The opinion
Filed 7/11/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
WASTEXPERTS, INC., B325299
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV19512)
v.
ARAKELIAN ENTERPRISES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Monica Bachner, Judge. Reversed.
Frost, Christopher Frost, John D. Maatta and Nicholas Lauber for
Plaintiff and Appellant.
Manatt, Phelps & Phillips, Ronald B. Turovsky, Donald R. Brown and
Benjamin G. Shatz for Defendant and Respondent.
INTRODUCTION
Here we conclude that a declaratory relief claim filed in response to an
attorney’s cease and desist letter in a waste collection dispute is not a
strategic lawsuit against public participation (SLAPP). (Code Civ. Proc.,
§ 425.16.)1 We also conclude that communications sent to non-parties about
the dispute fall within the commercial speech exemption to the anti-SLAPP
law. (§ 425.17, subd. (c).) Appellant WasteXperts, Inc. (WasteXperts)
appeals from the trial court’s order granting a motion to strike its entire
complaint. We reverse. We publish to draw attention to our concluding note
on civility and persuasive brief writing.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Complaint
In June 2022, WasteXperts filed a complaint against both respondent
Arakelian Enterprises, Inc. dba Athens Services (Athens) and the City of Los
Angeles (City). The complaint alleged that Athens holds a waste collection
franchise from the City. Los Angeles Municipal Code (LAMC) section 66.01
prohibits anyone from hauling waste on City streets without such a franchise,
unless they have an express permit from the City.
The contract between Athens and the City permits Athens to impose a
“Distance Charge” on individual property owners every time an Athens
employee must move a collection bin from its permanent location on the
owner’s property to the curbside for collection. Property owners may avoid
1 All subsequent statutory references are to the Code of Civil Procedure,
unless otherwise noted.
2
this charge by moving the bins themselves, in advance of collection. The bins
belong to Athens, not the property owners.
WasteXperts charges commercial and multi-family residential property
owners a fee to manage their “on-site” waste gathering; this fee includes
moving collection bins from their permanent locations on the property to the
curbside for Athens to collect. Athens sent WasteXperts a “cease and desist”
letter, arguing that WasteXperts was not legally permitted to handle
Athens’s bins. The letter came from Athens’s eventual trial counsel and
complained that the competition from WasteXperts was “extremely damaging
to Athens’ business operations, financial interests, and economic prospects.”
It threatened that Athens would “exercise all remedies” and “seek damages”
for this “tortious conduct” which it asserted was “illegal, unfair, and
irresponsible.” If WasteXperts did not stop moving the bins to the curb,
Athens would “proceed with enforcing [its] rights without any further notice.”
At the same time, Athens began refusing to allow WasteXperts to
reschedule collection days on behalf of its clients. Athens also sent notices
directly to those clients, demanding that the clients compel WasteXperts to
stop moving Athens’s bins.
In its complaint, WasteXperts sought seven judicial declarations
involving both Athens and the City: (1) that the City has no authority to
prevent a property owner from hiring an on-site waste manager, (2) that the
City cannot give Athens the exclusive franchise to move collection bins to the
curb, (3) that the City cannot require a franchise agreement for on-site waste
management, (4) that the contract between the City and Athens did not give
Athens a franchise for on-site waste management, (5) that the City did not
give Athens the exclusive franchise for moving collection bins to the curb, (6)
that ratepayers are not required to allow Athens to move collection bins, and
3
(7) that Athens violated its contract with the City when it declined requests
to reschedule collection days.
The complaint also asserted tort claims against Athens for interference
with contract, interference with prospective economic advantage, unfair
competition, and trade libel.
II. Anti-SLAPP Motion and Discovery Request
Athens responded with an anti-SLAPP motion to strike the entire
complaint.2 The motion was filed and served on August 17, 2022. Under
section 425.16, subdivision (g), discovery was automatically stayed as of that
date.
Three court days before the opposition was due, WasteXperts asked
Athens if it would stipulate to allow WasteXperts to amend the complaint; as
an alternative, WasteXperts asked if Athens would agree to continue the
special motion to strike so that WasteXperts could take limited discovery.
