Petition for Writ of Certiorari — Weiss v. Speer (No. 09-515)

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09-515 OCT 1 0 2009

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2009 CASE

NO.

MICHAEL A. WEISS

Petitioner

Versus

STEVEN SPEER, STEVEN ZWICK, JAMES ALQUIST

Respondents

PETITION FOR WRIT OF CERTIORARI

APPELLATE COURT OF STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

Michael A. Weiss

Counsel for Petitioner

2030 Main St #1300

Irvine, California 92614

949-260-9103

A. The questions presented for certiorari review

are:

1. If the scope of compass of the U.S. Speech or

Petition Clause is not the same as California Civil

Code 47(b)(2) (litigation privilege statute}, is C.C-P.

425.16{e}(2) (California's anti-SLAPP statute) which

has been interpreted to include Civil Code 47(b)(2)

to justify striking out Petitioner's 2 causes of action

and imposing liability on him, unconstitutional on its

face or as applied under the U.S. First Amendment

made applicable on California by the Fourteenth

Amendment.

2. What are the limits of California's power under

the U.S. Constitution First and Fourteenth

Amendments to strike causes of action and

impose liability under C.C.P. 425.16.

3. Does C.C.P. 425.16 on its face as construed or as

applied in the instant case, violate the U.S. First

Amendment made applicable on California via

the Fourteenth Amendment by imposing a prior

restraint on speech because there is no right to

amend a cause of action once an anti-SLAPP

motion is filed to strike it.

4. 1s C.C.P. 425.16(e}(2} over-broad on its face or as

applied due to lack of guidelines to prevent

infringement of U.S. First Amendment rights of a

plaintiff.

5. Are the means and procedures authorized by

C.C.P. 425.16 on its face or as applied, to strike out

causes of action and impose monetary liability, in

violation of the U.S. Fourteenth Due Process Clause

because they do not provide sufficient procedural

safeguards for U.S. Petition Clause activity by

plaintiff's.

6. Did the California Appeals Court unreasonably

misconstrue Petitioner's causes of action,

evidence, and U.S. Constitutional rights and

challenges, when determining that he did not

have, nor support, a viable common law cause of

action for Malicious Prosecution under C.C.P.

425.16(e)(2); and, hence deny Petitioner his U.S.

Petition and Liberty rights, as applied.

7.Was C.C.P. 425.16(e) (2) applied

unconstitutionally under U.S. First Amendment

because judgment was nof supported by

sufficient averment, evidence, nor Findings of Fact,

that Petitioner's causes of action were a retaliatory

sham, objectively and subjectively, speaking in U.S.

First Amendment terms.

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A. Table of Contents

B. Petition for Writ of Certiorari

D. Opinion Below

E. Basis of Jurisdiction

F. Statutes & Constitutional Provisions

G. Statement of the Case

H. Argument Amplifying Reasons For Writ

(1). CLEAR AND PRESENT DANGER BALANCING

REQUIRED UNDER C.C.P. 425.16

(ii). C.C.P. 425.16 STANDARDS ARE

INCONSISTENT WITH THIS COURTS RETALIATORY

PROSECUTION STANDARDS

(iii). C.C.P. 425.16 IS MISSING PROCEDURAL

DUE PROCESS SAFEGUARDS & GUIDELINES

TO PROTECT 1ST AMENDMENT RIGHTS

{iv). NO ADEQUATE AND INDEPENDENT STATE

GROUND OF DECISION

APPENDIX

California Supreme Court Opinion 7-8-09

Appellate Court Opinion 5-28-09

Statutes & Rules Involved

Further Record Cites Where Federal Issues

Were Raised and Passed Upon

Other Essential Matter: 1st Amended

Cross-Complaint

iii

TABLE OF AUTHORITIES

Albright v. Oliver (510 U.S. 266, 292 ............ 20

ALLIED TUBE & CONDUIT CORP. v. INDIAN HEAD,

INC (486 U.S. 492, 500, 507, fn 10, 508, 509 ...... 64

Armstrong v. Manzo (380 U.S. 545, 551-552 ...... 17

ASHCROFT v. IQBAL (129 S.Ct. 1937 ............ 32

Baggett v. Bullitt (377 U.S. 360,378 ............. 49

Bailey v. Alabama, 219 U.S. 219 ............... 16

Baker v. Gawthorne: (82 Cal.App.2d 496, 500-501

en te a ee eee Veena 35

BARQUIS v. MERCHANTS COLLECTION

ASSOCIATION OF OAKLAND, INC. (7 Cal.3d 94 ..75

BE & K Const. Co. v. National Labor Relations Board

EE RN os awk oe ee ee ee ee 76

Bill Johnson's Restaurants, Inc. v. National Labor

Relations Board (461 U.S.731 ...... 9, 13, 30, 69, 71

Birkner v. Lam (2007) 156 Cal.App.4th 275, 285 ..29

BOARD OF AIRPORT COMMISSIONERS OF the CITY

OF LOS ANGELES v. JEWS FOR JESUS, INC. (482 U.S.

MOM 45s ke ada hese acre res eee ei eter ee 45

Briggs v. Eden Council for Hope & Opportunity

SEP eTe FF GD FPS FETS heccerccewerees 15, 16

Brock v. Superior Court of the County of Los

Angeles (11 Cal.2d 682 (1938) ................ 42

Buckley v. Fitzsimmons (509 U.S. 259 ........... 76

CALIFORNIA MOTOR TRANSPORT CO. v. TRUCKING

UNLIMITED (404 U.S. 508, 512-513 .............. 36

CALIFORNIA v. LATIMER (305 U.S. 255 .... 10, 69, 71

Cantwell v. State of Connecticut (310 U.S. 296, 311

Pe eae De ene ne ae Wen eae. ent Paar ed ere 13

CHAMBERS v. State of MISSISSIPPI! (410 U.S. 284 ..30

City of Houston, Tex. v. Hill (482 U.S. 451, 462, fn 11,

en re ae Pr er eee 26

City of Los Angeles v. Lyons (461 U.S.95 ..... 16, 17

Coates v. City of Cincinnati (402 U.S. 611,615 ...13

Cohen v. California (403 U.S. 15, 22 ............ 30

Computerxpress, Inc. v. Jackson (2001) 93

oe PS FE PUTS ci ve ccaseccabeenevcesen 16

County of Santa Clara v. Hayes Co. (43 Cal.2d 615,

eS ea yee) Ch tA eb CE RR eee 46

COX v. STATE OF LOUISIANA (379 U.S. 536, 551-553

SERCO R STRUCK TES CER LAG Ae ORO ee 26

Cross-Complaint. UNITED STATES v. KRAS (409 U.S.

se, tan ch ik a ae re 30

CRUZ, EX REL CRUZ v. ALHAMBRA SCHOOL DISTRICT

BU PiU FUG, PUPS cccccccrvecsrvcevess 15

Doctors’ Co. v. Superior Court (49 Cal.3d 39 (1989)

gp c's Lanter al RDNA TE ar go a =

Douglas v. City of Jeannette (319 U.S. 157 ...... 76

Dunlop v. Bachowski (421 U.S. 560, 574......... 13

Edwards v. Centex Real Estate Corp. (1997) 53

Ee. ea ea ceweeeeeeenseveen 32

Edwards v. South Caroling (372 U.S. 229, 238 .... 43

Evans v. CenterStone Development Co. (2005) 134

Re EUS, gc a cheeks bucks etebavaeeey 30

Fair v. Kohler Die & Specialty Co. (228 U.S. 22, 25

AE ee ee rare Pe ae ae eee 49

Flatley v. Mauro (2006) 39 Cal.4th 299 ......... 76

FORT WAYNE BOOKS, INC. v. INDIANA (489 U.S. 46

ee el eee el be we ee a Se en} 46

Gertz v. Robert Welch, Inc. (418 U.S. 323, 346 ....5

Givhan v. Western Line Consolidated School

SE OU OR OD ok k's econ eN ea evans uanes 15

Lanzetta v. State of New Jersey (306 U.S. 451

ECE A EEDERECAY COCR aed 32

GREAT SOUTHERN FIRE PROOF HOTEL CO. v. JONES

eee Ge I 4 Gr ob 0 b4 44 0 5 4oo dae 54h eee 28

Hartman v. Moore (547 U.S. 250 ............... 17

Hi-Top Steel Corp. v. Lehrer (24 Cal.App.4th 570,

II bs gp cease kara biocides veka 32

Jaffe v. Stone (18 Cal.2d 146 (1941) ........... 70

Jarrow Formulas, Inc. v. LaMarche (2003) 31

EP vb As tees eee eas nc ee een ea 75

Jenkins v. McKeithen (395 U.S. 411,421 ......... 4]

Jones v Steamship Cortes {17 Cal. 487, 497-498

Kolar v. Donahue, Mcintosh & Hammerton (2006)

pga Web. < + |< | a cr 26

LINCOLN FEDERAL LABOR UNION v.

NORTHWESTERN I. & M. CO. (335 U.S. 525, 531 ... 42

Loomis v. Murphy (217 Cal.App.3d 589 (1990) ...15

Marcus v. Search Warrant of Property (367 U.S. 717

See Teer ee ere eee rrr eer ere Se eee ee 33

Martinez v. Metabolife Internat., Inc. (2003) 113

REE UE? hea oh cesses tk auh eee eee eaves 34, 35

Massachusetts State Grange v. Benton (272 U.S.

GRE arg oei ie ha ae Sari ee ena a ee 44

McDonald v. Smith (472 U.S. 479 .. 6... ee ee 3

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241,

ES C50 5666 es bb bok 0d de ee we aes 9,71

Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983)

Peg oy oe AS ag Spee Sern Aa ah ree eo a ere eae 5

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274,

eee ne en er ee 12, 20

Munson v. Linnick (63 Cal.Rptr. 340 ............ 32

National Socialist Party of America v. Skokie, 432

ee 4 A ee ae ae 33

Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 ....4

Neville v. Chudacoff (2008) 160 Cal.App.4th 1255

O'Shea v. Littlefon (414 U.S. 488 ............ 47, 48

COPS WV. PME SOE ie Feces cccccesseues 13

Parker v. Winnipiseogee Lake Cotton & Woolen

Ce ee a sc a ek eee e ke ee kee eae 8 12

Vill

Paterno v. State of California (1999) 74 Cal.App.4th

re Re 13

People v. Pena ( 32 Cal.4th 389 (2004) ......... 43

Professional Real Estate Investors, Inc. v. Columbia

Pictures Industries, Inc. (508 U.S. 49, 60-61 ....... 27

Reno v. American-Arab Anti-Discrimination

COMTN., SZO Uke OF Pe ccc ccc ccc ccc cces 69

Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056

MOUeeTET TS Se 4]

Schneider v. State of New Jersey, Town of Irvington

(60 S.C. TG) Per ccc cc cc ee 42

Sierra Club Foundation v. Graham (72 Cal.App.4th

1 135, TUG tere ec acc cc cc cece 30

Silberg v. Anderson (50 Cal.3d 205, 212 (1990) ..75

Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th

TOG . 6 6c c ce eS SS cece cee cnes 2)

SPEISER v. RANDALL (357 U.S. S13 ........0.. 47, 48

Speiser v. Randall (375 U.S. 513,525 ........... 35

Steel Co. v. Citizens for a Better Environment (523

U.S. 83, 94

STREET v. NEW YORK (89 S.Ct. 1354, 1365 ....... 17

sylmar Air Conditioning v. Pueblo Contracting

Services, Inc. (2004) 122 Cal.App.4th 1049 ...... 30

Taheri Law Group v. Evans (2008) 160 Cal.App.4th

GE 660d sees e506 os NSE VER SSUES R40 CC RET ENR 48

TERRY v. ANDERSON (95 U.S. 628 ........... 42, 43

THOMAS v. COLLINS (323 U.S. 516, 530 ......... 15

Time, Inc. v. Firestone (424 U.S. 448 ............ 13

TYSON & BRO.-UNITED THEATER TICKET OFFICES v.

