Opinion
E068028 E068594
10-05-2018
BRETT LA CUES, Cross-complainant and Appellant, v. KEVIN GERRY et al. Cross-defendants and Respondents.
Brett Christian La Cues, in pro. per., for Cross-complainant and Appellant. Century Law Group and Edward O. Lear for Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1613553) OPINION APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed in part; reversed in part with directions. Brett Christian La Cues, in pro. per., for Cross-complainant and Appellant. Century Law Group and Edward O. Lear for Cross-defendants and Respondents.
I. INTRODUCTION
Cross-complainant and appellant, Brett La Cues, is one of several attorneys who represented a group of plaintiffs in a construction defect lawsuit (the underlying action). The underlying action settled in 2015. La Cues alleges his former clients and their other attorneys are now attempting to dispossess him of his interest in the underlying settlement funds. They are allegedly attempting this through several means, including threats to La Cues's safety and financial well-being, but also through the prosecution of a malpractice complaint against La Cues.
After the former clients filed their malpractice complaint, La Cues brought this cross-complaint based on the alleged scheme to dispossess him of his interest in the settlement funds. Among the nine cross-defendants are respondents, Kevin Gerry and his law practice, The Law Offices of Kevin Gerry (collectively, Gerry). Gerry represents the former clients in the malpractice complaint against La Cues, and he also allegedly participated with the other cross-defendants in the threats to La Cues.
As against Gerry, the cross-complaint alleges intentional infliction of emotional distress (IIED) and unlawful business practices. (Bus. & Prof. Code, § 17200.) Gerry filed a special motion to strike the causes of action under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The court granted the anti-SLAPP motion and awarded Gerry his attorney fees.
Undesignated statutory references are to the Code of Civil Procedure unless otherwise indicated. SLAPP stands for "'strategic lawsuit against public participation.'" (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).)
We conclude the court should have granted the anti-SLAPP motion only in part. The claims arise from allegations of both protected activity (the prosecution of the malpractice complaint) and unprotected activity (the threats). As to the protected activity, La Cues cannot demonstrate a probability of prevailing against Gerry based on this activity. Accordingly, the allegations of protected activity must be stricken from the complaint. We modify the trial court's order by striking these specific allegations and otherwise order the motion denied. We also reverse the order awarding Gerry attorney fees and remand with directions to reconsider fees, in view of the mixed result for Gerry.
II. FACTS AND PROCEDURE
A. Allegations of the Cross-complaint
La Cues's cross-complaint pleads numerous causes of action but, as discussed, only two against Gerry—IIED and unlawful business practices. The cross-complaint alleges as follows:
In 2009, Edward Guillen, Leon Smith, Bertram Robison (the clients) and 61 other plaintiffs filed the underlying action in Riverside County Superior Court. Initially, La Cues, Jerry La Cues (Jerry), and one other attorney represented the clients in the underlying action. Arthur Lettenmaier later associated in as counsel for the clients because of the complexity of the underlying action. Still later, Lettenmaier's colleague, Michael Chulak, joined the group of attorneys when the group needed more help prosecuting the underlying action.
The vast majority of the 64 plaintiffs in the underlying action agreed to settle their case, but the clients did not settle. Chulak and Lettenmaier arranged for the settlement funds of the other plaintiffs to be deposited into Chulak's client trust account, to which Lettenmaier was also a signatory. Within days of the deposit, Chulak and Lettenmaier withdrew as counsel for the clients. The clients then terminated the services of La Cues and Jerry and proceeded in propria persona. Within a few months, the court dismissed the underlying action.
The clients wanted to pursue an appeal in the underlying action, represented by Chulak and Lettenmaier, but they could not afford it. Chulak and Lettenmaier suggested to the clients that they "extort" La Cues and Jerry to forfeit any interest in the settling plaintiffs' funds; in exchange, the clients would agree not to sue La Cues and Jerry for malpractice. If La Cues and Jerry gave up their interest in the settlement funds, the clients could take their forfeited portion to finance the appeal (despite the fact that the clients did not settle and had no right to the settlement funds).