Athens declined both requests the next day.
WasteXperts then filed an ex parte application asking the trial court to
(a) shorten time on a motion to lift the discovery stay and (b) continue the
hearing on the anti-SLAPP motion. The application was denied the same day
the opposition was due.
III. Trial Court’s Order
After hearing argument and taking the matter under submission, the
court granted the anti-SLAPP motion. On the first prong of the analysis, the
court found that each cause of action was based on Athens’s communications
2 The City was not a party to the motion and is not a party to this appeal.
4
to WasteXperts and its clients. The court concluded that these
communications anticipated litigation and were therefore protected activity.
It also held that the commercial speech exemption contained in section
425.17, subdivision (c) did not apply here.
Proceeding to the second prong, the court determined that WasteXperts
had no probability of obtaining any of the seven judicial declarations it
sought. The court reasoned there was no merit to any argument regarding
legal limitations on the City’s power, Athens had the correct interpretation of
its contract with the City, and WasteXperts had no standing to dispute that
interpretation. Finally, the court found that each tort claim was barred by
the litigation privilege contained in Civil Code section 47, subdivision (b).3
WasteXperts timely appealed the order granting the motion.4
DISCUSSION
WasteXperts challenges both the denial of its request for limited
discovery and the anti-SLAPP order. It argues that none of its claims arise
from activity protected by section 425.16. It contends that the “commercial
speech” exemption contained in section 425.17 applies here. It also claims
that it has shown a probability of prevailing on the merits.
3 The court pointed out certain additional flaws in each tort claim.
WasteXperts does not address that portion of the court’s analysis.
4 Athens filed a motion to dismiss the appeal as moot because
WasteXperts did not appeal from the subsequent judgment entered by the
court. We denied that motion. Respondent argues the point again in its
brief. We decline the invitation to reconsider the previous ruling. An order
granting an anti-SLAPP motion as to the entire complaint is itself a
judgment. (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992–997.)
5
I. Analysis
Section 425.16, subdivision (b)(1) provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.”
“Anti-SLAPP motions are evaluated through a two-step process.
Initially, the moving defendant bears the burden of establishing that the
challenged allegations or claims ‘aris[e] from’ protected activity in which the
defendant has engaged.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the defendant carries its
burden, the plaintiff must then demonstrate its claims have at least ‘minimal
merit.’” (Ibid.) At this second stage, 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 v. Schnitt (2016)
1 Cal.5th 376, 384–385.)
“We review de novo the grant or denial of an anti-SLAPP motion.
[Citation.] We exercise independent judgment in determining whether, based
on our own review of the record, the challenged claims arise from protected
activity. [Citations.] In addition to the pleadings, we may consider affidavits
concerning the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as true and
consider only whether any contrary evidence from the defendant establishes
6
its entitlement to prevail as a matter of law.” (Park, supra, 2 Cal.5th at p.
1067.)
A. Protected Activity
A cause of action arises from protected activity where the act
underlying the cause of action, “the wrong complained of,” is itself protected.
(Park, supra, 2 Cal.5th at p. 1060; City of Cotati v. Cashman (2002) 29
Cal.4th 69, 77 (Cotati).) Section 425.16, subdivision (e)(2) protects “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.” Communications may be
protected under that subdivision if they concern the subject of a present
dispute and litigation is “‘“contemplated in good faith and under serious
consideration.”’” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268
(Neville); see also Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1115.)
Athens argues that the entire lawsuit is based on its prelitigation
correspondence, either directly with WasteXperts or with their mutual
clients. WasteXperts disagrees; it also contends that the commercial speech
exemption applies to take these statements out of the protection of section
425.16.
We conclude that the claim for declaratory relief is not based on the
parties’ prelitigation correspondence, and therefore does not arise from
protected activity. We additionally conclude that the remaining claims are
based on correspondence which was sent in anticipation of litigation and
7
would therefore be protected activity under section 425.16.5 However, we
also hold that the commercial speech exemption applies to remove that
protection here.