BANTON (273 U.S. 418 0.0.0.0. c ce cee eee cues 22

United States v. Armstrong, 517 U.S. 456, 464-466 -

United States v. Goodwin (457 U.S. 368 ......... 32

United States v. Reese (92 U.S. 214, 221 ......... 32

Vitek v. Jones (445 U.S. 480 ........ cee eee 28

WAYTE v. UNITED STATES (470 U.S. 598 -......... 27

Weiss v. Soeer (2009 WL 1497507 .............. 29

Wilson v. Parker, Covert & Chidester (2002) 28

8 rr re ee Pata 3, 37

Younan v. Equifax Inc. (111 Cal.App.3d 498, 512

Sc stect week ee Bene eek ee tee ean e eee s wee 70

STATUTES

I gg ls oe ee Bie a rs ore ii

i MES a kd beds a kG as aka ee eee ae e

3 A ere ee eee ee 78, 82

42 United States Code section 1983 ........... 38

Business and Professions Code 17500 .......... 79

Business and Professions Code 6128(qa) ........ 69

ET «ees a oe OE Gay eR RE eb eR 65

ee ee tk eer a war eer ene arare 5, 12, 65

NY So aha ace oor a AO kk A ware RRA 5, 65

ck ot ee ea ee 20

I bs cee es shee eds bbe n eee 12, 20

het A 8! ees -i--3, 5-8, 13, 22-24, 26-29

Rs EE aa bas VARA d a ak bao kee eee 23, 26

a nn. ines hea ae ee oe eee ee 8

od ne iii, vii, 25

rr ES Sin ncaa ak eee 15

C.C.P. 425.16(e)(2) .... -i-, -ii-, i, ili, vii, 2, 8-11, 15, 21,

24, 25

of od A ft, ee a a rrr 27

OR OF 1 Pn | 20

CiCP. 452 oc ccc ccc cc cccccccccevccccceveees 20

ok Se Ee reer rr nna 20

hl ae 20

C.C.P. 589(D)(C) occ ccc ccc cece eee eeueees 20

ee ee es eee 5, 12, 20, 29, 65, 66

ee roe ere ue es 65

Te Drs STON eee ee 2 54

ee ceo gi ccewneds. on rea noes 16, 55

a ok a rr 20, 29

ee ee 56

C.C.P.§1005.5 2... cece ccc cece eceeeeenenes 57

Ng ores eee eee e eect ee 45

eh od OL a ae rien are 45

ee ee i 48

ee Eg Sy yd oes 4 as wwe koe eee 5]

ete ee ee re ee rer 53

ee Ss aa th oo a A ee a ee 53

cet et of) ee eee arena en rae 56

RG ras Gace \ bo eee haa Vee meee 56

California Civil Code 47(b)(2) ................ -i-

Ce I 5 ek os oak ee bee eerie 20

ee, ree ee rn eras 69, 74

IED ang: bcbg eso 4 a Shee ee ee el oa 12

ek. re arene 73,74

Civil Code 47(b)(2) . -i-, vii, 2,3, 9, 11, 12, 14, 15, 17,

Ge Re ETE 6 -6o nnn ci ned baea ee we se ees 1]

ee RE OLE 99-4 eo oe wks oh ee ea 72

te Ce ree 33, 35

Cove Ce SOC SZ 5 gn ken ec ccen 72, 87

Civd Code secnon SZiDii1) .. . 2... ccc es 72, 86

xiii

Civl COG@ SOGHONS SZ.11D) . wc eee ecw 7)

ee a re ees rere re 44

SR Roo o's oS xe a wk 40-4 Sd oe a ee 44,63

So Ba a at, oF

Evidence Code 664 ...........ccc eens vii, 58, 70

6 Re | a re 69

go Ree Bo a a 69

PN EN koa ho 40s ene 0b OAD OE OO 69

St) Es io 9:5 0400-0 oe ee 19

Code of Civil Procedure 4 ................... 5]

Code of Civil Procedure section 425.16 ........ 38

Code of Civil Procedure sections 527.6 ........ 65

xiv

B. Petition for Writ of Certiorari

Petitioner Michael A. Weiss respectfully pray

that a Writ of Certiorani issue to review the

Judgment below. Petitioner demands his U.S.

Constitutional 14'" Amendment right to sue

Respondent Steven Zwick on a single claim for

Malicious Prosecution. Petitioner demands his U.S.

Constitutional 1 Amendment right to immunity

from liability to Zwick, his co-counsel James Alquist,

and Steven Speer. Petitioner demands these rights

and immunities because C.C.P. 425.16(e)(2) (APP.

51} is unconstitutional on its face under the prior

restraint, overbreadth, and clear and present

danger doctrines; because C.C.P. 425.16(e)(2) is

unconstitutional as applied since there were (a)

insufficient procedural guidelines to protect his U.S.

1" and 14th Amendment rights and immunities (b)

insufficient averment, evidence and Findings of

Fact to support the Conclusion that his causes of

action were filed in retaliation against Respondents

U.S. Free Speech Clause rights. Petitioner is an

attorney with 25 years expenence and rated A-V

as a preeminent Labor Law attorney by

Martindale-Hubbel. While Petitioner represented

Speer he billed him at paralegal rates of $125/hour

CRUZ, EX REL CRUZ v. ALHAMBRA SCHOOL DISTRICT

(601 F.Supp.2d 1183, 1195; CD Cal), yet was sued

for shockingly over billing Speer under an Attorney

Malpractice lawsuit. That claim was overruled by 3

demurers; and, Respondents judicially admitted

they voluntarily abandoned any further pursuit. If

this Court does not authorize Petitioner to sue Zwick

for Malicious Prosecution the California State

Courts will not. Petitioner as a U.S. citizen

demands his U.S. 14" Amendment right of access

to state courts to pursue a common law remedy

against Zwick to vindicate the assassination of his

reputation as a retaliatory prosecutor and to

recover economic and non-economic damages

against Zwick for Malicious Prosecution.

D. Opinion Below

California Supreme Count {App.36).

Weiss v. Speer (2009 WL 1497507} (App.36}.

E. Basis of Jurisdiction

28 U.S.C. 1257 confers jurisdiction, as the

California Supreme Court denied discretionary

review on July 8, 2009 of the Court of Appeal

Opinion dated May 28, 2009.

The anti-SLAPP statute provides in part that if

a defendant makes a threshold showing that the

cause of action against him arises from an act in

furtherance of his right of U.S. or California

Constitution Petition or Free Speech in connection

with a public issue and the plaintiff fails to

demonstrate a probability of prevailing on his

cause of action, ihen the court must strike the

cause of action (§ 425.16, subd. (b)(1)) and award

the defendant attorney's fees and costs (§ 425.16,

subd. (c}).

The Court of Appeals decided important

federal questions in a way that conflicts with

relevant Supreme Court decisions by deciding that

Petitioner's 2 causes of action against Zwick could

be stricken from the case under C.C.P. 425.16 and

that no cause of action for Malicious Prosecution

had been averted nor supported; and, imposed

monetary liability on him to all Respondents

because he retaliated against Respondents U.S.

Constitutional 1 Amendment rights on matters of

public concern, over claim of his own U.S.

Constitutional rights and immunities.

The Coun of Appeals decision was a final

determination that (I) Petitioner has no right in

California courts to pursue a cause of action for

Malicious Prosecution against Zwick and (ii) that

Zwick and Speer engaged in valid U.S. Constitution

Free Speech activity over which Petitioner filed his

causes of action. The California Court of Appeals

decision is a final determination that Petitioner is

liable in money to all Respondents under C.C.P.

425.146(c) despite the fact that neither Speer nor

Alquist prevailed. This is Petitioners only opportunity

to seek this courts appellate review of the

imposition of monetary liability and his US. First

Amendment rights and immunities and to free the

people of California from C.C.P. 425.16(e)(2) which

is an unconstitutional statute that not only censors

but imposes liability.

Alternatively there is an important question

of federal law that has not been, but should be

seitled by this court as to the limits of California

power under C.C.P. 425.16(e)(2) to strike out

causes of action and impose monetary liability

under the U.S. First Amendment. Adjudicating the

proper scope of First Amendment protections has

often been recognized by this Court as a federal!

policy that merits application of an exception to

the general finality rule. See, e. g., National

Socialist Party of America v. Skokie, 432 U.S. 43, 44

(1977); Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241, 246-247 (1974). Whichever way we were

to decide on the merits, it would be intolerable to

leave unanswered, under these circumstances, an

important question of freedom of the press under

the First Amendment; an uneasy and unsettled

constitutional posture [of the state statute in

question] could only further harm the operation of

a free press." Tornillo, supra, at 247, n. 6." FORT

WAYNE BOOKS, INC. v. INDIANA (489 U.S. 46).

F. Statutes and Rules involved in this case are set

out in the Appendix (App.50).

G. Statement of the Case.

[RT means Reporters Transcript on anti-SLAPP

Motion (pages 1-17) and Motion to Vacate [anti-

SLAPP] Judgment (pages 12-28).

AA means Appellant's Appendix in the state court.

AA? is 7-30-08 Opposition to anti-SLAPP motion

beginning aft p. 222. AAS is 9-23-08 Motion to

Vacate Judgment beginning with page 20).

The Appendix hereto sets cuteadditional

parts of the record where federal issues were

raised and decided. (App.é67)

1. On 6-1-07 Zwick and his co-counsel James

Alquist filed a complaint for Attorney Malpractice,

Breach of Fiduciary Duty and Breach of Contract

on behalf of Speer, who was Petitioner's prior

client. After 3 Orders sustaining Demurrers to said

Attorney Malpractice claim (AA #'s 15, 16, 17; AA

p. 407, 417, 427), Zwick filed a 3rd Amended

Complaint on behalf of Speer for Breach of

Contract and Breach of Fiduciary Duty (AA 18 &

AA 9? Ex 1). Weiss then filed his Cross Complaint (AA

9 Ex 2) against Respondents on 5-6-08. Zwick and

Alquist, while representing themselves and Speer,

demurred to the cross-complaint on 5-30-08.

Respondents filed their anti-SLAPP motion on 7-1-08

(AA 9), which was based on retaliatory filing of

Petitioner's cross-complaint. [The Cross Complaint

stems from a complaint filed against him by Speer’

(AA 9 p. 129:7-8); "The Cross Complaint is essentially

a retaliation for the complaint filed by Speer

against Weiss" (AA 9 p. 130:5-6); "For the purpose of

this motion only section (e)(2) applies" (AA 9 p.

132:5-9); "Cross Complaint....seeks to retaliate

against Speer and Zwick for filing a complaint to

seek damages against Weiss..." (AA 9 p. 134:7-9);

“Speer and Zwick are absolutely privileged to file

such an action and no lawsuit short of a Malicious

Prosecution may result therefrom" (AA 9 p. 134:

7-12).]

2. Weiss’ Opposition to Respondents anti-SLAPP

motion attached an amended cross-complaint

thereto (AA p. 238:16-18 & AA 9a) [which included

a express cause of action for Malicious Prosecution

at its para 29}. (App.85)

3. The undisputed evidence at the anti-SLAPP

hearing consisted of

(a) The 3 Orders sustaining Demurers to the

Attorney Malpractice lawsuit.

(b) a judicial admission by Zwick at the

anti-SLAPP motion hearing that “we voluntarily

dismissed the Attorney Malpractice lawsuit and

are proceeding only on a Breach of Contract

lawsuit” [RT 9:18-21].

established that the only thing provided to 2

unidentified attorneys from whom Zwick solicited

an opinion that Weiss over billed Speer were his

Invoices. Those Declarations established that the

reason the Attorney Malpractice suit was filed was

based on the opinion of the 2 unidentified

attorneys. (App.67 @ 2(c)).

(d) Speer's statement to Weiss that he had a

malpractice attorney who wanted a piece of him.

(AA p. 236:3-5).

(e) Docket sheet entries showing that Zwick

and Alquist had themselves been sued 7 times for

Attorney Malpractice, and that each represented

the other at various stages (AA p.252 thru 285).

(f) Zwick had never once physically

appeared before the court in this case (AA p.

236:19-21).

(g) Evidence that Speer was excluded from

his workplace due fo threats to the lives and safety

of his supervisors and co-workers; and that Speer

instructed Weiss to dismiss all his litigation which he

did. Speer sought and received

service-connected Long Term Disability benefits

from County of Orange in exchange for dismissai

of his lawsuits against the County (AA p.245, 240-

241; AA 9 p.312).

(h) Weiss lodged 10,000 pieces of paper

from Speer's underlying litigation [AA9b p. 312}. His

Declaration confirmed his ethics inharmonic with

Evidence Code 664 (App.63) presumption that

attorneys do not file causes of action with

retaliatory intent, and declared that he filed his

Cross Complaint because of the sham Attorney

Malpractice lawsuit filled against him. "| am an

ethical attorney. Speer's Declaration said Zwick

told him the labor attorney said | had been over

billed. Such belief was totally insufficient and

generated a sham Attorney Malpractice lawsuit

against me. Zwick declared he gave those

attorneys my billings. He did not give them the

goals and strategies of Speer, nor the litigation,

witness, evidence nor correspondence files." (AA

p. 242:243.)