In February 2016, one of the clients filed a complaint against La Cues alleging breach of contract and malpractice. Shortly after that, the client and Lettenmaier told La Cues that they would dismiss the malpractice complaint if La Cues would forfeit his interest in the settlement funds. La Cues refused to forfeit his interest. The malpractice complaint had no merit, and the client filed it for the sole purpose of extorting La Cues.
In June 2016, the client dismissed the malpractice complaint. But in August 2016, all three clients filed another malpractice complaint against La Cues, this time represented by Gerry. Gerry agreed to assist the clients, Chulak, and Lettenmaier in their extortion scheme in exchange for a portion of the settlement funds from the underlying action.
On multiple occasions, La Cues tried to discuss the merits of the malpractice complaint with Gerry, but Gerry refused to do so and said only that the clients would dismiss the complaint if La Cues gave up his interest in the settlement funds. La Cues filed the instant cross-complaint on October 25, 2016. As of that date, the clients had not served him with the malpractice complaint.
The cross-defendants named in the cross-complaint include all three clients; Chulak, Lettenmaier, and their respective law offices; and Gerry. "Cross-defendants, and each of them," called and e-mailed La Cues with "threatening" and "harassing" messages demanding that he relinquish his right to the settlement funds. For example, one of the clients, "at the direction of the other Cross-defendants," physically threatened La Cues, threatened to financially destroy him, threatened to report him to the Federal Bureau of Investigation (FBI), and threatened to have him disbarred if he did not relinquish his right to the funds. Cross-defendants also used the malpractice complaints for the sole purpose of gaining leverage against La Cues and thus used the court system to extort him. La Cues's cause of action for IIED alleges cross-defendants' threats, as well as their use of the court system, caused him severe emotional distress, mental anguish, and anxiety. His cause of action for unlawful business practices alleges "Cross-defendants, and each of them, have extorted and/or attempted to extort" him in an attempt to obtain money to which they are not legally entitled. B. The Anti-SLAPP Motion
Gerry filed an anti-SLAPP motion to strike the cross-complaint, arguing that the specific claims against him arose from protected activity—that is, the prosecution of the malpractice complaint on behalf of the clients. La Cues's opposition to the anti-SLAPP motion argued that he did not sue Gerry for simply filing a malpractice complaint. Rather, he sued Gerry for his participation in the scheme to extort La Cues, which included making illegal threats to La Cues's safety. He argued that extortionate speech is illegal as a matter of law and falls outside the protection of the anti-SLAPP statute. (§ 425.16.) He also urged the court to find that he had a probability of prevailing on the merits of his IIED cause of action. (He explained that his unlawful business practices cause of action was derivative of the IIED cause of action.)
La Cues's declaration opposing the motion set forth facts similar to those alleged in his cross-complaint. He stated that, when he refused to forfeit his interest in the underlying settlement funds, cross-defendants threatened to use Gerry to file the second malpractice suit against him. He further declared: "They told me that Gerry was an aggressive attorney who would pursue me for malpractice until I gave in and agreed to give up my interest in the settlement funds. At the same time, Cross-defendants threatened to physically harm me, financially destroy me, report me to the FBI, and have me disbarred if I did not give into their demands. In fact, I was told that I'd be lucky to work at McDonalds after they g[o]t done with me. The majority of [the] threats were conveyed to me over the telephone." (Capitalization omitted.) Then, when La Cues still refused to give up his interest in the funds, Gerry sent him "a demand letter which was comprised of false allegations that were unsupported by any evidence." La Cues responded and asked to discuss the matter, but Gerry ignored that request and filed the malpractice complaint on behalf of the clients. And after the filing of the malpractice complaint, La Cues tried to discuss the matter again, and Gerry's only response was a single sentence: "[M]y clients are willing to waive their malpractice rights in exchange for a waiver of [your and Jerry's] liens on the underlying action."