1. Declaratory Relief
Because an action for declaratory relief may be filed in advance of an
actual injury, identifying the “act” underlying the claim can be difficult.
Declaratory relief claims arise from the dispute to be resolved, and that
dispute itself is necessarily based on at least two competing positions.
(Episcopal Church Cases (2009) 45 Cal.4th 467, 477–478.) Prelitigation
communications which express those positions “may provide evidentiary
support for the complaint without being a basis of liability.” (Graffiti
Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207,
1215.) To separate communications which form the source of the dispute
from those that merely provide evidence of it, courts ask whether “the same
dispute would exist” if there were no pending threat of litigation. (Gotterba v.
Travolta (2014) 228 Cal.App.4th 35, 42 (Gotterba).)6
5 We, like the trial court, need not address Athens’s argument that these
communications also constitute statements made in connection with an issue
under executive review. Because the declaratory relief action does not arise
from the communications, it does not matter whether those communications
relate to an issue under executive review. Because the tort claims do arise
from prelitigation communications, there is no need to inquire into executive
review.
6 At oral argument, counsel for Athens said WasteXperts had forfeited
this issue by failing to cite Gotterba in their opening brief. However, Gotterba
was cited to the trial court, the opening brief makes the same argument that
appears in Gotterba, and the respondent’s brief addressed the argument at
length. (See Nelsen v. Legacy Partners Residential, Inc. (2012) 207
Cal.App.4th 1115, 1122.) Therefore, appellant’s failure to cite Gotterba until
8
In arguing that the declaratory relief claim arises from protected
activity, Athens points to the “numerous” times the complaint references the
communications. Athens also argues that the action was filed after the
communications were sent and would not have been filed if they hadn’t been
sent. Athens asserts that without the communications, there would be
“nothing left in the complaint.”
But there would be something left in the complaint. Athens has a
contract with the City that gives it the “exclusive” right to provide both
garbage hauling and “Extra Services” within its assigned territory; the
contract defines “Extra Services” to include “Distance Charges” for moving
collection bins to the curbside for collection. However, LAMC section 66.28
provides a property owner or “his agents” the right to move those collection
bins. There is a dispute here over who has the right to move the bins when
they are on the property owner’s premises; more specifically, there is a
dispute about whether Athens has the exclusive right to move them or the
LAMC creates an exception that permits WasteXperts to do so as well. The
dispute arises from the fact that WasteXperts has been moving the bins, not
from any communications between the parties after WasteXperts began to do
so.
The communications sent by Athens establish that the dispute is real
and ongoing, the “actual controversy” required for declaratory relief.
(§ 1060.) If the communications had contained no reference to legal action,
express or implied, the disputed overlap between the parties’ services would
still exist. The heart of Athens’s letter to WasteXperts is its claim that
their reply neither forfeits the issue nor prevents this court from applying
Gotterba. (See City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477, 1495–
1496, fn. 17.)
9
“WasteXperts should be aware that it cannot move property without the
consent of its owner.” Even if that claim were not buttressed with threats of
litigation, WasteXperts would still be moving Athens’s bins, and Athens
would still want them to stop. (See Gotterba, supra, 228 Cal.App.4th at p. 42
[“[i]f the threats of litigation were removed from [the] demand letters, the
same dispute would exist”].) And if the letter caused WasteXperts to seek
legal resolution of that dispute, the lawsuit arises from the dispute, not the
communication. (Cotati, supra, 29 Cal.4th at p. 78.)
Athens relies on Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th
459 (Lunada), South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193
Cal.App.4th 634 (South Sutter), and CKE Restaurants, Inc. v. Moore (2008)
159 Cal.App.4th 262 (CKE). None of these cases is on point. In both Lunada
and CKE, the protected activity was a formal notice required by consumer
protection statutes as a predicate to litigation; without the notices, there
would have been no actual controversy between the parties. (§ 1060; Lunada,
supra, 230 Cal.App.4th at pp. 470–473 [notice under the Consumers Legal
Remedies Act]; CKE, supra, 159 Cal.App.4th at pp. 266–267, 271 [notice
under Prop. 65].) South Sutter involved a plaintiff that had lost a previous
anti-SLAPP motion and attempted to re-file the same lawsuit as a
declaratory relief action. (South Sutter, supra, 193 Cal.App.4th at pp. 647–
649, 658–667.)
