Code § 6007(c)(4) provides: “The State Bar Court shall order the involuntary inactive enrollment of an attorney upon the filing of a recommendation of disbarment after hearing or default. For purposes of this section, that attorney shall be placed on involuntary inactive enrollment regardless of the license status of the attorney at the time.” This statute imposes a mandatory duty to put attorneys on involuntary inactive status when they are formally recommended for disbarment. Confusingly, Plaintiffs contend the State Bar breached this duty by complying with it: they allege the State Bar suspended Albert, but the suspension was improper “because no harm to the public or clients was found.” (2AC ¶ 58.)

In support of this argument, Plaintiffs cite Conway v. State Bar (1989) 47 Cal.3d 1107, which explains: “Under subdivision (c), however, the attorney must be found to have already caused, or be causing, substantial harm, and there must be a reasonable threat such harm will recur or continue.” Absent a showing of such harm, they argue, Albert’s suspension was improper. But as the State Bar Defendants point out in reply, Conway concerned an older version of the statute. The current statutory language says nothing about a showing of substantial harm. Plaintiffs have not alleged a violation of § 6007(c)(4).

Third, Bus. & Prof. Code § 6086.1(b) requires that the State Bar keep disciplinary investigations confidential “until the time that formal charges are filed.” Albert and Westmoreland argue the data breach constitutes a breach of this duty of confidentiality. This argument ignores the timing requirement of the statute. The data breach allegedly took place on or about October 15, 2021, with formal notice of the breach provided in May 2022. (2AC ¶¶ 71- 73.) Albert had already been the subject of three formal disciplinary charges by October 2021, filed in December 2015, September 2016, and May 2018. (State Bar RJN, Ex. 3, at pp. 3-4.) Per the 2AC (¶ 53, at p. 24 (table)), the State Bar filed formal charges against Westmoreland in 2019. The State Bar’s duty

is to keep disciplinary investigations confidential until formal charges are filed. Albert and Westmoreland were formally charged before the data breach occurred. Based on the allegations of the complaint and on judicially noticeable documents, there has been no breach of this duty.

Fourth, State Bar Rule of Procedure 2301 provides that “the files and records of the Office of Chief Trial Counsel are confidential,” and Rule 2302, entitled “Disclosure of Information,” provides that information concerning inquiries, complaints, or investigations is confidential, and sets forth how confidentiality may be waived and documents disclosed. As explained by the magistrate judge, “The rule provides the Chief Trial Counsel and other State Bar officials with considerable discretion and thus does not create a mandatory duty.” (Albert, supra, 2025 WL 2020063, at *9.)

2. Limitations and Claim Presentment

Albert knew of the data breach no later than March 14, 2022, when she filed Government Claims Act forms that preceded the Roe v. State Bar case. (State Bar RJN, Ex. 36.) As a result, she was required to bring her data breach claims, at the latest, within two years of their accrual. (Gov. Code § 945.6(a)(2).) This case was filed nearly three years later, in February 2025. Albert’s data breach-related claims are therefore untimely. Plaintiffs vaguely refer to “some claims” that were tolled by Albert’s bankruptcy and “other claims” that are subject to delayed discovery, but they never connect her bankruptcy or the delayed discovery rule to specific claims, nor do they discuss how long the claims were tolled. Accordingly, the Court finds Albert’s data breach claims are untimely.

Westmoreland is another matter. The State Bar Defendants’ argument that he failed to comply with claim presentation requirements is incorrect. The data breach claim forms identify the named claimants “on his [or her] behalf and all others.” For purposes of the Government Claims Act, the claimant is “the class itself,” and “an individual claim need not be filed for each member of the purported class.” (County of Los Angeles v. Superior Court (2008) 159 Cal.App.4th 353, 367.) While Westmoreland wasn’t named in the forms, he was part of the purported class.

Moreover, because he was an absent member of the purported class until the class claims were dismissed in February 2025, his individual data breach claims are covered by American Pipe tolling. (See American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103.) As a result, his data breach claims are timely.

B. Common Law Negligence (2nd COA)

The State Bar is a public entity. As such, it cannot be liable for common law negligence. (No individual State Bar Defendants are named in the second cause of action.) The State Bar’s demurrer to the second cause of action is therefore sustained. To the extent Plaintiffs argue the second cause of action relies on the same mandatory duties as the first cause of action, the Court refers to the discussion above.

C. Constitutional Claims (5th-7th COAs)

In light of the Court’s conclusion on absolute immunity, the Court does not reach the State Bar Defendants’ individualized arguments about the constitutional claims.

III.

Conclusion

The State Bar Defendants’ demurrer is sustained in its entirety. The Court will address leave to amend below.

TYLER’S DEMURRER TO 2AC

Tyler’s demurrer to the 2AC is SUSTAINED IN PART AND OVERRULED IN PART.

