# Maria Elena's Restaurant v. Boyes CA2/6

> California Court of Appeal · April 20, 2023

URL: https://www.frixlaw.com/law-library/cases/9388525

## Case

- **Court:** California Court of Appeal
- **Decided:** April 20, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9388525

## Opinion text

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

2
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

3
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

4
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.

5
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.

6
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

7
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.

8
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9388525. Public record. Not legal advice.