Opinion
Case No.: 1:00-bk-15821-GM Adv No: 1:13-ap-01061-GM
07-01-2013
In re: Continental Coin Corporation Debtor(s). Zamora & Hoffmeier Plaintiff(s), v. Hill, Farrer & Burrill LLP, Daniel J. McCarthy, Rodger Virtue Defendant(s).
Chapter 11
MEMORANDUM OF OPINION DENYING
DEFENDANT'S SPECIAL MOTION TO
STRIKE PURSUANT TO CALIFORNIA
CODE OF CIVIL PROCEDURE §425.16
REGARDING DOCKET NUMBER 7
Date: May 14, 2013
BACKGROUND
Continental Coin Corp. filed for Chapter 11 bankruptcy on 6/19/2000. On 9/4/2001, Nancy Hoffmeier Zamora was appointed as the Chapter 11 trustee ("Zamora"). On 11/2/2001, the Court approved Trustee's employment of Zamora & Hoffmeier ("Z&H") as general counsel. Over the course of Zamora's work as trustee, Daniel McCarthy ("McCarthy") and the firm by which he is employed, Hill, Farrer & Burrill, LLP ("HFB"), filed numerous objections on behalf of creditor Rodger Virtue ("Virtue"), including an objection to Trustee's proposed liquidation plan. The Court confirmed the Trustee's liquidation plan over Virtue's objection on 8/2/07.
On 12/12/2007, the Court entered an order allowing Virtue to file a complaint against Trustee. The order contained a provision that prohibited Virtue from including any claims against the Trustee's attorney. On 12/28/2007, Virtue filed a complaint (the "Adversary Proceeding" or "Adversary Complaint") alleging negligence, gross negligence and breach of duty against Trustee, also naming Z&H as a defendant with an allegation for legal malpractice. The Trustee and Z&H opposed the Adversary Complaint as a violation of the Court's Order. The Bankruptcy Court agreed and Virtue appealed to the District Court, which affirmed that Virtue could not sue Z&H. The District Court's Opinion became final on 3/21/2011, after which both parties appealed the District Court Opinion to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") and the Ninth Circuit dismissed both for lack of appellate jurisdiction. On 6/11/2011, Virtue filed a First Amended Complaint removing Z&H as a defendant. On 3/20/2013, Z&H filed a complaint against Virtue, McCarthy and HFB for malicious prosecution and abuse of process.
1:07-ap-01291-GM.
A timeline of the various events and appeals relevant to this motion is attached hereto.
Unless otherwise specified, all defendants are referred to jointly under the term "Virtue."
THE MOTION
Two identical motions, one filed by Virtue and the other by HFB, are before the Court. Because they are identical, references to Virtue as the moving party will include McCarthy and HFB. (Adv#:1:13-01061, Dk #5, #6)
Virtue moves to strike Z&H's 3/20/2013 Complaint for malicious prosecution and abuse of process pursuant to California Code of Civil Procedure § 425.16, commonly known as California's "anti-SLAPP statute." Virtue argues that Z&H's claims arise from Virtue's original Adversary Proceeding thus satisfying the first prong of the anti-SLAPP statute. Next, Virtue argues that Z&H fails to meets its burden under the statute because Z&H fails to show a probability of success on the merits of the claims. Because Z&H fails to meet its burden, the claims should be dismissed as SLAPPs pursuant to the anti-SLAPP statute.
Z&H opposes Virtue's motion on the grounds that the anti-SLAPP statute is inapplicable. Z&H argues that because Virtue's Adversary Proceeding is not related to a public issue, it is not protected activity under the statute. Thus, the first prong of the anti-SLAPP statute is not met. Next, Z&H claims that it meets the second-prong burden of the anti-SLAPP statute because its complaint is sufficiently pled under the federal rules of pleading. Thus, Z&H argues, the Court should deny Virtue's motion to strike and either compel Virtue to answer the Z&H complaint and allow Z&H to proceed with discovery related to the Z&H complaint, or continue to the hearing on the motion so that Z&H can conduct discovery and amend its complaint if necessary.
DISCUSSION
I. Summary of California's Anti-SLAPP Purpose and Procedure.
Strategic Lawsuit Against Public Participation, commonly referred to as "SLAPP" suits, refer to meritless lawsuits that appear to be normal lawsuits but are initiated for the purpose of deterring ordinary citizens from exercising their legal rights to protected speech. Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816 (Cal. App. 2d Dist. 1994). The purpose of a SLAPP is "not to succeed on the merits, but to so intimidate the private citizen (or even the government official) that that citizen's activity ceases because the expense, risk and anxiety engendered by the process of litigating a SLAPP is too great." Causes of Action: Bringing and Defending Anti-SLAPP Motions to Strike or Dismiss, 22 C.O.A.2d 317, 322, § 2 (2003). A SLAPP abuses the judicial process with the desired outcome of preventing individuals from exercising their right to free speech. Id.
Identifying a surge in these SLAPPs, the California legislature enacted California Code of Civil Procedure, §425.16 in 1992. The purpose of California's anti-SLAPP statute is to dismiss meritless claims that simply seek to "chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Code Civ. Pro §425.16(a). The statute states the legislative purpose clearly: "to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." Id. The legislature further notes that it should be construed broadly. Cal. Code Civ. Pro §425.16(b).