In reply, Gerry filed a declaration explaining that, after the clients retained him and he investigated the facts, he believed they had good cause for filing a malpractice complaint against La Cues and Jerry based on: La Cues's and Jerry's failure to disclose that the State Bar had suspended Jerry during the pendency of the underlying action; their failure to adequately advise the clients regarding the impact of section 998 offers; their failure to account for funds received in partial settlement of the underlying action; and their failure to properly finance the underlying action, despite their contractual obligation to do so.
The court granted Gerry's anti-SLAPP motion. It ruled that the claims against Gerry dealt with a judicial proceeding and thus arose from protected speech, and La Cues had not shown that Gerry's alleged conduct was illegal as a matter of law. Moreover, it ruled, La Cues had not shown a probability of prevailing on the merits. C. Gerry's Motion for Attorney Fees
Gerry filed a motion for attorney fees in the amount of $15,672. La Cues opposed the motion on the ground that the notice of motion did not state the amount of fees sought or to whom the motion was directed; the hours billed (36.5) and the hourly rate ($425) were unreasonable for a number of reasons; Gerry's counsel lacked credibility; and the billing invoice was inaccurate. The court granted the motion and ruled the amount of fees sought was reasonable, minus $86 that La Cues had incurred in court call fees for an earlier hearing at which opposing counsel failed to appear. The court awarded Gerry $15,586.
III. DISCUSSION
La Cues contends the court erred because Gerry's "threats and extortion" demands are not protected by the anti-SLAPP statute. We agree insofar as Gerry participated in the threats to physically harm La Cues, financially destroy him, and report him to certain authorities. But the cross-complaint alleges Gerry also engaged in plainly protected activity—the prosecution of the malpractice complaint—and this activity is not merely incidental to the causes of action against him. As we shall explain, the allegations of protected activity may be stricken from the cross-complaint, but the causes of action against Gerry will remain intact to the extent they are based on unprotected activity. Given this new mixed result for Gerry, the court must reconsider the issue of attorney fees on remand. A. The Court Should Have Granted the Anti-SLAPP Motion Only in Part
"Section 425.16 provides an expedited procedure for dismissing lawsuits that are filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. [Citations.] 'The purpose of the anti-SLAPP statute is to encourage participation in matters of public significance and prevent meritless litigation designed to chill the exercise of First Amendment rights.'" (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1292.)
To that end, "California's anti-SLAPP statute provides that '[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 . . . shall be subject to a special motion to strike, unless the court determines . . . there is a probability that the plaintiff will prevail on the claim.'" (Baral, supra, 1 Cal.5th at p. 381, quoting § 425.16, subd. (b)(1).) "Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by 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." (Baral, supra, at p. 384.) In making these determinations, "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)
"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." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) We review the trial court's ruling on an anti-SLAPP motion de novo. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
1. Step One: The Challenged Claims Arise from Both Protected and Unprotected Activity
"A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) At this step, we do not get into the merits of the pleaded claims, but simply identify whether the pleaded conduct falls within the definition of protected activity. (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.) We accept as true the plaintiff's pleaded facts and evidence favorable to the plaintiff. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 (Flatley); Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217.) Moving defendants must make a prima facie showing that their alleged actions fall within the ambit of the anti-SLAPP statute. (Flatley, supra, at p. 317.)
Subdivision (e) of section 425.16 sets forth four categories of protected speech or petitioning activity. Among them is "(1) any written or oral statement or writing made before a . . . judicial proceeding," and "(2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subd. (e)(1), (2).) "[A] statement is 'in connection with' litigation . . . if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
Generally, "all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding . . . are per se protected as petitioning activity by the anti-SLAPP statute." (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) Thus, a claim for relief filed in court "indisputably" constitutes protected activity. (Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) And, "[o]rdinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity . . . ." (Malin v. Singer, supra, 217 Cal.App.4th at p. 1293.) The same goes for communications in settlement negotiations—typically, they are protected activity. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908.)