I. Common-Law Negligence (2nd COA) A. Albert

As to Albert, her negligence claim is untimely. The statute of limitations for negligence claims is two years. (CCP §§ 335.1, 339.) Again, Albert knew of the data breach no later than March 14, 2022, when she filed classwide data breach claim forms. This case wasn’t filed until February 2025. Even giving Plaintiffs the benefit of the doubt that this case relates back to a matter filed in September 2024, Albert’s claim against Tyler was filed six months too late.

To get around this, Plaintiffs allege “the statute of limitations was tolled while [Albert] served as class counsel” in Roe v. State Bar. (2AC ¶ 93.) But as Tyler points out in its papers, American Pipe tolling is inapplicable to Albert. Under American Pipe, “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” (American Pipe, supra, 414 U.S. at p. 554.) As class counsel, Albert could not have been a member of the class. (See Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1264.) Indeed, the pleadings in Roe expressly excluded class counsel from the definition of the class. (Timm Decl. Ex. M, at ¶ 144.)

In opposition, Plaintiffs argue Albert is entitled to claim equitable tolling rather than American Pipe tolling, because her duty of loyalty to the putative class prevented her from timely bringing her own claim. They cite Apple Computer, supra, for the proposition that Albert’s duty of loyalty prevented her from bringing a separate individual claim. The federal court correctly rejected this argument in granting Tyler’s motion to dismiss the FAC: “Nothing in Apple Computer, however, suggests that Albert could not have . . . pursued an individual claim against Tyler.” (Albert, supra, 2025 WL 2020063, at *11.)

B. Westmoreland

Timeliness is not an issue for Westmoreland. Tyler nevertheless argues Plaintiffs fail to plead duty and damages. The Court disagrees.

The duty allegations were previously found sufficient by the federal court in its ruling on Tyler’s motion to dismiss the FAC. (Albert, supra, 2025 WL 2020063, at *12.) If they satisfied the more demanding federal pleading standard, they satisfy California’s pleading standard.

The damages allegations also suffice. Tyler cites a handful of federal cases finding damages allegations insufficient, but the federal pleading standard is higher than California’s. In state court, a plaintiff must plead nothing more than ultimate facts. Evidentiary facts can be learned in discovery. Tyler also cites Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739 for the proposition that “nominal damages, speculative harm, and the mere threat of future harm are not actual injury.” (Id., at p. 743.) Jordache, however, was a summary judgment case based on an evidentiary record. The sufficiency of the allegations was not at issue.

II. Fraudulent Concealment (3rd COA)

Plaintiffs allege that Tyler knew of the data breach but fraudulently concealed material facts about it from Albert and Westmoreland. “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th

858, 868.)

In terms of establishing the duty element above, “There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.’” (Stanwood v. Mary Kay, Inc. (N.D. Cal. 2012) 941 F. Supp. 2d 1212, 1221; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) However, “failure to disclose [material facts] is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such facts.” (Id., at p. 337 (emphasis original).)

Here, the alleged relationship between Tyler and Plaintiffs is that Albert and Westmoreland were third-party beneficiaries of the contract between Tyler and the State Bar. (2AC ¶ 113.) Whether a plaintiff is a third-party beneficiary of a contract is ordinarily a question of fact, but here, the contract expressly states, “Nothing in this Agreement is intended to benefit, create any rights in, or otherwise vest any rights upon any third party.” (Timm Decl., Ex. N, at § 18.14 (“No Third Party Beneficiaries”).)

Plaintiffs object to consideration of the contract, but when a complaint relies on a contract, a court may properly take judicial notice of the contract. (See Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 130 (“[T]he Tenants relied on selected portions of the master lease. . . . It was therefore proper here for the trial court to judicially notice the master lease in its entirety.”).) The contract expressly states there are no third-party beneficiaries, and Plaintiffs identify no extrinsic evidence that might bear on the proper interpretation of the contract. Accordingly, Plaintiffs have not adequately pled a relationship giving rise to a duty to disclose.

Moreover, even if Plaintiffs had adequately pled a duty to disclose, they have not pled intent. To be sure, they repeatedly plead that Tyler intentionally concealed facts. But they nowhere plead Tyler’s intent to defraud Albert or Westmoreland. Put another way, they fail to plead that Tyler acted with the intent to induce reliance by Albert or Westmoreland (or even that Tyler knew Albert and Westmoreland existed).

III. UCL (4th COA)

The UCL claim is brought by Albert alone. It appears to the Court that the UCL claim is entirely derivative of the fraudulent concealment claim. It therefore fails for the same reasons.

IV.

Conclusion

Tyler’s demurrer to the second cause of action for negligence is overruled as to Westmoreland. The demurrer is otherwise sustained in its entirety. Again, leave to amend is addressed below.

STATE BAR DEFENDANTS’ MOTION TO STRIKE

The State Bar Defendants’ motion to strike, which consists of both a special motion to strike (or anti-SLAPP motion) and a traditional motion to strike, is granted in part and denied in part.

I. Special Motion to Strike

Section 425.16 of the Code of Civil Procedure provides for special motions to strike, or anti-SLAPP motions, which allow a party to challenge claims (or entire complaints) that arise from protected activity. The Court analyzes an anti-SLAPP motion in a two-step process:

“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.)