To prevent the success of these SLAPPs, the California legislature created a two-pronged analysis to determine when cases should be dismissed as SLAPPs. First, the Court must determine whether the defendant has met her burden to show that the challenged cause of action arises from protected activity. Navellier v. Sletten, 29 Cal. 4th 82, 88 (Cal. 2002). If the Court is satisfied with the defendant's showing, then the burden shifts to the plaintiff, and the Court will evaluate whether the plaintiff has met her burden to show a probability of prevailing on the merits of her claim. Id. As a final safeguard, the legislature has provided that a successful defendant may recover expenses incurred in bring forth an anti-SLAPP motion. Cal. Code Civ. Pro §425.16(c)(1).
II. Applicability of California's Anti-SLAPP Statute in Federal Court.
A. The Erie Doctrine Will Govern a Federal Court's Analysis of a State Law Claim.
In Erie R.R. v. Tompkins, the United States Supreme Court confronted the issue of what law, state or federal, a federal court should apply when deciding on matters of state law. See 304 U.S. 64 (1938). The resulting Erie Doctrine, as it has come to be known, created a relatively simple test to address this issue: federal courts should apply substantive state law and federal procedural law. Id. at 78. However, conflict arises when there is a "direct collision" between state and federal law. Hanna v. Plumer, 380 U.S. 460, 472 (1965). The Supreme Court further addressed this issue in Guaranty Trust Co. v. York, creating an outcome determinative test which instructed federal courts to apply state law if the application of federal law would provide a different outcome. 326 U.S. 99, 109 (1946). This test supported the intent of the Erie decision which was to prevent forum shopping and to prevent inequitable administration of the law. Id.
The Supreme Court addressed the more specific issue of when a state law conflicts with a Federal Rule of Civil Procedure in Hanna v. Plumer. 380 U.S. at 470. "When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie Choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions."Id. at 471. Thus, where a federal court is faced with a "direct collision" between a state law and a Federal Rule of Civil Procedure, the Federal Rule governs.
B. Where No Conflict Arises Between State Substantive Law and Federal Procedural Law, State Law Governs.
The Ninth Circuit has addressed the problem of direct collision specifically as it relates to the requirements of an anti-SLAPP motion and the Federal Rules of Civil Procedure and found that no such collision necessarily occurs. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972 (9th Cir. Cal. 1999). The Court noted that the anti-SLAPP statute and the Federal Rules pursue different aims: the Federal Rules simply guiding procedure, and the anti-SLAPP statute guiding "the constitutional rights of freedom of speech and petition for redress of grievances." Cal. Civ. Code § 425.16(a). The Court further noted that while the relevant Federal Rules, primarily rules 8, 12 and 56, do share some common ground with the anti-SLAPP statute in that they all allow for early dismissal of unmeritorious claims, "this commonality of purpose, however, does not constitute a 'direct collision'." Newsham, 190 F.3d at 972. Thus, if no collision occurs, the anti-SLAPP statute will govern.
The California Supreme Court has found that subsection (g) of the anti-SLAPP statute, the provision governing discovery, does collide with the Federal Rules. When such a collision occurs, the Federal Rules should prevail, as per Hanna. The Court noted that it "refused to apply certain discovery-limiting provisions of the anti-SLAPP statute because they would conflict with Fed. R. Civ. P. 56." Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081, 1091 (9th Cir. Cal. 2004). Z&H's anti-SLAPP motion does not involve subsection (g). The only subsections at issue are (b), the pleading requirements, and (e), whether Z&H's claims arise from Virtue's Constitutionally protected petitioning activities. The Ninth Circuit has ruled that these provisions do not collide with, and thus should not be displaced by, the Federal Rules. See Newsham,190 F.3d 963 at 972.
C. The Outcome of Virtue's Anti-SLAPP Motion Is the Same Whether State or Federal Rules of Procedure Apply.
Even if the Court were to find a direct collision between the anti-SLAPP statute and the Federal Rules of Civil Procedure and thus allow the Federal Rules to displace the requirements of the anti-SLAPP statute, the outcome would be same. California courts have consistently ruled that the "probability of prevailing" language of the anti-SLAPP statute should be interpreted similarly to the "no genuine dispute" language of Federal Rule 56, governing summary judgment. See Wilcox, 33 Cal.Rptr.2d at 454. This means that if a reasonable jury could see any dispute as to the plaintiff's probability of prevailing on the merits of his claim, the anti-SLAPP motion to dismiss should be denied. The California Supreme Court has further clarified that a court should make this determination as "if the evidence submitted by the plaintiff is credited." Taus v. Loftus, 40 Cal. 4th 683, 713 (Cal. 2007). Thus, the plaintiff's burden is quite low to show a probability of prevailing on the merits.
III. Virtue Meets His Burden Under the Anti-SLAPP Statute Because His Motion to Strike Arises from Protected Activity Under the Anti-SLAPP Statute.