But not all attorney conduct while representing clients is protected by the anti-SLAPP statute. (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) "The statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with [a judicial] proceeding." (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866.) We must be mindful of the requirement that, to be protected by section 425.16, subdivision (e)(2), attorney communications should relate to substantive issues under review by a court. (Ibid.; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 [holding that the attorneys' advice letters to their client did not "concern any petitioning activity" because "[t]he letters were not writings made before a judicial proceeding, or in connection with an issue under review by a court."].)
Close examination of Gerry's alleged conduct compels the conclusion that some, but not all, of his actions are protected by the anti-SLAPP statute. According to the cross-complaint, "[c]ross-defendants"—which would include Gerry—sent threatening and harassing messages to La Cues demanding that he forfeit his interest in the underlying settlement funds. For instance, one of the clients, at the alleged direction of the other cross-defendants, purportedly threatened La Cues with physical harm and financial ruin, with reporting to the FBI, and with disbarment, unless La Cues forfeited his interest in the funds. La Cues's declaration accused "[c]ross-defendants" themselves of making these same threats, not just directing the client to make these threats. For purposes of this anti-SLAPP motion, we must accept these allegations and evidence as true.
Gerry had to make a prima facie showing that this conduct constitutes protected activity. He did not. In fact, his moving papers did not address it at all. And when La Cues's opposition pointed out that Gerry had directed and participated in these threats, Gerry's reply still did not address this conduct. Instead, Gerry focused on his other acts—filing the malpractice complaint and making a settlement demand.
The threats Gerry stands accused of directing and making cannot be construed as protected litigation activity. They were not made before a judicial body. (§ 425.16, subd. (e)(1).) More to the point, they did not relate to substantive issues under review by a court. (§ 425.16, subd. (e)(2); Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1266.) The fact that the threats demanded La Cues forfeit his interest in funds obtained through a settlement is not the kind of "connection" that is sufficient alone to trigger anti-SLAPP protection. (Paul v. Friedman, supra, 95 Cal.App.4th at p. 866 [noting "[t]he necessity of a connection to an issue under review in a proceeding, and not merely to a proceeding . . . ."].) There is no indication that the threateners discussed substantive issues reviewed by the court in the underlying action (a construction defect action). And these particular threats did not propose a waiver of the clients' potential malpractice claims in exchange for what they wanted, such that the discussion could be said to relate to substantive issues in a prior or anticipated malpractice complaint against La Cues. (The threats occurred in between the first and second malpractice complaints, according to La Cues's declaration.) Rather, the threateners proposed an unrelated exchange: they would refrain from physically harming La Cues, financially ruining him, and reporting him to the FBI and the State Bar for unspecified violations, so long as he gave up his interest in the funds. Such threats, unrelated to any substantive issues under review in pending or anticipated litigation, are not protected activity.
On the other hand, Gerry's remaining communications plainly constitute protected activity. On behalf of the clients, Gerry sent a demand letter and filed the malpractice complaint. He also said the clients would dismiss the malpractice complaint in exchange for a waiver of La Cues's interest in the underlying settlement funds. Simply stated, Gerry offered to settle the malpractice complaint. All of these acts fall squarely within the ambit of the anti-SLAPP statute. The malpractice complaint was a "writing made before a . . . judicial proceeding . . . ." (§ 425.16, subd. (e)(1).) Settlement negotiations of pending litigation are within the scope of section 425.16. (Seltzer v. Barnes, supra, 182 Cal.App.4th at p. 963.) And, nothing in the cross-complaint or La Cues's declaration takes the demand letter outside "the general rule . . . that a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity . . . ." (Malin v. Singer, supra, 217 Cal.App.4th at p. 1294.) The record contains almost no detail about the content of the demand letter. La Cues asserted it contained "false allegations," but that is no bar to anti-SLAPP protection.