4. Weiss requested a Statement of Decision

[hereafter SOD]. (App.67 @4)

5. Weiss objected to the proposed SOD against

him to no avail. (App.68 @5)

6. The California Appeals Court upheld the trial

court Conclusion of Law that the immunity

provided by Civil Code 47(b)(2) for pre-litigation

communications was within the scope of C.C.P.

425.16 which in turn was based upon and

interwoven with valid U.S. Constitution Free Soeech

Clause rights (Ct.App.Opinion 2: para 5). Monetary

liability was imposed on Petitioner under C.C.P.

425.16(c). (Ct.App.Opinion last sentence.)

However the scope of the U.S. Free Speech

or Petition Clause is not equal to the scope of Civil

Code 47(b)(2) and hence C.C.P. 425.16(e)(2) was

unconstitutional on its face, and as applied. ["8.

Another erroneous conclusion of law was that

Zwick engaged in constitutionally protected U.S.

Petition Clause activity based on Civil Code

47(b)(2) litigation privilege activity. SOD 2:20-23."

(AA p. 41:1 1-12); "1. The Opposition papers say the

sole and exclusive legal basis for the Judgment is

the litigation privilege Civil Code 47(b)(2)

(Opposition at 4:4-78); and, that C.C.P. 425.16(e) (2)

activity includes Civil Code 47(b)(2) activity.

However that is plain error of law because the U.S.

Constitution contains the Petition Clause that Zwick

relied upon in his anti-SLAPP Motion; yet, the

litigation privilege of Civil Code 47(b)(2) is no part

of that Clause, now is it? Civil Code 47(b)(2) is a

State statute that immunizes fort liability; and it is

beyond cavil that a State legislature has no power

to delimit the scope of the U.S. Petition Clause by

providing a statute immunizing for its violation due

to existence of the U.S. Supremacy Clause. State

legislatures can immunize tort liability; but, C.C.P.

425.16 focuses on valid U.S. Petition clause activity,

not tort activity, now doesn't it? C.C.P. 425.16 is not

a tort immunizing statute; rather it is a screen

device which denies access to courts for sham

Petition Clause filings. It is beyond cavil that the

U.S. Petition clause does not immunize defamation

per McDonald v. Smith (472 U.S. 479). It is beyond

cavil that the U.S. Petition clause does not

immunize sham and baseless litigation per BE & K

Const. Co. v. National Labor Relations Board (536

U.S. 516). It is beyond cavil that U.S. Petition Clause

does not apply to an attorneys pre-advocate

conduct per Buckley v. Fitzsimmons (509 U.S. 259)."

(AA p. 66:1 1-28); RT 21:15-19; ‘The Cross Complaint

sought to impose liability on Zwick for his pre

litigation communications before he acted as

advocate under U.S. Petition Clause and did not

function as advocate until he established

probable cause.” RT 22:20-26; "The Supremacy

Clause would prohibit 425.16 or Civil Code 47(b) (2)

application because the U.S. Petition Clause does

not include within its compass sham and baseless

litigation. The Court: It might be the anti-SLAPP

provision might fall within the category of Zwick.” RT

24:26 thru 25: 8; "Since U.S. Petition Clause fully

occupies ifs field and does not protect sham and

baseless litigation, application of Civil Code

47(b)(2) via C.C.P. 425.16 would severely restrict

victims right to sue and gain access to state courts”

(Appellants Opening Brief 38: para 1). For further

record cites see App.68 @6.

7. The issues of Respondents "valid" exercise of their

U.S. Petition/Speech Clause rights and of

Petitioner's invalid U.S. Petition Clause & Due

Process Clause rights were placed at issue by the

moving papers {AA p. 130:7-14) and opposition

papers. Petitioner argued that Zwick's U.S. Petition

Clause activity was a sham and hence that ["18.

Any and all valid statutes or other obligations can

be applied to a person claiming Petition Clause

immunity, if that defense is a sham. CALIFORNIA

MOTOR TRANSPORT CO. v. TRUCKING UNLIMITED

(404 U.S. 508, 512-513)" (AA p.230:26-28).] For further

record cites see App.69 @7.

8. Petitioner's assertion of his U.S. Constitutional

rights and challenges included the following. [""}.

Weiss's United States Constitutional right to Petition

and seek access to this court cannot be

constitutionally terminated by refusing amendment

[of pleading]." (AA p. 24:1-4); ["47. The power,

strategy and resources of Zwick & Alquist were

used solely to harass and deter Weiss in his U.S.

Petition Clause right of access to courts including

the right to be heard in a meaningful manner ie

without filing and maintaining a sham Attorney

Malpractice suit against him for about 1 year until

they abandoned it after the court found it

unmeritorious due to failure to aver a case within a

case facts. Zwick & Alquist diminished the value of

Weiss's business by filing the sham malpractice

lawsuit. Those injuries were the goal and intent of

Speer, Zwick & Alquist." (AA p. 237:13-24); "46. Such

representations by Zwick & Alquist were false and

made either with malice, intent to avoid the truth

of the matters, with reckless or conscious

indifference to the rights of Weiss to the liberty and

property rights of Weiss under the U.S. Due Process

Clause or his right of access to courts under the

U.S. Petition Clause made applicable upon the

States by the Fourteenth Amendment Due Process

Clause." (AA p. 237:6-12); "22. To enforce

sham/baseless Petition Clause activity of Speer,

Zwick & Alquist in disregard of the constitutional,

statutory, and common law, rights of Weiss would

be arbitrary in itself and result in violation of the

substantive component of the U.S. Due Process

Clause." (AA p. 231:18-23); "29. Further discovery is

necessary for the parties and court to resolve the

Anti-SLAPP Motion. It would be a violation of the

U.S. Due Process Clause to require Weiss to prove

the illegal/invalid exercise of Petition Clause by

Speer, Zwick & Alquist, within such short time as

C.C.P. 425.16 allows." (AA p. 233:22-25); "10. The

anti-SLAPP motion and trial thereon (see 8-19-08 RT

11:12-13) focused solely on the litigation privilege

and the United States Petition Clause. In turn the

opposition to the anti-SLAPP motion focused

likewise on the litigation privilege and United States

Petition Clause.” (AA p. 41:23 thru p.42: 1); "The

Cross-Complaint complained about the Attorney

Malpractice lawsuit; whereas, the Judgment

inconsistently said it concerned the Breach of

Contract lawsuit.” (AA p. 37: 11-15); "Weiss' rights

under the Fourteenth Amendment Due Process

Clause encompasses C.C.P. 1005.5, C.C.P. 592 and

C.C.P. 170." (AA 36:26-28); "I contend Zwick has not

engaged in constitutionally protected activity. It

has got to be addressed.” (RT 11:21-26); "Zwick did

not engage in valid exercise of Petition Clause

activity. If if is not valid, my right of access to court,

my right to Petition this court under the U.S.

Constitution is being infringed upon.” (RT 24:21-25).

‘The issue of valid U.S. First Amendment activity had

to be decided under the anti-SLAPP motion

{Appellants Opening Brief 18: para 1).

9. C.C.P. 425.16(a) in connection with the facts in

our case, presented the issue of valid exercise of

U.S. Constitution rights by Zwick and the invalid

exercise by Petitioner as in the REINER case. "The

Supreme Court of Ohio here held that a witness

who denies all culpability does not have a valid

Fifth Amendment privilege against

self-incrimination. The decision at issue “fairly

appears...to be interwoven with the federal law,"

and no adequate and independent state ground

is clear from the face of the opinion. Michigan v.

Long, 463 U.S. 1032, 1040-1041 (1983)." OHIO v.

REINER (532 U.S. 17).

10. Petitioner contended C.C:P. 425.16 was

unconstitutional under U.S. First Amendment clear

and present danger doctrine because C.C.P.

425.16 prohibited amending a cause of action

once the motion was filed. ["10. Any California

Court SLAPP Order issued in this case would be

unconstitutional, as applied, without a finding that

there is a clear and present danger that valid

Petition Clause activity by Speer, Zwick & Alquist

will be infringed upon by the mere filing of Weiss's

Cross Complaint upon them. This court must make

that determination based upon review of the

entire record. THOMAS v. COLLINS (323 U.S. 516,

530)" (AA 9a p.228: para 10.); ‘The true test under

C.C.P. 425.16, consistent with federal Constitutional

law, should be to determine whether there is clear

and present danger of objectively groundless

litigation brought with corrupt subjective intent per

BE & K Const. Co. v. National Labor Relations Board

(536 U.S. 516); THOMAS v. COLLINS (323 U.S. 516,

536); Jenkins v. McKeithen (395 U.S. 411, 421):

O'Shea v. Littleton (414 U.S. 488); Douglas v. City of

Jeannette (319 U.S. 157); CALIFORNIA v. LATIMER

(305 U.S. 255); Massachusetts State Grange v.

Benton (272 U.S. 525); Parker v. Winnipiseogee Lake

Cotton & Woolen Co. (67 U.S. 545); and City of Los

Angeles v. Lyons (461 U.S. 95). If the pleading can

be amended there is no clear and present

danger’. (App Reply Brief 20: para 2). "THE UNITED

STATES SUPREME COURT HAS ALREADY DEFINED

WHEN SPEECH CAN BE PROHIBITED. PETITION

ACTIVITIES IS JUST ONE FORM OF SPEECH. UNLESS

EACH RAISES TO THE LEVEL OF A CLEAR AND

PRESENT DANGER OF IMMINENT DANGER, NO

COURT IN THIS COUNTRY CAN STOP IT. YOU CAN'T

STOP THE PENTAGON PAPERS FROM BEING

PUBLISHED WHICH EXPOSE CLASSIFIED

INFORMATION, YOU CAN'T STOP ANY SPEECH

UNLESS — THE COURT: ANTI-SLAPP DOESN'T STOP

ANYONE FROM SAYING ANYTHING, SIR. IT MERELY

PROVIDES A PROCEDURE TO QUICKLY DETERMINE

WHETHER A PARTICULAR CAUSE OF ACTION HAS

MERIT. (App. Oral Arg. RT 4).

11. The California Appeals court held that C.C.P.

425.16 provides no right to amend a cause of

action to avoid a anti-SLAPP motion (Opinion 5:

through 6: para 10) as did the trial court (RT

5:25-26) despite Petitioner's challenge that such

would be a prior restraint. [The automatic per se

prohibition against amendment is a form of prior

restraint to Free Soeech and hence violates the

U.S. Free Speech Clause" (Appellani's Opening

Brief p.25); "C.C.P. 425.16 per se prohibits

amendments. Such is an unconstitutional and

insufficient State ground of decision when U.S.

Petition Clause rights are at issue" (Appellants

Opening Brief 21); “secause C.C.P. 425.16 operates

on U.S. Petition Clause rights of appellant it must

pass the strict scrutiny test and it failed because

the means are not narrowly tailored to the goal

due to its per se automatic prohibition against

amending pleadings” (Appellants Opening Brief

23: last sentence.)

12. Petitioner contended C.C.P. 425.16(e)(2) is

over-broad in its definition of U.S. Free Soeech and

Petition activity. ['C.C.P. 425.16 is unconstitutionally

over-broad on its face under U.S. Free Speech

Clause since it regulates Free Speech is a

substantial number of cases. It sets up a net so

large as to catch the innocent along with the

guilty, see TERRY v. ANDERSON (95 U.S. 628)"

(Appellants Opening Brief p. 24); “Because of the

word “any” in C.C.P. 425.16{b)(1) and (e)(1)(2)({3) (4)

this statute is unconstitutional under U.S.

Constitution because it is over-broad under its free

Speech Clause, see BOARD OF AIRPORT

COMMISSIONERS OF the CITY OF LOS ANGELES v.

JEWS FOR JESUS, INC. (482 U.S. 569)" (Appellant's

Reply Brief 15: para 1)]. Petitioner likewise

contended that the C.C.P. 425.16(e)(2) definition

of public interest suffers from the overbreadth due

again to use of the words "includes any." ["A

persons rights under U.S. Petition/Speech Clause is

not to be delimited by the California legislature.

The word "any’ is over-broad see TYSON &

BRO.-UNITED THEATER TICKET OFFICES v. BANTON

(273 U.S. 418)" (Appellants Reply Brief 15: para 1)].

[“"12. The Petition Clause rights of Speer, Zwick &

Alquist cannot be used to infringe upon the right of

Weiss under any valid state/federal law. LINCOLN

FEDERAL LABOR UNION v. NORTHWESTERN I. & M.

CO. (335 U.S. 525, 531)" (AA p. 229:10-12); "Weiss

has a U.S. Due Process liberty and property interest

in pursuing his Cross-Complaint. UNITED STATES v.

