Maria Elena's Restaurant v. Boyes CA2/6

Filed 4/20/23 Maria Elena’s Restaurant v. Boyes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARIA ELENA’S 2d Civ. No. B322667

RESTAURANT, INC., (Super. Ct. No. 19CV347686)

(Santa Clara County)

Plaintiff and Appellant,

v.

PATRICIA BOYES et al.,

Defendants and Respondents.

In an underlying action, an injured party sued a restaurant

for personal injuries, later adding the restaurant’s landlord and

the landlord’s insurance carriers as defendants. The action was

settled between the injured party and the restaurant by payment

of cash to the injured party and an assignment of rights against

the insurance carriers from the injured party to the restaurant.

After the injured party was paid, his counsel requested dismissal

of the action. The dismissal terminated the rights assigned to the

restaurant.

The restaurant brought the instant action against the

injured party and his counsel, alleging causes of action including

breach of contract and fraud. The injured party’s counsel

responded with an anti-SLAPP motion, requesting dismissal and

attorney fees. (Code Civ. Proc., § 425.16.)1 The trial court

granted the motion. We affirm.

FACTS

Underlying Action

Orlando Paramo injured a tooth on an object at Maria

Elena’s Restaurant (the Restaurant). Paramo sued the

Restaurant. The Restaurant was not insured, so Paramo sued

Restaurant’s landlord and the landlord’s insurance carriers. The

insurance carriers took the position that Paramo had no standing

to sue them because he was not a beneficiary of their policies.

Paramo was represented by Patricia Boyes and Boyeslegal,

APC (collectively Boyes). Paramo and the Restaurant entered

into a settlement agreement. The Restaurant agreed to pay

Paramo $21,000 in installments. Paramo assigned his right to

collect $10,000 in medical costs from the landlord’s insurance

carriers to the Restaurant. Paramo and Boyes knew that the

Restaurant would not have accepted the settlement except for

their promises to ensure that the Restaurant received medical

payment.

The Restaurant and the insurance carriers were engaged in

meet and confer efforts regarding the $10,000 medical insurance

payment. When Paramo received the last installment payment

1All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

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from Restaurant, Boyes filed a request for dismissal of Paramo’s

action. The trial court’s dismissal with prejudice terminated the

Restaurant’s right to collect the $10,000 from the insurance

carriers.

The Restaurant sued Boyes and Paramo. The Restaurant

alleged professional negligence and intentional interference with

contract against Boyes. Restaurant further alleged breach of

contract, rescission, fraud, false promise, and negligent

misrepresentation against both Boyes and Paramo.

Anti-SLAPP Motion

Boyes brought an anti-SLAPP motion against Restaurant,

seeking dismissal of the action and attorney fees. Boyes alleged

that her actions in conducting litigation are protected activity

under the anti-SLAPP statute and that she is protected from

liability under the litigation privilege. The trial court granted

the motion and awarded $36,094.50 in attorney fees.

DISCUSSION

Anti-SLAPP Motion

Section 425.16, subdivision (b)(1), the anti-SLAPP statute,

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.”

To resolve an anti-SLAPP motion, the trial court engages in

a two-step inquiry. First, the court decides whether the

defendant has made a threshold showing that the challenged

cause of action arises from a protected activity. (City of Santa

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Monica v. Stewart (2005) 126 Cal.App.4th 43, 71.) The moving

party has the burden of showing that the challenged cause of

action arises from a protected activity. (Ibid.) Second, if the

moving party has carried that burden, the court must decide

whether the opposing party has demonstrated a probability of

prevailing on the challenged cause of action. (Ibid.) “The trial

court’s rulings on both issues are reviewed de novo.” (Ibid.)

I. Protected Activity

The Restaurant contends that Boyes’s actions were not

activities protected by the anti-SLAPP statute.

As the trial court correctly noted, all causes of action in the

Restaurant’s complaint are based on two activities: Boyes’s

negotiation of the settlement agreement and her filing of the

request for dismissal. Both are protected activities.

Section 425.16, subdivision (e) provides that protected

activities include: “(1) any written or oral statement or writing

made before a . . . judicial proceeding . . . (2) any written or oral

statement . . . made in connection with an issue under

consideration or review by a . . . judicial body . . . .”

Statements made during negotiations to settle a lawsuit

constitute a protected activity under the anti-SLAPP statute,

even if such statements are alleged to be fraudulent. (Optional

Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18

Cal.App.5th 95, 113-114.) Similarly, a request for dismissal must

be considered as a protected activity as a writing made before a

judicial proceeding. In fact, it is a petition to the judicial branch

of the government.

The Restaurant cites Park v. Board of Trustees of

California State University (2017) 2 Cal.5th 1057, 1060, for the

proposition that a claim is not subject to an anti-SLAPP motion

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merely because it contests an action that was arrived at following

speech or petitioning activity. Rather, a claim may be struck only

if the speech or petitioning activity is itself the wrong complained

of. Here, the protected activities – negotiating the settlement

agreement and requesting a dismissal – are the wrongs

complained of.