Consider an archetypal false statement, the defamatory statement. Anti-SLAPP motions routinely target defamation claims. (Hecimovich v. Encinal School Parent Teach Organization (2012) 203 Cal.App.4th 450, 464.) So long as the allegedly defamatory statements qualify as protected activity under one of the four categories set forth in the statute (§ 425.16, subd. (e)(1)-(4)), the analysis should proceed to step two, where the plaintiff must establish a probability of success on the merits. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 420.)
La Cues argues that the so-called Flatley exception applies here and renders Gerry's conduct unprotected. We need not reach this argument with respect to the threats he accuses Gerry and the other cross-defendants of making; we have already determined they do not qualify as protected activity. With respect to the demand letter, malpractice complaint, and settlement offer, we conclude the Flatley exception does not apply.
In Flatley, our Supreme Court held that "section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Flatley, supra, 39 Cal.4th at p. 317.) The circumstances in which the defendant's assertedly protected activity may be found illegal as a matter of law are narrow. (Flatley, supra, 39 Cal.4th at p. 316.) The defendant must either concede the illegality of his or her conduct, or the evidence must "conclusively" show the illegality. (Ibid.) The Flatley court concluded an attorney's demand letter and subsequent phone calls constituted criminal extortion as a matter of law and thus were not constitutionally protected speech. (Id. at pp. 330-333.) Notably, the evidence of the extortionate statements was uncontroverted. (Id. at pp. 328-329.)
After Flatley, the courts have interpreted this exception to apply to conduct that is not merely illegal, but is criminal. (E.g., Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 ["Our reading of Flatley leads us to conclude that the Supreme Court's use of the phrase 'illegal' was intended to mean criminal, and not merely violative of a statute."]; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169 ["[W]e hold that the rule from [Flatley], is limited to criminal conduct."].)
We are not persuaded that Gerry's litigation conduct constituted extortion as a matter of law, as La Cues contends. Gerry certainly never conceded the issue, and the evidence does not conclusively show it. "Extortion is the obtaining of property or other consideration from another, with his or her consent, . . . induced by a wrongful use of force or fear . . . ." (Pen. Code, § 518, subd. (a).) But "a person, generally speaking, has a perfect right to prosecute a lawsuit in good faith," without that amounting to extortion. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1079; Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) While La Cues declared the malpractice complaint wholly lacks merit and was filed for the sole purpose of extorting him, Gerry declared that, after the clients retained him and he investigated the facts, he believed they had good cause for pursuing the malpractice complaint. There was no conclusive showing that the malpractice complaint amounted to criminal extortion. On the contrary, the issue seems fraught with factual questions requiring resolution. If Gerry filed the malpractice complaint in good faith and it had some merit, we do not see how it would qualify as "a wrongful use of force or fear." (Pen. Code, § 518, subd. (a), italics added.)
Moreover, the record does not include the demand letter that La Cues found so extortionate. We have no way of determining whether it contained statements amounting to extortion as a matter of law, like those in Flatley. We heed the following warning from the Flatley court: "We emphasize that our conclusion that [the attorney's] communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. . . . Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion. [Citation.] . . . [O]ur discussion of what [is] extortion as a matter of law is limited to the specific facts of this case." (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) It follows that the narrow Flatley exception cannot be applied where we do not know the specific content of the demand letter.
In short, some, but not all, of Gerry's alleged conduct constitutes protected activity. To the extent he allegedly participated in the threats of physical harm, financial ruin, and reporting to the FBI and State Bar for unspecified violations, anti-SLAPP protection does not apply. However, his other communications—the demand letter, the malpractice complaint, and the settlement offer—are protected. La Cues bases his causes of action for IIED and unlawful business practices on both categories of activity, alleging that cross-defendants' threats and their use of the court system caused his distress and were part of a scheme to extort him. They are "mixed" causes of action in anti-SLAPP terms, or "count[s] alleging both protected and unprotected activity." (Baral, supra, 1 Cal.5th at p. 382.)