KRAS (409 U.S. 434, 838)” (AA p. 230:26-28).}] Gertz v.

Robert Welch, Inc. (418 U.S. 323, 346) noted that

the “public interest" test or standard is one not

within the competence of Judges, as if would

require them to decide on an ad hoc basis which

lawsuits address issues of public interest and which

do not; and, in essence require then to decide in

the words of Mr Justice Marshall “what information

is relevant to self government."

13. Petitioner was censored under C.C.P.

425.16(e)}(2), a statute so generalized as to be, in

the words of the California Appeals Court not

susceptible of exact definition; but, instead

“applicable to conduct that relates to litigation...

Courts have adopted a fairly expansive view of

what constitutes fitigation-related activity within the

scope of C.C.P. 425.16 including ...

communications within the litigation privilege of

Civil Code 47(b)(2)." (Ct.App.Opinion 2: para 5).

C.C.P. 425.16(e)(2) thus blankets with uncertainty

whatever may be plead due fo its use of the words

‘includes any.” A sharp line cannot be drawn surely

or securely. The effort to observe it could not be

Free Speech in any sense of free advocacy of

principle or cause. In BOARD OF AIRPORT

COMMISSIONERS OF the CITY OF LOS ANGELES v.

JEWS FOR JESUS, INC. (482 U.S. 569) the proffered

saving construction of an ordinance was to limit

regulation of speech to “airport related" speech or

conduct. This court said such determinations could

not safely be made due to the fact that no

guiding standards had been simultaneously

proffered. The result would leave First Amendment

activities infringed upon until a multitude of judicial!

adjudications could be made as in Baggett v.

Bullitt (377 U.S. 360, 378). The same now must be

concluded as to C.C.P. 425.16(e}(2) overbreadth.

14. City of Houston, Tex. v. Hill (482 U.S. 451, 462, fn

11, & 468) and Cohen v. California (403 U.S. 15, 22)

held that the word "any" in an ordinance or statute

reguiating speech was per se over-broad; and,

that since the ploin English meaning of the word

“any” is not ambiguous, it would be unnecessary for

any court to interpret if. (Hill, supra p.465).

15. Petitioner contended that his Fourteenth

Amendment Due Process Clause rights were

violated. ["3. The contention of Speer, Zwick &

Alquist in their Anti-SLAPP Motion that Weiss's

Cross-Complaint was filed seeking to impose

liability upon them for their Petition Clause activity

is grounded on nothing but speculation and

conjecture which this court cannot rubber stamp."

(AA p. P. 225:16-19); "4. The burden of Speer, Zwick

& Alquist under the Ist prong of the Anti-SLAPP

statute of C.C.P. 425.16 required them to show and

establish that the nature of the Cross-Complaint

included averments seeking to impose liability

upon them because of the filing of the Speer's

original Ist, 2nd or 3rd Amended Complaints. They

have not met their burden.” (AA p. 225:20-24); "6.

Armstrong v. Manzo (380 U.S. 545, 551-552) held

that Due Process requires an opportunity to be

heard at a meaningful time and in a meaningful

manner. RT 13:19-23. [BJ urden never became

applicable if Zwick did not make the threshold

showing that the cross-complaint sought to impose

liability upon him because of his U.S. Petition

Clause activity. "(AA p. 47: 1-6}; "29. GREAT

SOUTHERN FIRE PROOF HOTEL CO. v. JONES (177

U.S. 449, 453) and Steel Co. v. Citizens for a Better

Environment (523 U.S. 83, 94) both held that

standing must be asked without respect to the

relation of the parties. Standing to complain about

any issue requires (1) actual or threatened injury (2)

causation and (3) redressability. Weiss had

standing to complain about Zwick's conflict of

interest because he contended he probably

would not get a fair trial/settlement since Zwick

represents not only himself but also Speer and

Alquist as wel!; and, because he manifested

actual hostility and malice against Weiss by his

own words and tortuous course of pre-litigation

conduct." (AA p. 49:20 thru p. 50: 6); "30. In our

case the threatened injury involves Weiss's

constitutional and statutory right to a fair trial or fair

settlement pre-trial." (AA p. 50:10-12); "10. [A]jn

adjudicatory act involves the actual application of

a rule of law to a specific set of existing facts. In

our case the SOD fails to explain those specific

facts about C.C.P. 425.16(e)(2). More particularly

what in the world were those words "of

communication” spoken from Zwick to Speer that

were protected by the litigation privilege; and,

when, in terms of date, were they uttered. Without

such a factual explanation it was impossible to

attempt to apply the correct rule of law such as

the U.S. Petition Clause. No doubt the reason the

SOD failed to provide a specific set of applicable

facts and law stems from the fact that Zwick's

anti-SLAPP motion failed to contain them; opting

instead for a ipse dixif conclusory approach that

everything he said, and did, was immunized by the

litigation privilege of Civil Code 47(b)(2). No judicial

officer has rubber stamp power; rather its has an

affirmative duty to exercise non-delegable

discretion.” (AA p. 69: 22 thru p. 70: 10); "18. A

SLAPP Order requires a finding of fact and

conclusion of law that Zwick engaged in valid U.S.

Petition Clause activity and that Weiss did not, and

could not, prove up the opposite either as a

matter of law or as a matter of probability.” (AA p.

72:24: thru p. 73: 5); "6. [B]ecause the Legislature

codified provisions, like C.C.P. 592 and C.C.P.

1005.5, applicable to “all” causes of action for

breach of contract and personal injury, it

necessarily abrogated contrary case law and

precluded the state courts from establishing a

different rule because Civil Code 4 and C.C.P. 4

says the code (not judges) establish the law of this

state. Hence Judge Moberly had no authority to

determine the anti-SLAPP motion before the

Demurrer. Such was prejudicial and caused a

miscarmiage of justice as stated in the moving

papers. 7. [S]tate legislatures may by statute

regulate the mode and manner by which the

Judicial Branch courts shall exercise their given

constitutional jurisdiction. Weiss contends they did

so in C.C.P. 592 and C.C.P. 1005.5." (AA p. 68:8-27);

"11. C.C.P. 590 and C.C.P. 1005.5 and hence also

the U.S. Due Process Clauses, placed a limitation

on Judge Moberly's power, authority and

jurisdiction. By acting ultra vires those prescriptions

she acted in excess of her jurisdiction. The instant

Motion to Vacate Judgment address the exercise

of this courts jurisdiction in terms of statutory and

Constitutional Clause violation. The exercise of

judicial jurisdiction, power, and authortty, is a

constitutional mile apart from the existence of such

jurisdiction, power, and authorty. In sync, the valid

exercise by Zwick of rights under U.S. Petition

Clause is a statutory mile apart from the existence

of such right. Likewise the application of the

litigation privilege is a statutory mile apart from its

existence. Zwick's Opposition papers just repeat

what his anti-SLAPP motion papers said; they

completely fail to address any point or authority

contended for in the moving papers; and hence

the result is an implied concession that no

opposition exists, now isn't it? Weiss demands his

Constitutional right to sue Zwick for malicious

prosecution.” (AA p. 70:14-28). ['Albright v. Oliver

(510 U.S. 266, 292 thru 294; 298 thru 300 & 314 thru

316) is cited for the proposition regarding the

shockingly inadequate procedure under C.C.P.

425.16 - the right to Petition is not adequately

protected" (Appeilant's Opening Brief 32: para 1)].

For further record cites see App.71 @ 14.

16. "The state Courts are required to apply federal

constitutional standards, and they necessarily

create a considerable body of "federal law’ in the

process. It is not surprising that this Court has

become more interested in the application and

development of federal law by state courts in the

light of the recent significant expansion of federally

created standards that we have imposed on the

States.” Michigan v. Long (463 U.S. 1032).

17. C.C.P. 425.16 as interpreted not only re-defined

the scope of U.S. Free Speech by saying it includes

anything within Civil Code 47(b)(2); but,

unconstitutionally put the burden of proof on

Petitioner to prove respondent did not engage in

valid U.S. Constitution Free Soeech Clause activity

by evidence which conclusively established that

Respondent's speech was illegal as a matter or

law or by getting a concession to that effect

(Appeals Opinion 4: para 3.) This is contrary to

Speiser v. Randall (375 U.S. 513, 525) and other

retaliatory prosecution cases from this Court, which

require defendant to cany the burden of proving

he engaged in valid U.S. First Amendment activity

before Plaintiff has to prove anything.

18. The California Appeals court determined that

because the copy of the amended

Cross-Complaint in the appendix did not show a

file stamp on it, such could not be the operative

document (Ct.App.Opinion at 6: para 1); but,

C.R.C. 8.124 (App.65) did not require a file stamp

on it; and, C.R.C. 8.163 (App.65) contained a

presumption that the record on appeal contains

all documents necessary to a determination of the

Appeal. Hence the California Appeals Court had

no adequate and independent reason to support

such determination. The California Appeals Court

opinion said that “an anti-SLAPP motion does not

deal with the adequacy of the pleadings...and

therefore an amended pleading was irrelevant"

(Ct.App.Opinion 5: last para). Petitioner's amended

cross-complaint as to its Malicious Prosecution

cause of action (App. 85) was quite relevant as it is

the only cause of action that Civil Code 47(b)(2)

provides no immunity against per Silberg v.

Anderson (50 Cal.3d 205, 212 (1990).

19. The Appeals Court determination that

“pecause Zwick met his burden to show the

communications fell within the protection of the

statute" (Ct.App.Opinion 4: para 5) is unintelligible

in First Amendment terms.

20. Zwick's anti-SLAPP motion did not factually

plead and prove Petitioner retaliated solely to

deter public discussion on a specific issue of public

concern, nor could it, per Time, Inc. v. Firestone

(424 U.S. 448, 454); but, simply relied on the C.C.P.

425.16(e)(2) definition regarding same; however,

C.C.P. 425.16(e)(2) use of the words "includes any’

are unintelligible in First Amendment terms. Despite

quoting C.C.P. 425.16(e) which provided that “as

used in this section actin furtherance of a persons

right of Freee Speech under the U.S. or California

Constitution in connection with a public issue

includes... (2) any written or oral statement or

writing made in connection with an issue under

consideration or review by a judicial body,” the

California Appeals Court said it applied to

pre-filing oral statements made before any issue

was under consideration by a judicial body

(Ct.App.Opinion 2: para 5). It then cited a case to

support the granting of an anti-SLAPP motion

because in that case there were communications

relating to a “pending action" (Ct.App.Opinion 3:

para 2). Note also Ct.App.Opinion 2: para 3

Introduction, inconsistently referred to a cause of

action arising from "a constitutionally protected

right" and a cause of action arising from “a

protected activity’ the latter of which does not

require any showing that such was a valid exercise

of U.S. Constitution Free Speech or Petition Clause

rights. Note further its reasons for not permitting

amending in anti-SLAPP Motions - “vexatious ...

artificial pleading ... and inevitably another request

for leave to amend." (Ct.App.Opinion 5: para 2).

21. This Petition involves a continuing litigation

abuse by Zwick involving 10 months time during

which 3 Demurrers were sustained to the Attorney

Malpractice Complaint he and Alquist initiated

and maintained. Zwick at the anti-SLAPP hearing

made the judicial admission that the only claim

Respondents would be pursuing would be for

Breach of Contract. Thus, we are not dealing with

one discrete act by Respondent (ie. pre-litigation

communication between Zwick and Speer) and

one discrete (possibly retaliatory) act by Petitioner,

the purpose of which is in question as the California

Court of Appeals unreasonably determined.

22. Despite invoking C.C.P. 634 (Appellant's

Opening Brief 20: para 1) the California Court of

Appeal noted that the trial court Statement of

Decision made 3 Findings of Fact: (1) In February

2007 Speer was referred to Zwick from a local bar

association (2) Zwick filed a 3rd Amended

Complaint on behalf of Speer for Breach of

Contract and Fiduciary Duty against Petitioner and

(3) on 5-9-08 Weiss filed a cross-complaint against

Zwick. The Appeals Court also noted that the

Statement of Decision made | Legal Basis for

Decision: Zwick established that the

communications between him and Speer are

protected by Civil Code 47(b)(2) and by the

anti-SLAPP statute. (Court of Appeals Opinion 2:

para 1.) However these 3 Findings of Fact do not,

and cannot, support the Conclusion of Law on

retaliation. Furthermore such legal conclusion

switched the ground of the anti-SLAPP Motion from

retaliation by Weiss due to the filing of Speer's 3rd

Amended Complaint to retaliation against U.S.

Free Speech Clause activity between Zwick and

Speer. Furthermore under either ground there had

to be a Finding of Fact showing "but for’ retaliatory

intent by Petitioner which caused Respondents

harm; yet, there were no such Finding of Fact.

