CHAVEZ, J.—
Elizabeth Karnazes (appellant) appeals from an order granting a special motion to strike appellant's complaint filed by Ashley D. Posner (respondent) pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion).
We find no error in the trial court's ruling; therefore we affirm the order.
Appellant makes the following contentions: (1) the trial court violated the law by failing to provide appellant with a copy of the tentative ruling that was provided to respondent prior to oral argument on the anti-SLAPP motion; (2) respondent's motion was untimely and should have been denied for that reason; (3) respondent's motion should have been denied because respondent is a person primarily engaged in the business of selling services under the
In 2008, appellant invested the assets in her home equity line of credit with Tyler Ares (Ares), the adult son of a friend of appellant's. Ares promised to prudently invest the funds, taking no significant risks. Ares further promised that appellant would make enough profit to pay the interest on the home equity line of credit plus a small profit. Ares stated that he would treat the assets as if they were his mother's assets and would not lose the assets under any circumstances. Ares, and the other defendants, knew that appellant was a disabled American more susceptible to defendants' wrongful acts than an able person and knew or should have known that appellant had no training in economics, was not an experienced investor, and needed her assets for financial support.
Ares and the other defendants did not safely and prudently invest appellant's assets. Instead they lost her assets plus an amount that continues to accrue on her home equity line of credit.
Appellant asserts that respondent promised appellant he would help set up a repayment plan for Ares and the other defendants to pay back appellant the assets that were lost. However, instead of helping set up a repayment plan, respondent obtained privileged information from appellant to assist respondent in preventing appellant from recovering the damages caused by the actions of Ares and the other defendants.
Respondent is an attorney who was retained by his nephew, Ares, in October 2008 concerning claims made against Ares by appellant. Respondent knew appellant to be a friend of his sister, Ares's mother. Beginning on October 26, 2008, appellant and respondent exchanged 16 messages upon which all of appellant's claims against respondent are based. In these e-mails, respondent expressly informed appellant that he was acting as Ares's attorney. Specifically, on October 29, 2008, respondent stated: "Please stop attempting to contact [Ares] directly. I represent him as his attorney and he
On October 12, 2010, appellant filed her complaint in Santa Clara County Superior Court. The complaint named as defendants Ares, his mother Gabrielle Ares, respondent, Gunn-Allen, ECHO trade, and Does 1-100. It asserted causes of action for negligence, fraud, breach of contract, common counts, and exemplary damages.
Appellant's first amended complaint (FAC) was filed on December 5, 2011. The FAC alleged 22 causes of action against defendants. The 18th through 22nd causes of action alleged fraud, fraudulent concealment, and promissory fraud against respondent. Specifically, appellant alleged that respondent falsely promised to help appellant set up a repayment plan and contract for Ares, Gabrielle Ares, and the other defendants. Respondent was obtaining privileged information from appellant and preventing appellant from recovering her damages.
A motion to change venue was granted, and on August 7, 2012, the Los Angeles County Superior Court received a notice of incoming case transfer and papers and documents on transfer.
On August 13, 2012, respondent filed his anti-SLAPP motion, arguing that the 18th through 22nd causes of action in appellant's complaint constituted a strategic lawsuit against public policy. The alleged fraudulent misrepresentations occurred in anticipation of litigation. Respondent argued that he was representing appellant's stockbroker after the time of appellant's alleged stock market losses. Therefore, respondent argued, the speech between appellant and respondent is constitutionally protected and absolutely privileged under Civil Code section 47, subdivision (b). Respondent argued that his motion was timely because a motion to change venue operates as a stay of proceedings. Following the transfer of an action upon an order changing venue, California Rules of Court, rule 3.1326 starts a new 30-day period of time to file a responsive pleading to the complaint. Respondent attached a declaration indicating that he had been retained by Ares, his nephew, in October 2008 concerning claims made against him by appellant. Respondent stated that he had never met appellant, had never represented her, and that all communications with her relevant to this lawsuit were undertaken in his role as Ares's attorney.
Addressing the second prong of the test under section 425.16, the trial court found that appellant failed to establish a probability of prevailing on her claims against respondent. Appellant failed to provide any evidence suggesting that respondent made misrepresentations to appellant or that appellant suffered damage from any statements made by respondent.
On January 7, 2013, appellant filed her notice of appeal from the order.
Actions subject to dismissal under section 425.16 include those based on any of the following acts: "(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." (§ 425.16, subd. (e).)
"`Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citations.]" (Nygard, supra, 159 Cal.App.4th at p. 1036.)
Section 425.16, subdivision (f) provides: "The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing."
Appellant argues that respondent was served with the FAC on January 25, 2012, and had no viable grounds to claim he could not have timely filed his anti-SLAPP motion when he sought a change of venue or on some earlier date than August 13, 2012.