Here, none of the communications at issue created the dispute about
whether WasteXperts may move the collection bins from their place on a
property owner’s premises to the curbside. The portion of the complaint that
seeks declaratory relief does not ask Athens to clarify or retract any of its
communications. (See Gotterba, supra, 228 Cal.App.4th at p. 42.) An action
that seeks to resolve an existing disagreement does not arise from protected
10
activity merely because one party first “communicated their disagreement” to
the other. (Ibid.) It would be an “absurd result that a person receiving a
demand letter . . . would be precluded from seeking declaratory relief” to
resolve the dispute raised in the letter. (Ibid.)
The cause of action for declaratory relief does not arise from protected
activity.
2. Tort Claims
The remaining causes of action allege specific injuries that arise
directly from communications sent by Athens. Each of the two interference
torts is based on the effect of communications sent by Athens to the parties’
mutual clients. The unfair competition and trade libel claims are based on
the content of those same communications—alleging that they falsely accused
WasteXperts of improperly handling Athens’s collection bins. The trial court
correctly ruled that these communications were sent in anticipation of
litigation and therefore would ordinarily be protected by section 425.16,
subdivision (e)(2).
Whether communications properly anticipate litigation is a question of
fact. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th
1232, 1251.) The communications themselves are sufficient to establish that
fact; no other evidence of the sending party’s state of mind is required.
(Neville, supra, 160 Cal.App.4th at p. 1269; see also Trinity Risk
Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59
Cal.App.5th 995, 1005 [independently reviewing contents of correspondence].)
11
One letter and one email exchange were admitted into evidence.7 The
letter is signed by Athens’s general counsel and addressed to the client’s legal
department. It says that the client may be “aiding in ongoing violations of
the Municipal Code” and that the client “is required to accept our services as
a matter of law.” After citing various portions of the contract and the LAMC,
the letter closes with the statement that Athens “is willing to work with
[client] to deliver cost savings, but we cannot allow the situation . . . to
continue unaddressed.”
The email exchange, between an Athens sales manager and a client
administrator, begins with the Athens employee mentioning WasteXperts
and asserting that other companies are “not allowed to pull our equipment
out; it is a liability and operational issue.” When asked for clarification,
Athens responded that WasteXperts is “in violation” of “LA municipal codes
and contract terms” and that “the City of Los Angeles has confirmed our
position.” Athens acknowledged that WasteXperts was providing services at
a lower price and expressed willingness to negotiate on costs, but its “primary
concern” was that WasteXperts “immediately cease” moving the collection
bins. The exchange closed with a flat demand for WasteXperts to “cease
service immediately.”
These communications, when combined with the demand letter Athens
sent directly to WasteXperts, clearly show that Athens was contemplating
litigation seriously and in good faith. (See Neville, supra, 160 Cal.App.4th at
p. 1269.) WasteXperts points out that both the letter and the email contain
7 WasteXperts attempted to introduce other evidence of interfering acts
via the declaration of Erica Boulting. However, the trial court sustained
objections to that evidence. WasteXperts does not challenge those rulings on
appeal.
12
suggestions that Athens would negotiate costs with the clients. However, the
tenor of the notices was to invoke the law and prevent WasteXperts from
moving Athens’s collection bins.
WasteXperts also argues that neither the phrase “cease and desist” nor
“anticipation of litigation” appear in the communications to its clients, and
Athens never actually filed the lawsuit it threatened in its demand letter to
WasteXperts.8 Those points are not persuasive. The fact that WasteXperts
ultimately beat Athens to the punch by filing its action first says nothing
about Athens’s intentions at the time it sent the communications. And the
presence or absence of magic words does not change the nature of a
communication. The evidence shows Athens’s communications with the
clients anticipated litigation, and therefore would be protected activity,
unless an exemption applies to remove that protection.