In the instant case, Virtue moves to strike Z&H's claims for malicious prosecution and abuse of process pursuant to California's anti-SLAPP statute. Both malicious prosecution and abuse of process are state claims and thus subject to California's anti-SLAPP statute. See In re Bah, 321 B.R. 41 (9th Cir. BAP 2005). The Ninth Circuit has ruled that these two claims should not be categorically exempt from the anti-SLAPP statute. Flores v. Emerich & Fike, 385 Fed. Appx. 728, 732 (9th Cir. Cal. 2010). Thus, to successfully strike Z&H's claim for malicious prosecution, Virtue has the initial burden to show that Z&H's claims arises from Virtue's Adversary Proceeding, and that this Adversary Proceeding was protected activity under the statute.
Claims for malicious prosecution and abuse of process may be subject to the anti-SLAPP statute because they are within the activity that the statute seeks to protect. By definition, claims for malicious prosecution and claims for abuse of process are retaliatory claims, arising in response to the opposing party's litigation. In California, an action for malicious prosecution requires first that the plaintiff establish "that the underlying action was commenced by or at the direction of the defendant and it was pursued to a legal termination in the plaintiff's favor." HMS Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 213 (Cal. App. 2d Dist. 2004). This requirement is met in the instant case because the underlying action involves Virtue's legal malpractice claim against Z&H. Virtue filed his complaint, naming Z&H as a defendant, in spite of the Court's orders denying Virtue the right to do so. Virtue also failed to remove Z&H as a defendant even after the Court denied Virtue's motion for reconsideration. In a claim for abuse of process, a litigant must "establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings." Rusheen v. Cohen, 37 Cal.4th 1048, 1057 (Cal. 2006). Here again, Z&H's abuse of process claim rests on the accusation that Virtue's legal malpractice claim, and failure to adhere to the Court's order regarding this claim, was an improper use of the judicial system. Thus, both claims "arise from" and in response to Virtue's original legal malpractice claim.
Furthermore, Virtue's legal malpractice claim was within the purview of his Constitutional rights of free speech. Subsection (e) of the anti-SLAPP statute creates an exception to the "public issue" requirement of subsection (b). Pursuant to this subsection, activity may be protected under the statute even if it does not arise "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." Cal. Code Civ. Pro §425.16(b). Activity unrelated to a public issue that may still be protected under the statute includes "any written or oral statement of writing made before a. . . . judicial proceeding" or "any written or oral statement or writing made in connection with an issue under consideration or review by a . . .judicial body." Cal. Code Civ. Pro §425.16(e). Therefore, Virtue's legal malpractice claim need not be related to a public issue to find protection under the anti-SLAPP statute. The very filing of an adversary proceeding constitutes a written statement made before a judicial body and is thus protected under subsection (e). Virtue thus meets his burden.
IV. Z&H Has Met Its Burden Under the Anti-SLAPP Statute
A. The Evidence Should Be Considered Using a Standard Which Is Similar To, But Not Identical With That for a Motion for Summary Judgment.
In general a motion to dismiss under Fed. R. Civ. P.12(b)(6) - incorporated into Fed. R. Bank. P 7012 - is determined solely on the matters stated within the complaint, incorporated by reference, and other items of which the Court can take judicial notice. 5B Wright & Miller, Federal Practice and Procedure: Civil 3d § 1357, at 375-6 (2004). The introduction of other external material on either the part of the movant or the opposition is subject to the discretion of the trial court. Id. at 5C § 1364. Given the nature of this complaint, which rests largely on the intention of the Defendants, I would not normally allow or require the Plaintiff to file a declaration because no discovery has yet taken place and discovery is the key to proving a wrongful intention behind seemingly acceptable actions.
However, the anti-SLAPP statute states that 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." Cal. Code Civ. Pro §425.16(b)(2). In applying this provision, the California courts have decided that the analysis should be similar to that of a summary judgment motion. Because both motions seek to assess the merits of the plaintiff's claim before trial, "the same evidentiary standards should. . .govern both." Gallant v. City of Carson, 128 Cal. App. 4th 705, 712 (Cal. App. 2d Dist. 2005), overruled on other grounds by Reid v. Google, Inc., 50 Cal. 4th 512. In order that the Court can discern the merits of the plaintiff's claim, the Court must rule on evidentiary objections so as to "determine whether [the plaintiff] has presented admissible evidence that demonstrates a probability of prevailing on the merits of her claim." Martin v. Inland Empire Utilities Agency, 198 Cal. App. 4th 611, 630 (Cal. App. 4th Dist. 2011) at 630.
The same result occurs if federal procedure were to apply since if either party filed an affidavit/declaration, the Court must consider it and this converts the motion into one for summary judgment. Fed. R. Civ. P. 12(d).
"Though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 291 (Cal. 2006). The court thus considers evidence submitted by both sides, evaluating the defendant's evidence, including evidentiary objections, "only to determine if it has defeated that submitted by the plaintiff as a matter of law. HMS Capital,118 Cal. App. at 213.
However, there is no mention of how or if the Court should use a less stringent standard to assess the quality of the objected-to evidence at this early stage in the proceedings, which is at a time when no discovery has yet occurred.