The threshold question in evaluating respondent's anti-SLAPP motion is whether appellant's complaint arises from protected activity. (Nygard, supra, 159 Cal.App.4th at p. 1035.) The trial court found that it does. We agree.
In determining whether the moving party has met his burden, the trial court may consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].)
Respondent included with his motion a declaration attaching e-mail communications with appellant dated between October 26, 2008, and December 4, 2008. The e-mail communications include a recitation of the reasons that respondent believed Ares should have no concern for any criminal or civil liability, and a request that "If you feel compelled to sue Tyler or anyone else . . . I would appreciate receiving a courtesy copy of any complaint." Two days later, respondent again wrote to appellant indicating that he had reviewed all written statements made by appellant to Ares's employer and reiterating that respondent "cannot see why Tyler or anyone else has any legal or any other sort of responsibility to make any offer to you based upon your trading losses." Accordingly, respondent "respectfully reject[ed] [appellant's] demands on Tyler's behalf and consider[ed] this matter closed." Respondent again requested a courtesy copy of any complaint that appellant might file. The same day, respondent wrote a second e-mail to appellant which stated clearly: "Tyler will not pay you any money for all of the reasons I have given to you. Please stop attempting to contact him directly. I represent him as his attorney and he will not communicate with you other than through counsel."
Respondent later forwarded appellant a check representing the balance of the funds she had invested. After appellant threatened to contact Ares directly,
We find, as did the trial court, that all of respondent's communications with appellant occurred within the context of anticipated litigation and settlement. The communications include a review of possible claims and references to Ares as respondent's client. In addition, they contain a request for a copy of any complaint that might be filed in the matter under discussion. Thus, we find that respondent met his burden of showing that the claims against him arose from protected activity.
Appellant asserts that the trial court violated her rights by failing to provide her with a copy of the tentative ruling provided to respondent prior to oral argument on respondent's anti-SLAPP motion. Appellant argues that she was greatly prejudiced because she did not know the basis or logic behind the court's tentative ruling, and did not know how to tailor her arguments to address the issues raised in the tentative ruling.
In support of her claim that her rights have been violated, appellant string cites several authorities, none of which support her claim that the trial court was required to provide her an electronic copy of the tentative ruling under the circumstances of this case. Appellant first makes general citations to article IV of the United States Constitution, Fourteenth Amendment; the California Constitution, article I; title 42 of the United States Code sections 1981 and 1983; and the Unruh Civil Rights Act (Civ. Code §§ 51, 52). Appellant provides no discussion of any law applying these provisions to require a trial court to provide a copy of its tentative ruling to an individual appearing by telephone when that individual has not notified the court of her telephonic appearance. Appellant also cites Mitchum v. Foster (1972) 407 U.S. 225 [32 L.Ed.2d 705, 92 S.Ct. 2151], without explanation of how the case is relevant to her claims here. Appellant generally cites the Los Angeles Superior Court Local Rules, without referencing a specific rule relevant to the issue she has raised.
Appellant argues that respondent's motion should have been denied because respondent falls under the exception set forth in section 425.17, subdivision (c).
Section 425.17, subdivision (c) provides:
Appellant argues that respondent is primarily engaged in the business of selling services, and that his statement or conduct was made in the course of delivering his services, and that his intended audience was the actual customer, appellant. The trial court disagreed, finding that the only evidence presented in the case was that respondent was engaged in services as an attorney. Appellant asserts, without citation to any case law, that attorneys are subject to section 425.17, the commercial speech exception to the anti-SLAPP statute.
We are persuaded by the reasoning in Flores. Similarly, here, the statements made by respondent were not statements of fact about his services for the purpose of promoting his services, nor were the statements made to an intended buyer or customer. All statements were made in the context of respondent's representation of Ares in prelitigation negotiations with appellant. The commercial speech exception set forth under section 425.17 does not apply.
Appellant asserts that respondent's alleged actions in defrauding appellant were illegal as a matter of law and thus did not come within the protections of the anti-SLAPP law. Appellant cites Mindys Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d 590, without explanation of its relevance. In Mindys, it was held that the attorney defendant's action of filing a trademark application was protected by the anti-SLAPP law, but that the claims of malpractice,
Appellant also cites, without discussion, Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532 [52 Cal.Rptr.3d 712], a legal malpractice case, and Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820 [60 Cal.Rptr.2d 780], an accounting malpractice case. Neither case suggests that an attorney's prelitigation communications on behalf of his client, such as those at issue here, may be considered illegal as a matter of law.
The order is affirmed. Respondent is awarded costs of appeal.
Ashmann-Gerst, Acting P. J., and Hoffstadt, J., concurred.