23. Petitioner argued thal the evidence

concerning the communications between Zwick

and the unidentified labor attorney, as well as, the

initiation and maintenance of a sham Attorney

Malpractice lawsuit, established invalid U.S. Petition

clause activity. ['No protection under U.S. Petition

clause regarding manufacture of evidence; nor,

filing an action for Attorney Malpractice grounded

on such evidence...it is beyond cavil that the U.S.

Free Speech does not protect sham and baseless

lawsuits" (Petitioner's Opening Appeal Brief p 26:

para 2 citing RT 7:1-6); "Zwick aided and abetted

the manufactured opinion since he supplied the

materials for its formation. Zwick could not function

as advocate before he had probable cause"

(Petitioner's Opening Appecd Brief 35: para 2); "No

attorney could seriously believe an Attorney

Malpractice proceeding could be grounded on

invoices alone, since invoices do not prove up a

case within a case” (RT 8:9-26); "Zwick sought to

achieve extraneous objects ie use of the legal

system as a economic weapon through sham,

baseless and unauthorized lawsuits to make

defendant pay legal costs; or, solely for his own

personal animosity to get a piece of Weiss”

(Appellants Opening Brief 39: last 2 sentences);

“The cross-complaint was sufficient to hold Speer

and Alquist liable for aiding and abetting the

manufacture of evidence" (Appellants Opening

Brief 40: para 3)]. Petitioner supported his position

under the reasoning in Buckley v. Fitzsimmons, 509

U.S. 259, 274-276) (no absolute immunity when

prosecutor acts in administrative capacity); but,

the California Appeals Court deemed Fitzsimmons

‘inapt" (Ct.App.Opinion 4: para 4) because it was

decided in the context of a 42 U.S.C. 1983 case.

24. The California Appeals Court unreasonably

interpreted Petitioner's Cross-Complaint, and

evidence, by determining that “although the

cause of action are labeled Interference With

Economic Relations or alternatively Interference

With Contract, and Fraud, they are based on

communications between Speer and Zwick."

(Ct.App.Opinion 3: para 1). "We look to the

gravamen of the cause of action which here

involves communications between a lawyer and a

client." (Ct.App.Opinion 4: para 3). "As discussed

above communications between Zwick and Speer

were made in contemplation of litigation...The

cause of action against Zwick for Interference With

Contract and Fraud, not manufacture of

evidence, as Weiss asserts... nor Malpractice."

(Ct.App.Opinion 4: last para and 5: para }.)

25. Petitioner extensively cited California's

gravamen law, ["A Complaint as a pleading need

not proffer any theory of liability whatsoever.

County of Santa Clara v. Hayes Co. (43 Cal.2d 615,

619)" (Appellants Opening Brief p. 27: para 3);

"Jones v Steamship Cortes (17 Cal. 487, 497-498)

held that (E]very action under our practice may

be termed an action on the case; and, hence any

ground of relief which can be regarded as part of

the case may be included. Today C.C.P. 425.10(a)

requires but a statement of the facts constituting

some cause of action and a demand for a

judgment that the pleader thinks himself entitled

to...Everything else is surplusage.” (Appellants

Opening Brief 28: para 1)].

26. The Court of Appeals misinterpreted California's

gravamen and primary right pleading rules

because even the Cross-Complaint contained

averments of Malicious Prosecution. [j Zwick acted

outside the role of an attorney and then brought

Malpractice suit" (AA 9 Ex 2: para 4); "Zwick's

frivclous and sham malpractice suit caused Weiss

damages" (paras 5 & 6); "Zwick made false

representations that Weiss grossly over billed and

then brought suit for malpractice” (para 7); "Zwick's

false inducements resulted in suit for malpractice

against Weiss" (para 10)]. There was no dispute by

Respondents that the amended cross complaint

contained a viable Malicious Prosecution claim.

27. Petitioner makes a U.S. Fourteenth Amendment

Due Process Clause cumulative impact challenge

as in CHAMBERS v. State of MISSISSIPPI (410 U.S.

284). Petitioner complained that every C.C.P. and

C.R.C. rule was ignored during anti-SLAPP

proceeding, which statutes and rules made up the

content of his Due Process rights per Vitek v. Jones

(445 U.S. 480). C.C.P. 901 provided that an Order

may be reviewed on appeal as prescribed in this

Title and that the Judicial Counsel may prescribe

rules for the practice and procedure on Appeal. |n

our case the Appeals court did not comply with

CRC rules on Appeal even cut off Petitioner during

oral argument (Ct.App. RT 18:6-18) despite being

instructed by California Supreme Court not do that

that in People v. Pena ( 32 Cal.4th 389 (2004). Trial

Court ignored C.C.P. 475, C.C.P. 580, C.C.P. 452,

C.C.P. 431.10 (Appellants Opening Brief 42: para |-

3); trial court ignored Civil Code 1472 (Appellant's

Opening Brief 61); trial court ignored C.C.P.

589(b)(c); and C.C.P. 592, C.C.P. 4, C.C.P. 1858

{Appellants Opening Brief 62: para 1, 2).

Furthermore the California Appeals Court

Statement of Facts (Ct.App.Opinion 1: para 5)

includes facts not found by the trial court; and,

under C.C.P. 909 (App.62) and C.C.P. 592 (App.59)

the Court of Appeals had no authority nor power

to make Findings of Fact on its own.

28. The California Appeals Court unreasonably

interpreted Petitioner's U.S. Constitutional

challenges when it said "Weiss makes several

constitutional challenges...tnat the prohibition

against amendment ‘after a motion is granted’

violated rights to Free Speech petition, due

process, equal protection, and unreasonable

seizure is an excessive penalty, or works a

forfeiture.” (Ct.App.Opinion 6: para 4). This was

Unreasonable interpretation because those

constitutional challenges were raised ‘before the

anti-SLAPP motion was granted’ as above

specified.

H. Argument Amplifying Reasons Why Writ Should

be Granted

29. Lanzetta v. State of New Jersey (306 U.S. 451,

453) and United States v. Reese (92 U.S. 214, 221)

are cited the for proposition that if C.C.P.

425.16(e)(2) is repugnant to the U.S. Constitution

First Amendment on its face, then specification by

respondents of details of the act/omission

intended to be charged as an invalid exercise of

U.S. Constitution Petition Clause activity by

Petitioner, would not serve to validate the statute.

Instead it is the statute and not the anti-SLAPP

motion or evidence proffered, that is

constitutionally defective. If California's C.C.P.

425.16(e)(2) is constitutional, other States will follow.

30. In our case it was Zwick who admitted at the

hearing on the anti-SLAPP Motion that

Respondents would no longer pursue the Attorney

Malpractice claim against Petitioner; and, would

only pursue a Breach of Contract action. That

judicial admission followed the 3 judicial warnings

in the form of 3 Orders sustaining Demurrers to that

sham and baseless Attorney Malpractice claim. As

in the Wayte case, it was Respondents who

selected themselves for a cause of action based

on Malicious Prosecution. "Indeed, those

prosecuted in effect selected themselves for

prosecution by refusing to register after being

reported and warned by the Government." WAYTE

v. UNITED STATES (470 U.S. 598).

31. Petitioner contends as in the NLRB cases cited

below that his nghts under the U.S. Constitution

Petition Clause have been violated by the

California Court of Appeals determination

Petitioner retaliated against respondents U.S. Free

Speech Clause rights and hence must be

censored and that monetary liability exists since

there were genuine issues (1) whether he had a

cause of action for Malicious Prosecution (2)

whether he had probable cause when he

decided fo file it (3) whether he had, at the time of

filing, a "but for’ subjective retaliatory intent, which

in turn was (4) the "but for’ cause of constitutional

harm to Zwick's U.S. Constitution Free Speech

Clause rights. ‘The right to litigate is an important

one, and the Board should consider the evidence

with utmost care before ordering the cessation of

a state-court lawsuit. [l]f there is a genuine issue of

material fact that turns on the proper inferences to

be drawn from undisputed facts, if cannot, in our

view, be concluded that the suit should be

enjoined.” Bill Johnson's Restaurants, Inc. v.

National Labor Relations Board (461 U.S. 731).

“Although Petitioner sought review of the fee issue,

we did not grant certiorari on that specific

question, instead asking the parties to address

whether the Board may impose liability. As we see

it, a threshold question here is whether the Board

may declare that an unsuccessful retaliatory

lawsuit [536 U.S. 530] violates the NLRA even if

reasonably based. If it may, the resulting finding of

illegality is a burden by itself. [T]he finding also

poses the threat of reputational harm that is

different and additional to any burden posed by

other penalties, such as a fee award. [W]e can

resolve this case by looking at the finding of

illegality. " BE & K Const. Co. v. National Labor

Relations Board (536 U.S. 516).

(1.) CLEAR AND PRESENT DANGER BALANCING

REQUIRED UNDER C.C.P. 425.16

32. In our case the California Legislature declared

in C.C.P. 425.16(a) that SLAPP suits are not in the

public interest. The California legislature did not

declare that the disturbing increase in SLAPP suits

presents a clear and present danger to the fair

administration of justice in California courts nor to

defendants as a class of litigants. However it is

beyond cavil that a "disturbing increase" in lawsuits

brought primarily to chill the valid exercise of

constitutional nghts of speech and petition is not a

sufficient impact to authorize censor of US. First

Amendment activity. Coates v. City of Cincinnati

(402 U.S. 611, 615); STREET v. NEW YORK (89 S.Ct.

1354, 1365); Schneider v. State of New Jersey, Town

of Irvington (60 S.Ct. 146, 150-151}; COX v. STATE OF

LOUISIANA (379 U.S. 536, 551-553); Cantwell v. State

of Connecticut (310 U.S. 296, 311; 84 L.Ed. 1213);

and Edwards v. South Carolina (372 U.S. 229, 238).

33. In our case there were other means which

would likely mitigate the purported imminent evil

such as authorizing an amended cause of action if

reasonably viable; or, striking out discrete

paragraphs or sentences from other causes of

action in order to preserve a single viable

Malicious Prosecution cause of action.

(ii.) C.C.P. 425.16 STANDARDS ARE INCONSISTENT

WITH THIS COURTS RETALIATORY PROSECUTION

STANDARDS .

34. C.C.P. 425.16(b)(1) addresses the issues of (1)

“any act in furtherance" by Respondents and (2)

“probability of prevailing" on the cause of action

by petitioner. The 2 prong test under C.C.P.

425.16(e)(2) is far removed from traditional

Retaliatory Prosecution standards developed by

this Court under the First Amendment which

require: (1) proof by defendant that he engaged

in a valid exercise of his U.S. Constitution First

Amendment rights (2) proof by defendant that

plaintiff, a State actor [unlike Petitioner],

responded to such exercise by filing a civil

complaint without probable cause and with

retaliatory motive to deter public comment on a

specific issue of public concern; and (3) proof by

defendant [sufficient for Finding of Fact if

unrebutted by plaintiff or applicable presumption

of state or federal law] that such retaliatory motive

and lack of probable cause was the "but for"

‘cause of injury to defendant's U.S. First Amendment

rights.

35. "[W]le have held that retaliation is subject to

recovery as the but-for cause of official action

offending the Constitution. See Crawford-El, supra,

at 593; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S.

274, 283-284. [T]here is a longstanding presumption

of regularity accorded to prosecutorial decision

making. See Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 489-490;

United States v. Armstrong, 517 U.S. 456, 464-466.”

Hartman v. Moore (547 U.S. 250).

36. Although the Moore case addressed

Retaliatory Prosecution in the context of a tort

action, ASHCROFT v. IQBAL (129 S.Ct. 1937), Dunlop

v. Bachowski (421 U.S. 560, 574) and other cases

from this Court addressed it in much the same

manner in the context of a motion to dismiss. But

C.C.P. 425.16(c) imposes liability in addition to

censorship and hence goes beyond a mere

motion to dismiss. Furthermore C.C.P. 425.16

removed Petitioner's common law and Civil Code

47(b)(2) immunity concerning his decision to file a

Cross-Complaint; and a SLAPP Order subjected

him to further liability under C.C.P. 425.18 (APP.56).

A requirement of lack of probable cause should

be extended to C.C.P. 425.16 motions.

37. 'The [trial] court did not make an express

finding as to whether the same decision would

have been made, but on this record the

[respondents] do not, and seriously cannot, argue

that the same decision would have been made

without regard to the 'demands.’ And while the

Distinct Court found that Petitioner's "criticism" was

the "primary" reason for the Schoo! District's failure

to rehire her, it did not find that she would have

been rehired "but for’ her criticism." Givnan v.