When a complaint presents a mixed cause of action involving protected and unprotected activities, we ask whether the protected activity is merely incidental or collateral to the claim for relief. (Baral, supra, 1 Cal.5th at p. 394; City of Colton v. Singletary (2012 ) 206 Cal.App.4th 751, 767.) If so, the allegations of protected activity are not subject to being stricken by the anti-SLAPP statute. (Baral, supra, at p. 394 ["Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute."].) But if not, if the allegations are more than merely incidental, collateral, or contextual, then they may be parsed and stricken (assuming plaintiffs satisfy their burden at step two). (Id. at p. 395; City of Colton v. Singletary, supra, at p. 773.)
"The anti-SLAPP procedures are designed to shield a defendant's constitutionally protected conduct from the undue burden of frivolous litigation. It follows, then, that courts may rule on plaintiffs' specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity." (Baral, supra, 1 Cal.5th at p. 393.) "[T]he Legislature's choice of the term 'motion to strike' reflects the understanding that an anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded. [Citations.] The bench and bar are used to thinking of motions to strike as a way of challenging particular allegations within a pleading. [Citations.] The drafters of the anti-SLAPP statute were surely familiar with this understanding." (Id. at pp. 393-394.)
Gerry's prosecution of the malpractice complaint is not merely contextual, incidental, or collateral to La Cues's claims for relief. Instead, the cross-complaint positions cross-defendants' "use[] [of] the Court system to extort" La Cues as an integral part of his alleged emotional distress, all in an attempt to force him to give up his interest in the underlying settlement funds. We conclude, therefore, that the litigation-related allegations may be parsed and stricken from the cross-complaint, so long as La Cues has not established a probability of success. We turn to that question now.
2. Step Two: La Cues Cannot Establish a Probability of Success Based on the Allegations of Protected Activity
Plaintiffs asserting a mixed cause of action must establish a probability of prevailing based only on the protected activity. (Baral, supra, 1 Cal.5th at pp. 392, 395- 396; Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1171.) The allegations of unprotected activity are disregarded. (Baral, supra, at p. 396; Sheley v. Harrop, supra, at p. 1171.)
"We have described this second step as a 'summary-judgment-like procedure.' [Citation.] 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." (Baral, supra, 1 Cal.5th at pp. 384-385, fn. omitted.) We accept the plaintiff's evidence as true and determine whether the defendant's evidence defeats the plaintiff's claim as a matter of law. (Id. at p. 385.)
A prima facie case of IIED requires "'extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress . . . . [Citations.] "Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants' conduct was unprivileged." [Citations.] Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)
Because of the litigation privilege, La Cues has not shown a probability of prevailing on his IIED claim based on Gerry's litigation-related conduct. The litigation privilege, codified in Civil Code section 47, subdivision (b), "'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. [Citations.]' [Citation.] Thus, 'communications with "some relation" to judicial proceedings' are 'absolutely immune from tort liability' by the litigation privilege. [Citation.] It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) Gerry's demand letter, the malpractice complaint, and his settlement offer fall squarely within the litigation privilege. They were communications bearing some relation to judicial proceedings. For this reason, La Cues cannot succeed on his claim that these actions constitute IIED.