In this motion, the Defendants do not present any contrary evidence, but object to Zamora's declaration and assert that he thus has presented no admissible evidence at all to support his claim.
Because the anti-SLAPP statute is silent, the Federal Rules of Evidence will apply. Rule 701 of the Federal Rules of Evidence states in relevant part that, in order to be admissible, a witness' testimony "in the form of opinions or inferences is limited to those opinions or inferences which are . . . rationally based on the perception of the witness." Fed. R. Evid. P. 701. Virtue's primary objections to Mr. Zamora's declaration concern Zamora's assertions as to the reasons that Virtue decided to sue Z&H despite the Court's order not to do so and Virtue's intent to damage the Trustee and her counsel when he has continued to oppose the Trustee's and Z&H's interim application for fees. The objections seek to remove all material that supports Zamora's theory that these actions by Virtue were malicious and abusive.
B. Having Considered the Evidence, Z&H Has Met Its Burden of Proof Under the Anti-SLAPP Statute.
The Court takes judicial notice of the following from the dockets (see attached chart for listing of relevant matters on the dockets):
(1) Virtue has objected to all or most of the substantive motions brought by
the Trustee in bankruptcy case 00-15821;
(2) Virtue's motion for leave to sue Z&H was denied by the bankruptcy court;
(3) Although Virtue filed a motion to reconsider, he did not wait until that was heard to include Z&H in his complaint against the Trustee;
(4) Virtue knew that including Z&H in the complaint was in violation of the Court's order in that he asserted in the complaint that this was filed as a precautionary measure since the 12/12/07 order was not yet final, there was his motion to modify pending, and on 12/21/07 Zamora filed an appeal [though no appeal had been filed as to the ruling concerning Z&H];
(5) Virtue's briefs in the district court appeal agree that only the Trustee has standing to sue the Trustee's counsel, but argue for a policy change to allow a creditor to do so on behalf of the estate;
(6) The district court affirmed the ruling of the bankruptcy court that Virtue did not have standing to sue Z&H. The district court found that as a matter of black letter law, a creditor cannot bring a malpractice
action against the Trustee's attorney and also noted that "Virtue presents no authority to the contrary;"
(7) Virtue opposed the second and third interim fee applications of the Trustee and of Z&H as premature until the allegations of wrongdoing against the Trustee have been decided.
As to the objections to the declaration of Anthony Zamora, the Court notes that most are based on lack of foundation, lack of personal knowledge, and/or speculation. There is a difference between speculation and non-expert opinion. As discussed above, FRE 701 requires three things, one of which is that it is rationally based on the witness's perception. The other two prongs (helpful to determine a fact in issue and not based on specialized knowledge) are not in question.
As noted from the docket and from the actions that the Court has observed and the content of papers filed in this case, there is a high level of hostility between these parties. This case happens to be a particularly bad mix of personalities. As happens all too often, counsel have so identified with their clients that they no longer provide the objective view and advice that they should. The Trustee is represented by her husband, whose arguments have led this Court to believe that he is excessively aggressive (at least in this case) and that he has used language in his papers that are highly charged, calling his opponent's claims "bogus." Nor has he been shy of ad hominen attacks against his opponent's counsel, referring to them as "malpractice counsel," and presenting his frankly irrelevant personal opinion that "it boggles that McCarthy, Virtue, and their growing cell of attorneys have gotten so far." In one opposition, Zamora stated (referring to McCarthy and Virtue): "Soon enough, these criminal charlatans and their collaborators will be exposed for what they really are. Rest assured, Trustee will not stop until this happens."
Adv#:1:13-01061, Dk #13, pg 2
Adv.#1:07-01291, Dk #145, pg 3, ln. 5-7.
McCarthy does not have a known relationship to his client (Virtue) and is more careful in his use of language in documents filed with the Court although it is clear during hearings that he is also unnecessarily aggressive and provoking. And while the Court has not seen most of the letters and emails that have certainly been sent by him to the Trustee's counsel, in his August 24, 2012 letter, McCarthy attacks Mr. Zamora's performance as counsel as both "silly" and "laughable," and reflective of the "typical. . .rhetorical and lack of legal analysis offered in the pleadings" of this lawsuit.
Adv#:1-13-01061, Dk #12, pg 36
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Even without a showing of overt hostility by McCarthy, the Court finds that it is a reasonable inference that Virtue used the 12/21/07 motion to reconsider as a ruse to name Z&H in the lawsuit since there was no statute of limitations or other reason not to wait until the outcome of their certain appeal of the 12/12/07 order. While the Court cannot agree that the statement that Virtue, et. al "never had an honest and sincere belief in the validity of Virtue's complaint," it is clear from the brief that Virtue knew that the only way that he could gain standing was to convince the district court that policy should allow this although the law did not. As experienced bankruptcy counsel, it is clear that McCarthy had to know that this was, at best, a long shot and that harm was likely to befall Z&H if it had to defend an appeal in the district court. Thus, I overrule the objection to paragraph 6. As to paragraph 7, I sustain it as to p. 27, lines 10-20 and overrule it as to the balance of paragraph 7.