Western Line Consolidated School District (439 U.S.

410).

38. As Givhan notes, "primary’ intent is not "but for’

intent; and, hence C.C.P. 425.16(a) burdens more

speech than necessary. In our case Respondent's

did not, and seriously cannot, argue that Petitioner

would have made the same decision fo file his

cause of action without regard to the pre filing

communications between Zwick and Speer.

Respondents immunity from liability is a matter

different from that of Petitioners intent, let alone, his

sole intent to retaliate on a specific matter of

public concern. Respondents did not, and

seriously cannot, argue that the communications

between Zwick and Speer addressed a specific

matter of public importance in U.S. First

Amendment terms. Zwick is not concerned with

any possible prematurity of a Malicious Prosecution

claim since he judicially admitted that

Respondents are no longer pursuing any Attorney

Malpractice claim and desire a single trial on any

Malicious Prosecution claim by Petitioner per

Loomis v. Murphy (217 Cal.App.3d 589 (1990) and

Munson v. Linnick (63 Cal.Rptr. 340; 255 Cal.App.2d

589 (1967).

(iii). C.C.P. 425.16 IS MISSING PROCEDURAL DUE

PROCESS SAFEGUARDS & GUIDELINES TO PROTECT

1ST AMENDMENT RIGHTS

39. The California Legislature in C.C.P. 425.17(a)

{App.54) itself found and declared that a

disturbing number of abusive C.C.P. 425.16 motions

has undermined the valid exercise of U.S. Petition

and Free Speech Clause rights.

40. C.C.P. 425.16 expressed the California

Legislature’s concern that it is better to prevent the

publication before a clear and present danger

exists; and, to punish ihe offender at the same

time. If prevented the publication by striking it out

of the court record; and, punished the speaker to

deter him by imposing monetary liability upon him.

“In Entick v. Carrington, 19 How.St.Tr. 1029, 1073

Lord Camden expressly dismissed the contention

that such a warrant could be justified on the

grounds that it was better to prevent the

publication before than to punish the offender

afterwards.’ Roth v. United States recognized the

complexity of the test of obscenity fashioned in

that case and the vital necessity in its application

of safeguards to prevent denial of 'the protection

of freedom of speech and press for material which

does not treat sex in a manner appealing to

prurient interest.’ Id., 354 U.S. at page 488. (T)he line

between speech unconditionally guaranteed and

speech which may legitimately be regulated,

suppressed, or punished is finely drawn. * * * The

separation of legitimate from illegitimate speech

calls for * * * sensitive tools * * *.’ It follows that,

under the Fourteenth Amendment, a State is not

free to adopt whatever procedures it pleases for

dealing with obscenity." Marcus v. Search Warrant

of Property (367 U.S. 717).

41. "Where the transcendent value of speech is

involved, due process certainly requires in the

circumstances of this case that the State bear the

burden of persuasion to show that the appellants

engaged in criminal speech. Cf. Kingsley Books,

Inc., v. Brown, supra. The vice of the present

procedure is that, where particular speech falls

close to the line separating the lawful and the

unlawful, the possibility of mistaken fact-finding --

inherent in all litigation — will create the danger

that the legitimate utterance will be penalized. The

man who knows that he must bring forth proof and

persuade another of the lawfulness of his conduct

necessarily must steer far wider of the unlawful

zone than if the State must bear these burdens. It

can only result in a deterrence of speech which

the Constitution makes free. “It is apparent that a

constitutional prohibition cannot be transgressed

indirectly by the creation of a statutory

presumption any more than it can be violated by

direct enactment.” Bailey v. Alabama, 219 U.S. 219,

239. The State clearly has no such compelling

interest at stake as to justify a short-cut procedure

which must inevitably result in suppressing

protected speech. [P]Jrocedures which place the

burdens of proof and persuasion on the taxpayer is

a violation of due process." SPEISER v. RANDALL

(357 U.S. 513).

42. In U.S. First Amendment terms. C.C.P. 425.16

contains an unconstitutional prior restraint, burden

of proof, burden shifting mechanism, quantum of

proof, time table, and determination requirement

as to facts and law.

IV. NO ADEQUATE AND INDEPENDENT STATE

GROUND OF DECISION

43. The appeals opinion stated Petitioner fails to

make reasoned legal! argument or cite any

authority that shows or even suggests C.C.P. 425.16

conflicts with [US Constitutional] provisions. As a

result those claims are forfeited.” (Ct.App.Opinion

6: para 4). However, there is no C.R.C. which calls

for forfeiture due to failure to make reasoned legal

argument; quite to the contrary all rules must be

construed liberally to secure justice per C.R.C. 1.2,

1.5 and 8.7 (App.64); appeals courts must take

judicial notice of the U.S. Constitution and this

courts case law regarding same per Evidence

Code 451 (App.63); and, they have no power to

make up rules per C.R.C. 1.3, 8.7, and 8.20

(App.64}.

CONCLUSION

Petitioner pray that this Court grant a writ of

certiorari to allow full appeal; or, for other relief as

it deems proper such as a Per Curiam declaring

C.C.P. 425.16 unconstitutional on its face or as

applied, authorizing Petitioner to sue Zwick for

Malicious Prosecution and to vacate the imposition

of monetary liability to Respondents.

October 5, 2009

RESPECTFULLY SUBMITTED

Michael A. Weiss, Attorney for Petitioner

|. APPENDIX

(I)(1) The following is the California Court of Appeals

Opinion sought to be reviewed in this Writ Petition.

Count of Appeal, Fourth Appellate District, Division

Three-No. G041139

$173936 Filed Jul-8, 2009 Frederick K. Ohlrich Clerk

Deputy

IN THE SUPREME COURT OF CALIFORNIA

En Banc

Michael A. Weiss, Cross-Complainant and

Appellant,

Vv.

Steven Speer et al., Cross-defendants and

Respondents.

The application for siay and petition for review are

denied.

George

Chief Justice

WEISS v. SPEER, et al. (2009 WL 1497507 (Cal.App. 4

Dist.})

Not Reponed in Cal.Rptr.3d, 2009 WL

1497507 (Cal.App. 4 Dist.)

Nonpublished/Noncitable (Cal. Rules of Court,

Rules 8.1105 and 8.1110, 8.1115)

California Rules of Court, rule 8.1115, restricts

citation of Unpublished opinions in California

courts.

Court of Appeal, Fourth District, Division 3,

California.

No. G041139.

(Super.Ct.No. 07CC06466).

May 28, 2009.

Appeal from an order of the Superior Court

of Orange County, Jamoa A. Moberly, Judge.

Affirmed. Document citing additional authority

stricken.

Michael A. Weiss, in pro. per., for

Cross-compiainant and Appellant.

Steven Zwick for Cross-defendant and

Respondent Steven Speer.

James Alquist for Cross-defendants and

Respondents Steven Zwick and James Alquist.

OPINION: RYLAARSDAM, Acting P.J.

*PAGE 1 Cross-complainant and appellant

Michael A. Weiss appeals from an order granting a

motion to strike two causes of action in his

cross-complaint against cross-defendant and

respondent Steven Zwick under Code of Civil

Procedure section 425.16 (section 425.16;

anti-SLAPP motion; all further statutory references

are to this code unless otherwise stated). He claims

Zwick's statements do not fall within the protections

of the anti-SLAPP statute and that he has shown a

probability of prevailing on his claims. He also

challenges the statute on constitutional grounds.

Additionally Weiss contends the court erred

in hearing the demurrer of cross-defendants and

respondents Steven Speer and James Alquist to his

cross-complaint after it granted the anti-SLAPP

motion, claiming the demurrer should have been

heard first. Finally, he appeals from the denial of his

motion to disqualify Zwick from representing

cross-defendants. Finding no error we affirm.

On May 15, 2009 just prior to oral argument

Weiss filed a document entitled "Notice of

Additional Case Citation.” This is, in fact, a

supplemental brief filed without leave of court. The

document is ordered stricken and shall be placed

in the court's filled as "Received."

FACTS AND PROCEDURAL HISTORY

At the outset we note appellant's appendix

violates the rules of court, which require that the

contents be organized in chronological order.

(Cal. Rules of Court, rules 8.124(d)(1), 8.144(a)(1©.)

There is good reason for this rule. It makes review of

the documents easier in contrast to the confusing

appendix presented here with documents inserted

in no discernible order.

Speer retained Weiss to represent him in a

federal court employment discrimination action.

During the pendency of the case Speer contacted

attorneys Alquist and Zwick and asked them to

review whether Weiss had overcharged him. When

Zwick told him that employment attorneys had

reviewed the billings and believed Weiss had

overcharged him, Speer discharged Weiss. Zwick

filed an action on Speer's behalf against Weiss for

legal malpractice on theories of negligence and

breach of fiduciary duty and for breach of the

retainer agreement. The third amended complaint

contained only causes of action for breach of the

retainer agreement and breach of fiduciary duty

based on alleged overbilling. When Weiss

answered the complaint he also filed a form

cross-complaint, which, although unclear, appears

to be for assault against Speer and Zwick and

intentional interference with contract/economic

relations and fraud against Alquist and Zwick.

The intentional interference count alleged

Zwick interfered with Weiss's attorney-client

relationship with Speer by falsely representing to

Speer that Weiss had "grossly overbilled him,” thus

inducing Speer to stop paying Weiss. He also

alleged Zwick “stole” Speer from him and

prompted Speer to dismiss the employment action

and bring the complaint against Weiss. The fraud

cause of action essentially contained the same

facts, alleging that Zwick's representation about

overbilling was made as a statement of fact

although he had not investigated.

*PAGE 2 Cross-defendoants filed an

anti-SLAPP motion, claiming the last two causes of

action in the cross-complaint arose out of their

right to free speech; the motion also attacked the

exemplary damages claim. The court granted the

motion as to Zwick on the causes of action for

intentional interference and fraud, finding that

Speer was referred to Zwick through a lawyer

referral service and Zwick subsequently filed the

action against Weiss. The communications

between the two were absolutely privileged under

Civil Code section 47, subdivision (b) and thus

protected by section 425.16, subdivision (e) (2). It

also found that, based on the absolute privilege,

Weiss failed to show the probability of prevailing on

the merits of these two causes of action. The Court

denied the motion as to exemplary damages, and

also as to the other two cross-defendants on the

ground they had no standing because the causes

of action were not directed against them.

Cross-defendants also filed demurrers. The

court sustained the demurrers with leave to amend

as to the causes of action against Speer and

Alquist and ruled Zwick's demurrer was moot in

light of the order granting the anti-SLAPP motion.

Heard at the same time was Weiss's motion

to disqualify Zwick from representing Speer, which

the court denied because Weiss failed to show any

fiduciary relationship between himself and Zwick.

DISCUSSION 1. Anti-SLAPP Motion

a. Introduction

Section 425.16, subdivision (b)(1) provides

that a cause of action arising from a

constitutionally protected right of free speech may

be stricken unless the plaintiff establishes the

probability it will prevail on the claim. The court

must engage in a two-step analysis under this

section. First it must determine whether the

defendant has met its burden to show "that the

challenged cause of action is one arising from

protected activity."(Jarrow Formulas, Inc. v.

LaMarche (2003) 31 Cal.4th 728, 733.) If so, the

burden shifts to the plaintiff to snow the likelihood

of prevailing on the claim. (Ibid.)

b. Protected Speech

Under section 425.16, subdivision (e) an" ‘act

in furtherance of a person's right of petition or free

speech under the United States or California

Constitution in connection with a public issue’

includes: (1) any written or oral statement or writing

made before a ... judicial proceeding ...; [or] (2)

any written or oral statement or writing made in

connection with an issue under consideration or

review by a... judicial body...."" 'A cause of action

“arising from" defendant's litigation activity may

appropriately be the subject of a section 425.16

motion to strike.'[Citations.]" (Rusneen v. Cohen

(2006) 37 Cal.4th 1048, 1056.) The protection under

section 425.16"extends to conduct that relates fo ...

litigation...." {Kolar v. Donahue, Mcintosh &

Hammerton (2006) 145 Cal.App.4th 1532, 1537.)

"(Cjourts have adopted 'a fairly expansive view of

what constitutes litigation-related activities within

the scope of section 425.16.’ [Citation.]” (Ibid.)

Under Civil Code section 47, subdivision (b},

statements made in litigation or in anticipation of

litigation are absolutely privileged. "[J]ust as

communications preparatory to or in anticipation

of the bringing of an action or other official

proceeding are within the protection of the

litigation privilege of Civil Code section 47,

subdivision (b) [citation], ... such statements are

equally entitled to the benefits of section 425.16.’