Both below and on appeal, La Cues made no showing with respect to the unlawful business practices claim, asserting: "Since the Unlawful Business Practices cause of action is predicated upon the cause of action for [IIED] only the latter will be addressed." Accordingly, he has not carried his burden of showing a probability of success on this claim either. We will thus direct the trial court to strike the allegations of Gerry's protected activity from the cross-complaint. (Sheley v. Harrop, supra, 9 Cal.App.5th at pp. 1173-1175 [striking allegations of protected activity from a complaint but leaving the remainder of the causes of action undisturbed]; City of Colton v. Singletary, supra, 206 Cal.App.4th at pp. 774, 787 [same].) Specifically, the court shall strike paragraphs 24, 26, and 63 of the cross-complaint. The allegations of Gerry's unprotected activity shall remain, however. These include the allegations that he and the other cross-defendants directed or participated in threats to physically harm La Cues, financially destroy him, and report him to the FBI and the State Bar. B. The Court Must Reconsider Attorney Fees in Light of the Mixed Result
Paragraph 24 states: "On August 12, 2016, Gerry filed another complaint against Cross-complainant on behalf of Plaintiffs. Cross-complainant is informed and believes, and based thereon alleges, that Chulak, Lettenmaier, and Gary Verboon located Gerry to represent Plaintiffs in another malpractice action to put further pressure on Jerry La Cues and Brett La Cues to forego their interest in the settlement funds. As evidence of this, Plaintiffs and Gerry chose to only sue Jerry La Cues and Brett La Cues even though they were also represented by Chulak, Lettenmaier, and Neil Sunkin in the Underlying Case." (Capitalization omitted.) Neil Sunkin and Gary Verboon are other attorneys who are not parties to the malpractice complaint or the cross-complaint.
Paragraph 26 states: "On multiple occasions, Cross-complainant has attempted to discuss the merits of Plaintiffs' complaint with Gerry, but Gerry has refused to communicate with Cross-complainant. Instead, Gerry only repeated the same mantra as the other Cross-defendants—he said Plaintiffs would dismiss the Action if Cross-complainant and Jerry La Cues would give up their interests in the settlement funds. After Cross-complainant refused, Gerry again ceased all communications. As of October 25, 2016, Gerry has not had the complaint served because he is aware it has no merit. The Action was initiated for the purpose of harassing Cross-complainant and extorting him to forego his interest in the settlement funds." (Capitalization omitted.)
Paragraph 63 states: "Cross-defendants, and each of them, have also used the Court system to extort Cross-complainant. Cross-defendants, and each of them, have filed, or caused to be filed, multiple complaints against Cross-complainant for the sole purpose of gaining leverage against Cross-complainant."
Defendants who prevail on their anti-SLAPP motions are entitled to recover their attorney fees and costs. (§ 425.16, subd. (c)(1).) "[A] party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16." (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 339.) "[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court." (Id. at p. 340.)
In addition, the court may reduce the amount of fees sought to adjust for mixed results. "[A] defendant should not be entitled to obtain as a matter of right his or her entire attorney fees incurred on successful and unsuccessful claims merely because the attorney work on those claims was overlapping. Instead, the court should first determine the lodestar amount for the hours expended on the successful claims, and, if the work on the successful and unsuccessful causes of action was overlapping, the court should then consider the defendant's relative success on the motion in achieving his or her objective, and reduce the amount if appropriate." (Mann v. Quality Old Time Service, Inc., supra, 139 Cal.App.4th at pp. 344-345.) The amount of fees awarded also lies within the sound discretion of the trial court. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)
Given the trial court's broad discretion to determine whether a party prevailed and the appropriate amount of fees, the trial court should reconsider these issues, in light of the mixed results for Gerry. (City of Colton v. Singletary, supra, 206 Cal.App.4th at pp. 784, 787 [anticipating that the trial court will reconsider attorney fees on remand, where the appellate court partially reversed the order on the anti-SLAPP motion].) We will thus reverse the order granting Gerry's attorney fees motion.
IV. DISPOSITION
The order granting the anti-SLAPP motion is modified to grant the special motion to strike paragraphs 24, 26, and 63 of the cross-complaint. In all other respects, the motion shall be denied. As so modified, the order is affirmed. The order granting Gerry's motion for attorney fees is reversed. On remand, the court shall reconsider whether Gerry is entitled to attorney fees and costs, and if so, in what amount. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.