As to the objection to paragraph 9, the record shows that the objection to the fee applications was - at least in part - based on the contention that Virtue would prevail on appeal as to Z&H, although much of it also had to do with the assertion that Virtue would appeal as to the Trustee and that if a distribution occurred, the estate would be depleted. Thus I accept that the objection was an attempt to prevent Z&H from being paid for its work in defending itself and the Trustee. The balance of the objection to paragraph 9 is sustained.
Concerning paragraph 10, the docket and the papers filed with this Court support the contention that this was all-out war and that the resources of the estate were being drained. However, as to the other allegations in the paragraph, there is nothing at this time to substantiate them. Until recently the Trustee has absolutely refused to provide any discovery on the key issue of the Virtue complaint against her. Thus the Court does not have any showing (let alone a prima facie one) that her reputation is being impugned or that she and her attorney are entitled to fees as an administrative claim. Thus, the balance of the objection to paragraph 10 is sustained.
Sustain the objection to paragraph 13, lines 13-16.
Beyond the "facts" alleged to which the objection was overruled, the matters of which the Court can take judicial notice, and the hostile language in the papers filed with this Court, the Court also finds that Z&H suffered harm during the pendency of the appeal in that it had to defend the appeal and because Virtue failed to dismiss Z&H (even without prejudice) that Z&H had to disclose to its professional liability insurer that it was a defendant in the adversary action.
Demanding admissible evidence at the outset of a case puts a unique burden on the Plaintiff and on the Court. Thus the standard is very low. The California Supreme Court has ruled that this standard is easily met, noting that even a claim of "minimal merit" will satisfy the plaintiff's burden. Navellier, 29 Cal.4th at 89. The only issue is whether - taking all of the Plaintiff's evidence as true - there is a probability that the Plaintiff can prevail on the merits. Here such a probability exists.
1. Z&H's Malicious Prosecution Claim Is Pled Sufficiently.
Z&H sufficiently pleads its claim for malicious prosecution. To prevail on a malicious prosecution claim, "the plaintiff must establish that the prior underlying action (1) was commenced by or at the direction of the defendant, or the defendant continued to prosecute it after discovering it lacked probable cause, and it was pursued to a legal termination in plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice." HMS Capital, 118 Cal. App. 4th at 213. Read as favorable to Z&H, the complaint successfully establishes each element of a malicious prosecution claim. "On December 28, 2007, Virtue, McCarthy, and HFB filed a complaint against Trustee." (Complaint, 8:24-25). Later, the complaint alleges a lack of probable cause, claiming that Virtue commenced "false accusations" with "absolutely no legal basis to do so," and "without probable cause." (Complaint, 13:25; 10:9-10; 10:11). This clearly satisfies the second element of a malicious prosecution claim. Finally, Z&H asserts that "Virtue, McCarthy, and HFB maliciously filed the Adversary Complaint," thereby establishing the third element of malice. (Complaint, 14:9-10). The Complaint is thus legally sufficient and supported by a prima facie showing of facts supporting its claim.
2. Z&H's Abuse of Process Claim Is Pled Sufficiently.
Z&H sufficiently pleads its claim for abuse of process. "To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings." Rusheen, 37 Cal.4th at 1057. Z&H's complaint alleges that Virtue "misused the Adversary Complaint for an ulterior purpose. . . with an intent to harm Z&H." (Complaint, 14:1-3). The Complaint further alleges that Virtue "misused the judicial process by using the Adversary Complaint to prevent or delay Z&H from filing interim and final fee applications" (Complaint, 9:26-28). Taken as true, this is sufficient to establish a claim for abuse of process.
V. If Z&H Prevails on Its Claim for Malicious Prosecution or Abuse of Process, It May Be Entitled to Attorneys' Fees For Defending the Underlying Gross Negligence Claim.
The general American Rule is that each party is responsible for its own attorneys' fees. Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. Cal. 1993). "In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 247 (U.S. 1975). The California Code of Civil Procedure codifies this rule stating that "except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided." Cal. Code Civ. Pro §1021.
In the state of California, attorneys' fees may be awarded for the underlying action in either a malicious prosecution or abuse of process claim. "In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney's fees." Bertero v. National General Corp., 13 Cal. 3d 43, 51 (Cal. 1974). However, neither claim allows for the award of attorneys' fees for the present litigation, only the underlying action. Thus, if Z&H prevails on the merits of either its malicious prosecution claim or its abuse of process claim, it may be entitled to the costs of litigating the gross negligence claim from which they both stem. As to the costs of the present litigation, the Court has found no case law indicating that Z&H is entitled to recover attorneys' fees for either the malicious prosecution or abuse of process claim.
VI. Conclusions
The Court denies Virtue's special motion to strike pursuant to California Code of Civil Procedure §425.16. Both parties meet their respective burdens of proof. The Court has considered Virtue's evidentiary objections and ruled on them in order to make this determination. Virtue successfully shows that the original Adversary Proceeding is protected speech under the statute and Z&H establishes a probability of prevailing on the merits of its claims. Because Z&H successfully meets its burden of proof, the anti-SLAPP statute does not apply. The claims should be heard on their merits. The request for attorneys' fees is denied.