[Citations.]" (Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1115; see also

Salma v. Capon (2008) 161 Cal.App.4th 1275,

1285.)

*PAGE 3 Here, although the causes of action

are labeled interference with economic relations

or, alternatively, interference with contract, and

fraud, they are based on communications

between Speer and Zwick when the former

contacted the latter about Weiss's iegal

representation, and primanily his billing. This was

preparctory to the action Zwick filed against Weiss

on Speer's behalf. Thus the statements fall within

section 425.16, subdivision (e) (2).

Tahen Law Group v. Evans (2008) 160

Cal.App.4th 482 also supports grant of the motion.

There the plaintiff sued the defendant, another

attorney, for intentional interference with

prospective economic advantage and business

relations after the plaintiff's client discharged the

plaintiff and retained the defendant while still

owing the plaintiff substantial fees. The court

affirmed the grant of an anti-SLAPP order because

those statements, communications relating to a

pending action, were protected under section

425.16, subdivision (e){2). (Taheri Law Group v.

Evans, supra, 160 Cal.App.4th at p. 489.)

Relying on Edwards v. Centex Real Estate

Corp. (1997) 53 Cal.App.4th 15, Weiss challenges

applicability of the litigation privilege, claiming the

statements did not satisfy four conditions required

to protect prelitigation statements. Those include

that the proposed litigation be imminent and that

it must be based on good faith after serious

consideration. (Id. at pp. 34-35.)The record reflects

there was evidence supporting both conditions.

The declarations of Speer and Zwick filed in

support of the motion state that Speer was

dissatisfied with Weiss's representation, particularly

because he believed he had been substantially

overbilled for research that Weiss had previously

performed. Speer told Weiss he did not believe

Weiss was qualified to handle his matter and asked

him to substitute out of the case, which Weiss

refused to do. He also refused to dismiss Speer's

action, despite Speer telling him he could no

longer afford to pay.

Weiss then met with Zwick and explained his

belief he was being overbilled. Zwick, who refused

to take over the existing case, offered to have

lawyers knowledgeable in employment law review

the bills. A few days later Zwick told Speer those

lawyers believed Speer had been overbilled,

whereupon Speer asked Zwick to represent him in

a lawsuit to recover fees he had already paid to

Weiss. Zwick agreed to do so and the action was

filed within four months.

This is sufficient evidence to show both

imminence and good faith. In addition, Neville v.

Chudacoff (2008) 160 Cal.App.4th 1255

distinguished Edwards, pointing out that it was not

an anti-SLAPP case and the communications at

issue occurred over five years before an action

was filed. (Id. at pp. 1268-1269.) In Chudacoff,

where the court held the litigation privilege did

apply, suit was filed within four months after the

statements were made, the same time period as

elapsed here.

*PAGE 4 In our case it is a reasonable

inference that at the time Speer asked Zwick to

meet with him and expressed his dissatisfaction

with Weiss, and had his billings checked, litigation

was imminent. This is especially true in light of the

fact that Speer made his decision to sue at his

second meeting with Zwick that occurred only a

couple of days after his initial consultation.

Weiss's assertion the suit could not have

been filed in good faith based solely on invoices

does not withstand scrutiny. Overbilling is a proper

basis for claims Weiss breached the retainer

agreement and his fiduciary duty.

Weiss tries to avoid section 425.16's

application by characterizing Zwick's alleged

activity as the illegal manufacturing of evidence of

a malpractice claim. But generally we look to the

gravamen of the cause of action (Martinez v.

Metabolife Internat., Inc. (2003) 113 Cal.App.4th

181, 188), which here involves communication

between a lawyer and a client. Additionally, just

because conduct is allegedly wrongful does not

remove it from the scope of section 425.16. (Birkner

v. Lam .(2007) 156 Cal.App.4th 275, 285. That

exception "applies only if a ‘defendant concedes,

or the evidence conclusively establishes, that the

assertedly protected speech or petition activity

was illegal as a matter of law

.“ [Citation.]"(Ibid.) Neither of those conditions has

been met here.

Weiss's claim that Zwick is not protected

because he was functioning only as an

investigator, not a lawyer, also fails. Buckley v.

Fitzsimmons (1993) 509 U.S. 259 [113 S.Ct. 2606, 125

L.Ed.2d 209], on which Weiss relies, is inapt. There

the action was brought under 42 United States

Code section 1983 and dealt with whether

prosecutors, investigating before the case was

filed, as opposed to prosecuting the case, were

entitled to absolute or qualified immunity. (Id. at p.

261.) That is not the issue here.

c. Probability of Prevailing

Because Zwick met his burden to show the

communications fell within the protections of the

statute, Weiss is required to show the probability of

prevailing on his claims. To meet this burden he ""

‘must demonstrate that the complaint is both

legally sufficient and supported by a sufficient

prima facie showing of facts to sustain a favorable

judgment if the evidence [he] submitted ... is

credited." ' [Citations.]" (Navellier v. Sletten (2002)

29 Cal.4th 82, 88-89.) This is similar to the standard

used on motions for a directed verdict, nonsuit, or

summary judgment. (ComputerXpress, Inc. v.

Jackson (2001) 93 Cal.App.4th 993, 1010.) In

deciding this question, "the court does not weigh

the credibility or compoarative probative strength of

competing evidence...." (Wilson v. Parker, Covert &

Chidester (2002) 28 Cal.4th 811, 821.) On appeal,

we independently review the trial court's ruling.

(ComputerXpress, Inc. v. Jackson, supra, 93

Cal.App.4th at p. 999.)

Weiss did not meet his burden. As discussed

above, communications between Zwick and

Speer were made in contemplation of litigation.

They are absolutely protected under the litigation

privilege, section 47, subdivision (b) and are not

actionable. (Flatley v. Mauro (2006) 39 Cal.4th 299,

323.)

*PAGE 5 Weiss's lengthy discussion of the

prima facie elements of a malpractice action is

completely irrelevant to the analysis. The causes of

action against Zwick are for interference with

contract and fraud, not manufacture of evidence

as Weiss asserts in his discussion of the first prong

nor malpractice as he seems to assert here.

Likewise Weiss's arguments regarding the merits of

the Speer's action against him have no bearing on

the motion. And because the court denied the

anti-SLAPP motion as to the assault cause of

action, Weiss's discussion of the probability of

prevailing on that claim is not germane and should

not have been included in the brief.

2. Order of Hearing on Demurrer and

Prohibition Against Amendment

Weiss complains the court erred in hearing

the anti-SLAPP motion before it heard the

demurrer. Not so. In Simmons v. Allstate Ins. Co.

(2001) 92 Cal.App.4th 1068 the court held that

section 425.16 provides no right to amend a

complaint to avoid an anti-SLAPP motion, noting

that the purpose of the section is to review and

resolve cases arising out of the exercise of free

speech early in the process. (Simmons v. Allstate

Ins. Co., supra, 92 Cal.App.4th at p. 1073.)

"Allowing a SLAPP plaintiff leave to amend the

complaint once the court finds the prima facie

showing has been met would completely

undermine the statute by providing the pleader a

ready escape from section 425.16's quick dismissal

remedy. Instead of having to show a probability of

success on the merits, the SLAPP plaintiff would be

able to go back to the drawing board with a

second opportunity to disguise the vexatious

nature of the suit through more artful pleading. This

would trigger a second round of pleadings, a fresh

motion to strike, and inevitably another request for

leave to amend. [P] ... This would totally frustrate

the Legislature's objective of providing a quick and

inexpensive method of Unmasking and dismissing

such suits. [Citation.]" (Id. at p. 1073-1074)

Nguyen-Lam v. Cao (2009) 171 Cal.App.4th

858 is inapt. There the court allowed an

amendment to a complaint to cure a limited

deficiency that was the basis for the anti-SLAPP

motion. But the facts contained in the proposed

amendment were before the court in plaintiff's

declaration in opposition to the motion. Thus, the

plaintiff had “demonstrated a probability of

prevailing at trial if she could amend her

complaint (iG. at p. 873) and “there [was] no risk

the purpose of the strike procedure [would] be

thwarted with delay, distraction, or increased

costs. [Citations]" (id. at p. 872). Such is not the

case here. Weiss did not present facts in his

opposition that would take the case out of the

absolute protection of the litigation privilege.

As in Simmons, Weiss's "premise is faulty.”

(Simmons v. Allstate Ins. Co., supra, 92 Cal.App.4th

at p. 1073. An anti-SLAPP motion does not deal

with the adequacy of the pleadings but rather

"pierces the pleadings and requires an evidentiary

showing.” (Ibid., italics omitted.) Therefore, an

amended pleading was irrelevant.

*PAGE 6 For the same reason Weiss’s

argument that he filed a proposed amended

cross-complaint prior to hearing on the anti-SLAPP

motion that should have been the operative

document fails. First, the copy in the appendix

does not show a file stamp and Weiss points to

nothing in the record to show it was filed. More

importantly, an amended complaint cannot be

used to defeat an anti-SLAPP motion. (Sylmar Air

Conditioning v. Pueblo Contracting Services, Inc.

(2004) 122 Cal.App.4th 1049, 1054-1055.)

As to his claim the statute is unconstitutional

because it bars all discovery once the motion is

filed, Weiss is wrong. Although section 425.16,

subdivision (g) does stay discovery upon the filing

of the motion, it also provides that on motion

showing good cause, the court may allow specific

discovery. Further, we are not aware of any

authority for the proposition that discovery is a

constitutional right.

Finally, we reject Weiss's claim section 592

required the demurrer be heard first. That section

deals with the order of issues at trial, not hearings

on motions.

3. Constitutional Challenges

Weiss makes several constitutional

challenges to section 425.16 throughout the brief.

These include claims that the prohibition against

amendment after a motion is granted violates

rights to free speech petition, due process, equal

protection, and unreasonable seizure, is an

excessive penalty clause, or works a forfeiture. But

Weiss fails to make reasoned legal argument or

cite any authority that shows or even suggests

section 425.16 conflicts with these provisions. As a

result, these claims are forfeited. (Evans v.

CenterStone Development Co. (2005) 134

Cal.App.4th 151, 165.) Weiss's other challenges

based on the U.S. Constitution and all other claims

that are unclear or unsupported by authority and

reasoned legal argument are also forfeited.

4. Motion to Disqualify Counsel

Weiss's discussion of his challenge to the

denial of his motion to disqualify Zwick from

representing Speer is deficient. An appellate brief

may not merely rely "on the facts and legal

argument ... tendered to the trial court,” as Weiss

does, but must "support each point by argument"

(Cal. Rules of Court, rule 8 .204(a)(1)(B)). Paterno v.

State of California (1999) 74 Cal.App.4th 68, 109

[appellant cannot rely on incorporation of trial

court papers, but must tender arguments in the

appellate briefs"].) The remaining few seniences of

this argument, that his standing to bring the motion

is based "on the intensity of [his] claim to justice"

and grant of the motion "will reduce his burden" of

relitigating, are equally inadequate.

DISPOSITION

The order is affirmed. The "Notice of

Additional Case Citation” filed by appellant is

ordered stricken and the document shall be

placed in the court's file as "Received."

Respondents are entitled to costs on appeal and

also shall be awarded attorney fees on appeal in

an amount to be determined by the trial court.

WE CONCUR: O'LEARY and IKOLA, JJ.

(\)}(iv) The following are the California Statutes and

Rules of Court involved. They are in alphabetical

and numerical order.

Civil Code §4. Rule of Common Law

The rule of the common law, that statutes in

derogation thereof are to be strictly construed, has

no application to this Code. The code establishes

the law of this state respecting the subjects to

which it relates, and its provisions are to be liberally

construed with a view to effect its objects and to

promote justice. [Enacted 1872]

Civil Code §47. Privileged Publication or Broadcast

A privileged publication or broadcast is one

made:

(b) In any (2) judicial proceeding,

Code of Civil Procedure 4. Common Law Rule of

Construction Not Applicable

The rule of the common law, that statutes in

derogation thereof are to be strictly construed, has

no application to this code. The code establishes

the law of this State respecting the subjects to

which it relates, and its provisions and all

proceedings under it are to be liberally construed,

with a view to effect its objects and to promote

justice.

C.C.P. §170. Judge's Duty When Not Disqualified

A judge has a duty to decide any

proceeding in which he or she is not disqualified.

[Added by 1984 ch. 1555.]

C.C.P. §425.16. Action Arising from Exercise of

Freedom of Speech and Petition

(a) The Legislature finds and declares that

there has been a disturbing increase in lawsuits

brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and

petition for the redress of grievances. The

Legislature finds and declares that it is in the public

interest fo encourage continued participation in

matters of public significance, and that this

participation should not be chilled through abuse

of the judicial process. To this end, this section shall

be construed broadly.