A. Step One

Protected activity under section 425.16 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, (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.” (CCP § 425.16(e).)

At step one, the Court considers only whether the activity at issue is protected, not the merits.

1. Claims Related to Attorney Discipline

As discussed above in connection with the State Bar Defendants’ demurrer, the 2AC alleges two bases for liability. First, all Plaintiffs bring claims for relief that ultimately arise from State Bar disciplinary proceedings against Albert, Westmoreland, and/or Pratt. Second, Albert and Westmoreland bring claims for relief arising from a 2021 data breach.

The State Bar is an administrative arm of the California Supreme Court charged with the authority to investigate and recommend to the California Supreme Court discipline against California attorneys. (See Bus. & Prof. Code § 6068.5 (establishing State Bar Court); Rules of the State Bar, Rule 1.2 (“The State Bar acts as the administrative arm of the California Supreme Court in all matters related to attorney admission and discipline in California.”).) Accordingly, attorney disciplinary investigations and subsequent prosecutions are “official proceeding[s] authorized by law” under CCP § 425.16(e)(1) and (e)(2). Insofar as Plaintiffs’ claims arise from attorney discipline matters, the State Bar Defendants meet their step one burden.

Plaintiffs argue their claims “arise from independent administrative, ministerial, and retaliatory misconduct—not protected petitioning activity.” (Anti-SLAPP Opp. at p. 11.) As an example, they argue that Albert alleges the State Bar Defendants illegally retaliated against her by initiating a new disciplinary investigation after she won a judgment against the State Bar in bankruptcy court. They contend: “The protected activity was Albert’s filing and prosecution of the bankruptcy proceeding—not the State Bar's alleged retaliation afterward. Opening a new investigation when paying a judgment is not protected activity.” (Ibid.) To be sure, Albert’s filing and prosecution of a bankruptcy proceeding was a protected activity. But opening a disciplinary investigation was also a protected activity. Whether the disciplinary investigation was improper retaliation is a separate question.

2. Claims Related to Data Breach

Albert and Westmoreland also bring claims arising from the State Bar’s data breach. The State Bar Defendants appear to make no argument that these claims arise from protected activity. Instead, they argue that all claims arise from attorney discipline, which is incorrect. The Court does not see how claims arising from a data breach would be protected by the anti-SLAPP statute. The State Bar Defendants fail to meet their step one burden on the data breach claims.

B. Step Two

Plaintiffs’ claims arising from attorney discipline proceed to step two of the analysis. At step two, “the plaintiff need only have stated and substantiated a legally sufficient claim. Put another way, the 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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (internal quotations and citations omitted).)

Plaintiffs fail to meet their step two burden. As Navellier states, they must show their complaint is both legally sufficient and supported by a prima facie evidentiary showing. As set forth above, the Court has sustained the State Bar Defendants’ demurrer on all counts. Accordingly, Plaintiffs fail to show that the 2AC is legally sufficient.

C. Conclusion on Special Motion to Strike

The special motion to strike is granted as to Plaintiffs’ claims arising from attorney discipline. The motion is denied as to Albert’s and Westmoreland’s claims arising from the data breach.

II. Traditional Motion to Strike

The State Bar Defendants also move to strike some allegations on the grounds that they were “not drawn or filed in conformity with . . . an order of the court.” (CCP § 436(b).) Specifically, they contend some allegations in the 2AC are outside the scope of amendment permitted by the federal court when it granted the motion to dismiss the FAC.

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (CRC 3.1322(a).) The notice of motion does not identify the specific language to be struck from the 2AC. The traditional motion to strike is therefore denied on procedural grounds.

LEAVE TO AMEND

Ordinarily, leave to amend is freely granted, but this policy is inapplicable when an anti-SLAPP motion has been granted. (See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 (“[G]ranting leave to amend the complaint after the court finds the defendant had established its prima facie case would be jamming a procedural square peg into a statutory round hole.”).) Accordingly, leave to amend is denied as to all claims arising from attorney discipline.

As to the data breach claims, while leave to amend may be freely given, it appears to the Court there is no way Albert and Westmoreland can amend their claims to plead the data breach occurred before formal disciplinary charges were filed, such that the data breach might violate Bus. & Prof. Code § 6086.1(b). Nor does it appear possible for Albert to amend her claim to avoid the limitations period imposed by Gov. Code § 945.6(a)(2). Accordingly, leave to amend is denied as to the State Bar Defendants.

As to Tyler, Plaintiffs have had multiple opportunities to plead viable claims, and they have repeatedly failed to do so. Because it does not appear that Plaintiffs can set forth a viable theory and factual basis that plausibly addresses the various deficiencies, further leave to amend would be

improper.

The effect of these rulings is that the only surviving cause of action in this case is Westmoreland’s claim against Tyler for negligence arising from the data breach.

BETH PETRONIO’S APPLICATION FOR ADMISSION PRO HAC VICE

Attorney Beth Petronio’s application for admission pro hac vice is GRANTED. The application complies with the requirements of CRC 9.40.