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Geraldine Mund
United States Bankruptcy Judge
+-----------------------------------------------------------------------------+ ¦date ¦case ¦docket¦item ¦content ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦motion to modify the ¦ ¦ ¦ ¦ ¦ ¦memorandum ¦ ¦ ¦1/30/ ¦ ¦346, ¦ ¦ ¦ ¦2007 ¦00-15821¦ ¦and order as to suing ¦ ¦ ¦ ¦ ¦347 ¦trustee's ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦counsel, etc. denied ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦Trustee files disclosure ¦ ¦ ¦2/20/ ¦00-15821¦287 ¦statement ¦ ¦ ¦2007 ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦and plan ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦4/3/2007¦00-15821¦297 ¦disclosure statement approved¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦5/22/ ¦00-15821¦302 ¦plan confirmed ¦ ¦ ¦2007 ¦ ¦ ¦ ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦Virtue, through his ¦ ¦ ¦ ¦ ¦ ¦attorneys, files ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦304, ¦motion for leave to sue ¦ ¦ ¦7/31/ ¦00-15821¦ ¦trustee and ¦ ¦ ¦2007 ¦ ¦305 ¦ ¦ ¦ ¦ ¦ ¦ ¦her counsel and to employ HFB¦ ¦ ¦ ¦ ¦ ¦on ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦behalf of the estate ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦initial hearing on motion for¦ ¦ ¦8/29/ ¦ ¦ ¦leave ¦ ¦ ¦2007 ¦00-15821¦314 ¦ ¦ ¦ ¦ ¦ ¦ ¦to sue trustee and her ¦ ¦ ¦ ¦ ¦ ¦attorney ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦continued hearing on motion ¦ ¦ ¦ ¦ ¦ ¦for ¦ ¦ ¦11/14/ ¦00-15821¦ ¦ ¦ ¦ ¦2007 ¦ ¦ ¦leave to sue trustee an her ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦attorney ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦memorandum of opinion and ¦ ¦ ¦ ¦ ¦ ¦court ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦order that Virtue cannot sue ¦ ¦ ¦ ¦ ¦321, ¦ ¦ ¦ ¦12/12/ ¦00-15821¦ ¦trustee's attorney and that ¦ ¦ ¦2007 ¦ ¦322 ¦HFB ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦cannot be appointed as ¦ ¦ ¦ ¦ ¦ ¦counsel on ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦behalf of the estate ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦ ¦only deals with suit ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Trustee appeals ruling on ¦against trustee and ¦ ¦12/21/ ¦00-15821¦323 ¦ruling ¦not ¦ ¦2007 ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦that she is subject to suit ¦against Z&H; District ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Court case CV08-00093 ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦motion by Virtue to modify ¦ ¦ ¦ ¦ ¦ ¦the ¦ ¦ ¦12/21/ ¦00-15821¦327 ¦ ¦ ¦ ¦2007 ¦ ¦ ¦memorandum and order as to ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦suing trustee's counsel ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦ ¦Against all for breach¦ ¦ ¦ ¦ ¦ ¦of ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦fiduciary duty, ¦ ¦ ¦ ¦ ¦ ¦negligence, ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦gross negligence and ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦against Z&H for legal ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦malpractice. Asserts ¦ ¦ ¦ ¦ ¦ ¦that ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦ ¦this is filed as a ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦precautionary measure ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦since 12/12/07 order ¦ ¦ ¦ ¦ ¦ ¦is ¦ ¦ ¦ ¦ ¦Virtue files a complaint ¦ ¦ ¦12/28/ ¦ ¦ ¦filed ¦not final, there is a ¦ ¦2007 ¦07-1291 ¦1 ¦ ¦motion ¦ ¦ ¦ ¦ ¦against trustee and Z&H, ¦ ¦ ¦ ¦ ¦ ¦ ¦to modify by Virtue, ¦ ¦ ¦ ¦ ¦ ¦and ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦on 12/21/07 Zamora ¦ ¦ ¦ ¦ ¦ ¦filed ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Z&H] ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦adversary 07-1291 stayed ¦ ¦ ¦ ¦ ¦ ¦until ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦346, ¦pending appeal in main case ¦ ¦ ¦1/30/ ¦00-15821¦ ¦is ¦ ¦ ¦2008 ¦ ¦347 ¦ ¦ ¦ ¦ ¦ ¦ ¦complete, motion to modify ¦ ¦ ¦ ¦ ¦ ¦the ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦12/12/07 order denied ¦ ¦ +--------+--------+------+-----------------------------+----------------------¦ ¦ ¦ ¦ ¦Virtue files notice of appeal¦ ¦ ¦ ¦ ¦ ¦of ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦order granting trustee's ¦ ¦ ¦ ¦ ¦ ¦motion for ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦stay of 12/12/07 order, of ¦District Court case ¦ ¦ ¦ ¦ ¦order ¦CV08- ¦ ¦2/5/2008¦00-15821¦348 ¦ ¦ ¦ ¦ ¦ ¦ ¦denying Virtue's motion to ¦02504 ¦ ¦ ¦ ¦ ¦modify ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦the 12/12/07 order, and of ¦ ¦ ¦ ¦ ¦ ¦the ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦12/12/07 order (dkt #321, ¦ ¦ ¦ ¦ ¦ ¦346) ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦date¦case ¦docket¦item ¦content ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦ ¦because the ¦ ¦ ¦ ¦ ¦ ¦appellate ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦period ¦ ¦ ¦ ¦ ¦ ¦commenced again¦ ¦ ¦ ¦ ¦Trustee files amended notice of ¦ ¦ ¦2/8/¦ ¦ ¦ ¦on the motion ¦ ¦2008¦00-15821¦352 ¦appeal as a cross-appeal of the ¦denying the ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦12/12/07 order ¦motion to ¦ ¦ ¦ ¦ ¦ ¦modify. ¦ ¦ ¦ ¦ ¦ ¦District ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Court case ¦ ¦ ¦ ¦ ¦ ¦CV08-1478 ¦ +----+--------+------+----------------------------------------+---------------¦ ¦1/12¦ ¦ ¦Trustee files opening brief on ¦ ¦ ¦/ ¦08-0093 ¦27 ¦ ¦ ¦ ¦2009¦ ¦ ¦appeal ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦2/12¦ ¦ ¦ ¦ ¦ ¦/ ¦08-0093 ¦47 ¦Virtue files opening brief on appeal ¦ ¦ ¦2009¦ ¦ ¦ ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦3/16¦ ¦ ¦ ¦ ¦ ¦/ ¦08-0093 ¦49 ¦Trustee files reply brief on appeal ¦ ¦ ¦2009¦ ¦ ¦ ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦3/30¦ ¦ ¦ ¦ ¦ ¦/ ¦08-0093 ¦50 ¦Virtue files reply brief on appeal ¦ ¦ ¦2009¦ ¦ ¦ ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦Virtue, through counsel, opposes ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦the second application of Z&H for ¦ ¦ ¦7/14¦ ¦ ¦ ¦ ¦ ¦/ ¦00-15821¦399 ¦interim fees for several reasons ¦ ¦ ¦2009¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦including that the appeal as to the ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦suit against Z&H was pending. ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦Court deferred ruling on the fees of ¦ ¦ ¦7/28¦ ¦ ¦ ¦ ¦ ¦/ ¦00-15821¦405 ¦Z&H pending appeals concerning ¦ ¦ ¦2009¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦that issue ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦ ¦District Court ¦ ¦ ¦ ¦ ¦ ¦case 08- ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦0093, which is ¦ ¦ ¦ ¦ ¦ ¦a ¦ ¦8/21¦ ¦ ¦District Court affirms that Virtue ¦ ¦ ¦/ ¦00-15821¦408 ¦ ¦consolidation ¦ ¦2009¦ ¦ ¦may not sue Z&H ¦of three ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦appeals ¦ ¦ ¦ ¦ ¦ ¦(08-0093, 08- ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦1478, and ¦ ¦ ¦ ¦ ¦ ¦08-2504) ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦ ¦states that Z&H¦ ¦ ¦ ¦ ¦ ¦not ¦ ¦ ¦ ¦ ¦first amended complaint filed only ¦ ¦ ¦5/11¦ ¦ ¦ ¦named as a ¦ ¦/ ¦07-1291 ¦12 ¦against trustee and bonding ¦defendant ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦company ¦based on 12/12/¦ ¦ ¦ ¦ ¦ ¦07 order ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦precluding that¦ +----+--------+------+----------------------------------------+---------------¦ ¦6/8/¦ ¦438, ¦Trustee and Z&H file third interim ¦ ¦ ¦2011¦00-15821¦ ¦ ¦ ¦ ¦ ¦ ¦439 ¦application for fees ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦Virtue opposes second and third ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦interim fee application of trustee ¦ ¦ ¦6/15¦ ¦ ¦ ¦ ¦ ¦/ ¦00-15821¦442 ¦and Z&H as premature until the ¦ ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦allegations of wrongdoing against ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦the trustee have been decided ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦6/29¦ ¦ ¦Court takes off calendar the third ¦ ¦ ¦/ ¦00-15821¦447 ¦interim fee requests as to trustee and ¦ ¦ ¦2011¦ ¦ ¦her counsel - pending appeal of 07-1291 ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦motion to dismiss ruled on, granted ¦ ¦ ¦10/ ¦ ¦ ¦ ¦ ¦ ¦26/ ¦07-1291 ¦28 ¦as to bonding company, but ¦ ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦otherwise denied ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦ ¦states that Z&H¦ ¦ ¦ ¦ ¦ ¦not ¦ ¦ ¦ ¦ ¦second amended complaint filed ¦ ¦ ¦11/4¦ ¦ ¦ ¦named as a ¦ ¦/ ¦07-1291 ¦29 ¦only against trustee and bonding ¦defendant ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦company ¦based on 12/12/¦ ¦ ¦ ¦ ¦ ¦07 ¦ ¦ ¦ ¦ ¦ ¦orderprecluding¦ ¦ ¦ ¦ ¦ ¦that ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦Trustee and bonding company file ¦ ¦ ¦12/ ¦ ¦ ¦ ¦ ¦ ¦12/ ¦07-1291 ¦35 ¦nswer to second amended ¦ ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦complaint ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦ ¦ ¦ ¦Trustee files counterclaim and third ¦ ¦ ¦12/ ¦ ¦ ¦ ¦ ¦ ¦16/ ¦07-1291 ¦37 ¦party claim against Virtue, ¦ ¦ ¦2011¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦McCarthy, and HFB ¦ ¦ +----+--------+------+----------------------------------------+---------------¦ ¦1/18¦ ¦ ¦answers to counterclaim and third ¦ ¦ ¦/ ¦07-1291 ¦48, 49¦ ¦ ¦ ¦2012¦ ¦ ¦party claim filed ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦date ¦case ¦docket¦item ¦content ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦counterclaimants file anti-SLAPP¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦motion to strike counterclaim ¦ ¦ ¦2/17/ ¦ ¦ ¦and ¦ ¦ ¦2012 ¦07-1291¦53 ¦ ¦ ¦ ¦ ¦ ¦ ¦third party claim and for ¦ ¦ ¦ ¦ ¦ ¦judgment ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦on the pleadings ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦counterclaim and third party ¦ ¦ ¦ ¦ ¦ ¦claim ¦ ¦ ¦4/30/ ¦07-1291¦63 ¦ ¦ ¦ ¦2012 ¦ ¦ ¦are dismissed with prejudice on ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦motion to dismiss ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦Trustee files appeal of ¦District Court case ¦ ¦5/ ¦ ¦ ¦dismissal of ¦12- ¦ ¦1542012 ¦07-1291¦67 ¦ ¦ ¦ ¦ ¦ ¦ ¦counterclaim and third party ¦4981. ¦ ¦ ¦ ¦ ¦claim ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦Trustee files appeal of order ¦District Court case ¦ ¦ ¦ ¦ ¦ ¦12- ¦ ¦9/26/12 ¦07-1291¦105 ¦granting counter-defendant's ¦ ¦ ¦ ¦ ¦ ¦ ¦8458 ¦ ¦ ¦ ¦ ¦motion for attorney's fees ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦Z&H files suit against Virtue, ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦3/20/ ¦ ¦ ¦McCarthy, and HFB for malicious ¦ ¦ ¦2013 ¦13-1061¦1 ¦ ¦ ¦ ¦ ¦ ¦ ¦prosecution and abuse of process¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦for filing adv. 07-1291 ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦Virtue and his attorneys file a ¦ ¦ ¦4/22/ ¦ ¦ ¦ ¦ ¦ ¦2013 ¦13-1061¦5 ¦motion to dismiss the complaint ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦under anti-SLAPP ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦District Court dismisses ¦ ¦ ¦ ¦ ¦ ¦Trustee's ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦appeal of dismissal of ¦District Court case ¦ ¦5/6/13 ¦07-1291¦147 ¦counterclaim ¦12- ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦and third party claim for ¦4981 ¦ ¦ ¦ ¦ ¦failure to ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦timely file her opening brief ¦ ¦ +--------+-------+------+--------------------------------+--------------------¦ ¦ ¦ ¦ ¦District Court dismisses ¦ ¦ ¦ ¦ ¦ ¦Trustee's ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦appeal of order granting ¦ ¦ ¦ ¦ ¦ ¦counter- ¦District Court case ¦ ¦ ¦ ¦ ¦ ¦12- ¦ ¦5/6/13 ¦07-1291¦147 ¦defendant's motion for ¦ ¦ ¦ ¦ ¦ ¦attorney's ¦8458 ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦fees for failure to timely file ¦ ¦ ¦ ¦ ¦ ¦her ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦opening brief ¦ ¦ +-----------------------------------------------------------------------------+
NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify):_ MEMORANDUM OF OPINION DENYING DEFENDANT'S SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §425.16 REGARDING DOCKET NUMBER 7 was entered on the date indicated as aEntered@ on the first page of this judgment or order and will be served in the manner stated below: 1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) b Pursuant to controlling General Orders and LBRs, the foregoing document was served on the following persons by the court via NEF and hyperlink to the judgment or order. As of (date)_________, the following persons are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to receive NEF transmission at the email addresses stated below.
• Daniel J McCarthy dmccarthy@hillfarrer.com, spadilla@hillfarrer.com;docket@hillfarrer.com
• Won M Park wpark@wcb-law.com, maguiniga@wcb-law.com;dsokol@wcb-law.com
• United States Trustee (SV) ustpregionl6.wh.ecf@usdoj.gov
• Anthony N Zamora zamora3@aol.com
[ ] Service information continued on attached 2. SERVED BY THE COURT VIA UNITED STATES MAIL: A copy of this notice and a true copy of this judgment or order was sent by United States mail, first class, postage prepaid, to the following persons and/or entities at the addresses indicated below:
[ ] Service information continued on attached page 3. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or order which bears an aEntered@ stamp, the party lodging the judgment or order will serve a complete copy bearing an aEntered@ stamp by United States mail, overnight mail, facsimile transmission or email and file a proof of service of the entered order on the following persons and/or entities at the addresses, facsimile transmission numbers, and/or email addresses stated below:
[ ] Service information continued on attached page