3. Commercial Speech Exemption
WasteXperts argues that, even if Athens’s communications with their
mutual clients would ordinarily be protected by section 425.16, subdivision
(e)(2), they are exempted from that protection by section 425.17, subdivision
(c). Section 425.17, subdivision (c) provides, in relevant part: “Section 425.16
does not apply to any cause of action brought against a person primarily
engaged in the business of selling or leasing goods or services . . . arising from
any statement or conduct by that person if both of the following conditions
exist: [¶] (1) The statement or conduct consists of representations of fact
8 WasteXperts also argues that its claims were based on harassing
conduct rather than speech. Because we conclude that the commercial
speech exemption applies to the communications sent by Athens to the
clients, we need not address this argument.
13
about that person’s or a business competitor’s business operations, goods, or
services, that is made for the purpose of obtaining approval for, promoting, or
securing sales or leases of, or commercial transactions in, the person’s goods
or services, or the statement or conduct was made in the course of delivering
the person’s goods or services. [¶] (2) The intended audience is an actual or
potential buyer or customer, or a person likely to repeat the statement to, or
otherwise influence, an actual or potential buyer or customer, or the
statement or conduct arose out of or within the context of a regulatory
approval process, proceeding, or investigation.”
This exemption from the anti-SLAPP law is narrowly construed.
(Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 22 (Simpson).)
The exemption has four elements: (1) the defendant is “‘engaged in the
business of selling or leasing goods or services,’” (2) the claim arises from
“‘representations of fact’” about defendant’s or a business competitor’s
“‘operations, goods, or services,’” (3) the representations were made for the
purpose of selling or delivering the defendant’s goods or services, and (4) the
intended audience is “an actual or potential buyer or customer, or a person
likely to repeat the statement to, or otherwise influence, an actual or
potential buyer or customer.” (Xu v. Huang (2021) 73 Cal.App.5th 802, 814
(Xu), quoting in part Simpson, supra, 49 Cal.4th at p. 30.) WasteXperts
bears the burden of proving that the exemption applies here. (Simpson,
supra, 49 Cal.4th at p. 22.)
The trial court found that the exemption did not apply, for two reasons.
First, the court determined that the exemption only applies to comparative
advertising. Second, the court found, based on allegations in the complaint,
that Athens was not a “business competitor” of WasteXperts. We disagree.
14
a. Comparative Advertising
The court limited the commercial speech exemption to comparative
advertising based on language from FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133, 147 (FilmOn), which says that the statute only applies
to a subset of commercial speech, “specifically, comparative advertising.”9
However, that language was merely the final clause of a sentence in which
the Court observed that the commercial speech exemption does not cover
everything that may possibly be described as commercial speech. (Ibid.) The
issue there was not whether the commercial speech exemption applied; the
parties had stipulated that it did not. (Id. at p. 147 fn. 4.) The issue was
whether commercial context could be considered in determining whether
speech is protected under section 425.16, subdivision (e)(4). (Id. at pp. 146–
148.)
Because no case is authority for a proposition not therein considered,
nothing in FilmOn “precludes the applicability of the commercial speech
exemption under the facts before us.” (Neurelis, Inc. v. Aquestive
Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 787, fn. 5 (Neurelis); see also
Xu, supra, 73 Cal.App.5th at pp. 814 & fn. 13, 816 & fn. 15 [noting that the
phrase “comparative advertising” does not appear in the statute].) FilmOn
did not add a fifth element to the exemption, nor does it implicitly require
courts to make a preliminary finding about whether the case involved
“comparative advertising.” (See Neurelis, supra, 71 Cal.App.5th at pp. 787–
9 The trial court also cited Demetriades v. Yelp, Inc. (2014) 228
Cal.App.4th 294, 309, which says that section 425.17, subdivision (c) “is
aimed squarely at false advertising claims.” But Demetriades involved a false
advertising claim. (Id. at p. 298.) The court was not trying to define the
outer limits of the statute; the court was pointing out that the claims at hand
were the statute’s primary target. (Id. at p. 308–310.)