The Restaurant argues that Boyes’s request for dismissal

did not serve to further the ends of her client’s litigation. The

Restaurant cites no authority requiring the protected activity to

serve a litigation objective. Section 425.16 contains no such

requirement.

The Restaurant claims that Boyes’s wrongful conduct was

that she failed to honor the settlement agreement and took

affirmative steps to breach it. The Restaurant argues that such

conduct is neither speech nor petitioning activities. But section

425.16, subdivision (b)(1), provides that causes of action “arising

from” protected activity shall be subject to a special motion to

strike. The Restaurant’s complaint makes it abundantly clear

that the causes of action arose from Boyes’s protected activity in

requesting a dismissal.

The Restaurant argues the only category of protected

activity applicable here is in section 425.16, subdivision (e)(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.” By its terms section 425.16, subdivision (e)(4), requires

the protected activity to be “in connection with a public issue or

an issue of public interest.” The Restaurant argues that this is a

private lawsuit with no connection to a public issue or public

interest.

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But the provisions governing this case are subdivision (e)(1)

and (2) of section 425.16, relating to matters in a judicial

proceeding or before a judicial body. Those clauses of subdivision

(e) contain no language requiring a public issue or interest.

Boyes need not separately demonstrate that her anti-SLAPP

motion concerns an issue of public interest. (Briggs v. Eden

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)

The Restaurant’s reliance on Old Republic Construction

Program Group v. Boccardo Law Firm, Inc. (2014) 230

Cal.App.4th 859 (Old Republic) is misplaced. An insurer settled

the underlying action by depositing money in a law firm’s trust

account on the condition that the money would not be withdrawn

without the insurer’s consent. After the underlying action was

dismissed, the law firm withdrew the money without consent.

The insurer sued the law firm for breach of contract and other

causes of action. The law firm responded with an anti-SLAPP

motion. In affirming the denial of the motion, the Court of

Appeal determined that the alleged wrongful conduct was the

withdrawal of the funds, and that the withdrawal of funds does

not qualify as a protected activity under section 425.16,

subdivision (e). (Old Republic, at p. 870.)

Here, the alleged wrongful conduct was in negotiating the

settlement agreement and requesting dismissal. Both are

protected activities under section 425.16, subdivision (e)(1) and

(2).

II. Probability of Prevailing

The Restaurant contends the trial court erred in relying on

the litigation privilege to conclude it has no probability of

prevailing.

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Civil Code section 47 provides in part: “[a] privileged

publication or broadcast is one made: . . . (b) In any . . . judicial

proceeding.”

The privilege applies to any communication “‘“(1) made in

judicial or quasi-judicial proceeding; (2) by litigants or other

participants authorized by law; (3) to achieve the objects of the

litigation; and (4) that [has] some connection or logical relation to

the action.”’” (Olsen v. Harbison (2010) 191 Cal.App.4th 325,

333.) The privilege is absolute and applies to even malicious

publications. (Ibid.) “The breadth of the litigation privilege

cannot be understated. It immunizes defendants from virtually

any tort liability (including claims for fraud), with the sole

exception of causes of action for malicious prosecution.” (Ibid.)

Fraudulent statements allegedly made by Paramo and

Boyes during settlement discussions clearly qualify as privileged:

1) They were made in a judicial proceeding. The privilege applies

even though the statements are made outside the courtroom and

no function of the court or its officers is involved. (Argentieri v.

Zuckerberg (2017) 8 Cal.App.5th 768, 780-781.) 2) The

statements were made by a party and his counsel, a participant

authorized by law. 3) The statements were made to achieve a

settlement, an object of the litigation. 4) The statements made to

achieve the settlement have some connection or logical relation to

the underlying action.

Similarly, the request for dismissal clearly qualifies as

privileged: 1) It was made in a judicial proceeding. 2) It was

made by Boyes, a participant authorized by law. 3) It was made

to achieve an object of the litigation. Ending litigation is one of

the request for dismissal’s objectives. 4) The request for

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dismissal has some connection or logical relation to the

underlying action – it concludes it.

The Restaurant claims the alleged fraudulent statements

and dismissal constitute courses of conduct, not protected

communications. But the alleged fraudulent statements were

based on communications between Boyes, Paramo, and the

Restaurant. There is no fraud without communication.

Similarly, the request for dismissal asked the trial court to

dismiss the case. It was a communication to the court.

The Restaurant failed to carry its burden of demonstrating

a probability of prevailing.

DISPOSITION

The judgment is affirmed. Costs are awarded to

respondents.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.

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Thang Nguyen Barrett, Judge

Superior Court County of Santa Clara

______________________________

Law Offices of John K. Crowley and John Kevin Crowley,

for Plaintiff and Appellant.

Davis, Bengtson & Young and Bruce D. MacLoed for

Defendants and Respondents.