15
788 & fn. 5.) Communications fall into the commercial speech exemption if
they meet the elements of the exemption; no other analysis is required.
b. Business Competitors
In its complaint, WasteXperts alleges it did not set out to compete with
Athens. During the prelitigation exchange of demand letters, WasteXperts
told Athens that competition between the two was unnecessary. But
statements about what a party intended when they opened their business, or
later comments about possible compatibility between two businesses, do not
constitute a concession as to whether the businesses are presently competing.
Parties are competitors when the goods or services they offer overlap;
they are not competitors when their offered goods or services do not overlap.
(See Simpson, supra, 49 Cal.4th at pp. 32–33 [comparing a lawyer with a
manufacturer of galvanized screws]; Muddy Waters, LLC v. Superior Court
(2021) 62 Cal.App.5th 905, 920 [comparing a financial analyst and short
seller with an aluminum merchant].) Here, Athens tried to induce
WasteXperts to stop moving collection bins on the property owner’s premises,
claiming that only Athens may provide that service.
It is not disputed that both parties perform at least that one identical
service, for which both parties charge a fee. It is clearly Athens’s position
that the competition is illegal because WasteXperts is in violation of the City
franchise agreement. Nevertheless, there is a direct competitive relationship
between the two companies. Athens’s communications with the parties’
mutual clients fall under the commercial speech exemption contained in
16
section 417.25, subdivision (c).10 Therefore, they do not constitute protected
activity, and the tort claims asserted by WasteXperts do not arise from
protected activity.
B. Probability of Prevailing on the Merits
Because we conclude that none of the claims asserted by WasteXperts
arises from protected activity, we need not decide whether WasteXperts
established a probability of prevailing on the merits. (Gotterba, supra, 228
Cal.App.4th at p. 43.) We express no opinion on the applicability of the
litigation privilege as a defense to any cause of action in the complaint, nor
on any other substantive challenge to the complaint. Likewise, we need not
address the request to conduct limited discovery.
II. Civility
Having resolved the merits of the appeal, we cannot allow the tone of
the briefing to pass without comment. Appellant’s briefs use inappropriately
harsh terms to launch needless and unsubstantiated attacks on the decisions
made by the trial judge, as well as against the opposing party and its
lawyers. We recognize WasteXperts may not prosecute its appeal without
responding to the trial court’s orders. But counsel can dispute the merits of a
ruling without calling it “transparently erroneous,” “egregious,” or a “truly
perverse miscarriage of justice.” Counsel did no better in proclaiming that
10 Whether Athens and WasteXperts are business competitors was the
only portion of the four-element test for the commercial speech exemption
litigated by the parties in the motion below. The trial court addressed no
other portion of the test. Nor have the parties done so in their briefing on
appeal. Therefore, no further analysis is necessary. (See Ables v. A. Ghazale
Bothers, Inc. (2022) 74 Cal.App.5th 823, 827–828.)
17
“the overreach by the trial court here is nothing short of shocking, effectively
blessing Athens’ business threats . . . and immunizing them.” Appellant can
certainly challenge the outcome without such unfounded insinuations that
the trial judge had become an advocate for the other side.
Appellant targets both respondent and its counsel in the same
freewheeling, unprofessional manner. None of these statements were
necessary. None of the vitriol advanced the legal arguments in this case. To
the contrary, this incivility created an unnecessary distraction to both
opposing counsel and this court.
Emotional diatribes do nothing to support the arguments made by
counsel. In fact, this verbiage serves the opposite purpose. It requires the
court to spend additional resources filtering out the hyperbole, and requires
opposing counsel to bill their client for additional time to compose a response.
Ad hominem attacks and other invective detract from counsel’s legal
arguments, signal inappropriate personal embroilment in the dispute, and
indicate an inability to engage in the reasoned analysis the courts need and
counsel’s clients deserve. When counsel resort to name-calling and to
unsupported claims of misconduct, they risk obscuring any meritorious
arguments they may have. Appellant’s counsel would be well advised to
refrain from incivility in the future.
//
//
//
//
//
18
DISPOSITION
The order granting the anti-SLAPP motion is reversed. Appellant
WasteXperts shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
MORI, J.
19