(b)(1) 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 or 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.

(2) 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.

(3) If the court determines that the plaintiff

has established a probability that he or she will

prevail on the claim, neither that determination nor

the fact of that determination shall be admissible

in evidence at any later stage of the case, or in

any subsequent action, and no burden of proof or

degree of proof otherwise applicable shall be

affected by that determination in any later stage

of the case or in any subsequent proceeding.

prevailing defendant on a special motion to strike

shall be entitled to recover his or her attorney's fees

and costs. If the court finds that a special motion to

strike is frivolous or is solely intended to cause

unnecessary delay, the court shall award costs

and reasonable attorney's fees to a plaintiff

prevailing on the motion, pursuant to Section 128.5.

(d) This section shall not apply to any

enforcement action brought in the name of the

people of the State of California by the Attorney

General, district attorney, or city attorney, acting

as a public prosecutor.

(e) As used in this section, “act in furtherance

of a person's right of petition or free speech under

the United States or California Constitution in

connection with a public issue" includes: (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 >f public interest; (4) or

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.

(f) 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.

(g) All discovery proceedings in the action

shall be stayed upon the filing of a notice of

motion made pursuant to this section. The stay of

discovery shall remain in effect until notice of entry

of the order ruling on the motion. The court, on

noticed motion and for good cause shown, may

order that specified discovery be conducted

notwithstanding this subdivision.

(h) For purposes of this section, "complaint"

includes "cross-complaint’ and "petition," "plaintiff"

includes "cross-complainant’ and "petitioner," and

"defendant" includes "cross-defendant" and

“respondent.”

(i) An order granting or denying a special

motion to strike shall be appealable under Section

904.1.

(j)}(1) Any party who files a special motion to

strike pursuant to this section, and any party who

files an opposition to a special motion to strike,

shall, promptly upon so filing, transmit to the

Judicial Council, by e-mail or facsimile, a copy of

the endorsed, filed caption page of the motion or

opposition, a copy of any related notice of appeal

or petition for a wrt, and a conformed copy of any

order issued pursuant fo this section, including any

order granting or denying a special motion to

strike, discovery, or fees.

(2) The Judicial Council shall maintain a

public record of information transmitted pursuant

to this subdivision for at least three years, and may

store the information on microfilm or other

appropriate electronic media. [Added by 1992 ch.

726; amended 1993 ch. 1239, 1999 ch. 960; 2005

ch. 535, eff. Oct. 5, 2005.]

C.C.P. §425.17. Applicability of the California

Anti-SLAPP Law

(a) The Legislature finds and declares that

there has been a disturbing abuse of Section

425.16, the California Anti-SLAPP Law, which has

undermined the exercise of the constitutional rights

of freedom of speech and petition for the redress

of grievances, contrary to the purpose and intent

of Section 425.16. The Legislature finds and

declares that it is in the public interest to

encourage continued participation in matters of

public significance, and that this participation

should not be chilled through abuse of the judicial!

process or Section 425.16.

(b) Section 425.16 does not apply to any

action brought solely in the public interest or on

behalf of the general public if all of the following

conditions exist:

(1) The plaintiff does not seek any relief

greater than or different from the relief sought for

the general public or a class of which the plaintiff is

a member. A claim for attorney's fees, Costs, or

penalties does not constitute greater or different

relief for purposes of this subdivision.

(2) The action, if successful, would enforce

an important right affecting the public interest,

and would confer a significant benefit, whether

pecuniary or nonpecuniary, on the general public

or a large class of persons.

(3) Private enforcement is necessary and

places a disproportionate financial burden on the

plaintiff in relation to the plaintiff's stake in the

matter.

cause of action brought against a person primarily

engaged in the business of selling or teasing goods

or services, including, but not limited to, insurance,

securities, or financial instruments, 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 about that person's or a

business competitors business operations, goods,

or services, that is made for the purpose of

“obtaining approval for, promoting, or securing

sales or leases of, or commercial tiansactions 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, except where the

statement or conduct was made by a telephone

corporation in the Course of a proceeding before

the California Public Utilities Commission and is the

subject of a lawsuit brought by a competitor,

notwithstanding that the conduct or statement

concerns an important public issue.

(d) Subdivisions (b) and (c) do not apply to

any of the following:

(1) Any person enumerated in subdivision (b)

of Section 2 of Article | of the California

Constitution or Section 1070 of the Evidence Code,

or any person engaged in the dissemination of

ideas or expression in any book or academic

journal, while engaged in the gathering, receiving,

or processing of information for communication to

the public.

(2) Any action against any person or entity

based upon the creation, dissemination, exhibition,

advertisement, or other similar promotion of any

dramatic, literary, musical, political, or artistic work,

including, but not limited to, a motion picture or

television program, or an article published in a

newspaper or magazine of general circulation.

(3) Any nonprofit organization that receives

more than 50 percent of its annual revenues from

federal, state, or local government grants, awards,

programs, or reimbursements for services rendered.

(e) If any trial court denies a special motion

to strike on the grounds that the action or cause of

action is exempt pursuant to this section, the

appeal provisions in subdivision (j) of Section 425.16

and paragraph (13) of subdivision (a) of Section

904.1 do not apply to that action or cause of

action. [Added 2003 ch. 338.]

C.C.P. §425.18. Special Motion to Strike a

SLAPPback

(a) The Legislature finds and declares that a

SLAPPback is distinguishable in character and

Origin from the ordinary malicious prosecution

action. The Legislature further finds and declares

that a SLAPPback cause of action should be

treated differently, as provided in this section, from

an ordinary malicious prosecution action because

a SLAPPback is consistent with the Legislature's

intent to protect the valid exercise of the

constitutional rights of free speech and petition by

its deterrent effect on SLAPP (strategic lawsuit

against public participation) litigation and by its

restoration of public confidence in participatory

democracy.

(b) For purposes of this section, the following

terms have the following meanings:

(1) "SLAPPback" means any cause of action

for malicious prosecution or abuse of process

arising from the filing or maintenance of a prior

cause of action that has been dismissed pursuant

to a special motion to sinke under Section 425.16.

(2) "Special motion to strike" means a motion

made pursuant to Section 425.16.

and {i) of Section 425.16, and paragraph (13) of

subdivision (a) of Section 904.1, shall not apply to a

special motion to strike a SLAPPback.

(d}(1) A special motion to strike a SLAPPback

shall be filed within any one of the following

periods of time, as follows:

(A) Within 120 days of the service of the

complaint.

(B) At the court's discretion, within six months

of the service of the complaint.

in extraordinary cases due to no fault of the

defendant and upon written findings of the court

stating the extraordinary case and circumstance.

(2) 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.

(e) A party opposing a special motion to

strike a SLAPPback may file an ex parte

application for a continuance to obtain necessary

discovery. If it appears that facts essential to justify

opposition to that motion may exist, but cannot

then be presented, the court shall grant a

reasonable continuance to permit the party to

obtain affidavits or conduct discovery or may

make any other order as may be just.

(f) If the court finds that a special motion to

strike a SLAPPback is frivolous or solely intended to

cause unnecessary delay, the court shall award

costs and reasonable attorney's fees to a plaintiff

orevailing on the motion, pursuant to Section 128.5.

(g) Upon entry of an order denying a special

motion to strike a SLAPPback claim, or granting the

special motion to strike as to some but less than all

causes of action alleged in a complaint

containing a SLAPPback claim, an aggrieved

party may, within 20 days after service of a written

notice of the entry of the order, petition an

appropnate reviewing court for a peremptory writ.

(h) A special motion to strike may not be

filed against a SLAPPback by a party whose filing

or maintenance of the prior cause of action from

which the SLAPPback arises was illegal as a matter

of law.

(i) This section does not apply to a

SLAPPback filed by a public entity. [Added 2005

ch. 535, eff. Oct. 5, 2005.]

C.C.P. §592. Trial of issue of Fact

In actions for the recovery of specific, real, or

personal property, with or without damages, or for

money claimed as due upon contract, or as

damages for breach of contract, or for injuries, an

issue of fact must be tried by a jury, unless a jury

trial is waived, or a reference is ordered, as

provided in this code. Where in these cases there

are issues both of law and fact, the issue of law

must be first disposed of. In other cases, issues of

fact must be tried by the cour, subject to its power

to order any such issue to be tried by a jury, or to

be referred to a referee, as provided in this code.

[Added 1872; amended 1873 ch. 383.]

C.C.P. §598. Precedence of Issues

The court may, when the convenience of

witnesses, the ends of justice, or the economy and

efficiency of handling the litigation would be

promoted thereby, on motion of a party, after

notice and hearing, make an order, no later than

the close of pretrial conference in cases in which

such pretrial conference is to be held, or, in other

cases, no later than 30 days before the tral date,

that the trial of any issue or any part thereof shall

precede the trial of any other issue or any part

thereof in the case, except for special defenses

which may be tried first pursuant to Sections 597

and 597.5. The coun, on its own motion, may make

such an order at any time. Where trial of the issue

Of liability as to all causes of action precedes the

trial of other issues or parts thereof, and the

decision of the court, or the verdict of the jury

upon such issue so tried is in favor of any party on

whom liability is sought to be imposed, judgment in

favor of such party shall thereupon be entered

and no trial of other issues in the action as against

such party shall be had unless such iudgment shall

be reversed upon appeal or otherwise set aside or

vacated.

If the decision of the court, or the verdict of

the jury upon the issue of liability so tried shall be

against any party on whom liability is sought to be

imposed, or if the decision of the court or the

verdict of the jury upon any other issue or part

thereof so tried does not result in a judgment being

entered pursuant to this chapter, then the trial of

the other issues or parts thereof shall thereafter be

had at such time, and if a jury trial, before the

same or another jury, as ordered by the court

either Upon its own motion or upon the motion of

any party, and judgment shall be entered in the

same manner and with the same effect as if all the

issues in the case had been tned at one time.

C.C.P. 632. Statement of decision

In superior courts, upon the trial of a question

of fact by the court, written findings of fact and

conclusions of law shall not be required. The court

shall issue a statement of decision expiaining the

factual and legal basis for its decision as to each

of the principal controverted issues at tral upon

the request of any party appearing at the trial. The

request must be made within 10 days after the

court announces a tentative decision unless the

trial is concluded within one calendar day or in less

than eight hours over more than one day in which

event the request must be made prior to the

submission of the matter for decision. The request

for a statement of decision shall specify those

controverted issues as to which the party is

requesting a statement of decision. After a party

has requested the statement, any party may make

proposals as to the content of the statement of

decision.

The statement of decision shall be in writing,

unless the parties appearing at trial agree

otherwise; however, when the trial is concluded

within one calendar day or in less than 8 hours

over more than one day, the statement of decision

may be made orally on the record in the presence

of the parties.

C.C.P. 634. Omission or ambiguity brought to

attention of trial court; inference

When a statement of decision does not

resolve a controverted issue, or if the statement is

ambiguous and the record shows that the omission

or ambiguity was brought to the attention of the

trial court either prior to entry of judgment or in

conjunction with a motion under Section 657 or

663, it shall not be inferred on appeal or upon a

motion under Section 657 or 663 that the trial court

decided in favor of the prevailing party as to those

facts or on that issue.

C.C.P. §901. General Provisions

A judgment or order in a civil action or

proceeding may be reviewed as prescribed in this

title. The Judicial Council shall prescribe rules for

the practice and procedure on appeal not

inconsistent with the provisions of this title.

C.C.P. §909. Factual Determination by Reviewing

Court in Cases Tried Without Jury

In all cases where trial by jury is not a matter

of right or where trial by jury has been waived, the

reviewing court may make factual determinations

contrary to or in addition to those made by the trial

court. The factual determinations may be based

on the evidence adduced before the trial court

either with or without the taking of evidence by the

reviewing court. The reviewing court may for the

purpose of making the factual determinations or

for any other purpose in the interests of justice, take

additional evidence of or concerning facts

occuring at any time prior to the decision of the

appeal, and may give or direct the entry of any

judgment or order and may make any further or

other order as the case may require. This section

shall be liberally construed to the end an.ong

others that, where feasible, causes may be finally

disposed of by a single appeal and without further

proceedings in the trial court except where in the

interests of justice a new trial is required on some or

all of the issues.

C.C.P. §1003. Motion and Order Defined

Every direction of a court or judge, made or

entered in writing, and not included in a judgment,

is denominated an order. An application for an

order is a motion.

C.C.P. §1005.5. Motion Deemed Made and

Pending Before Court on Service and Filing of

Notice

A motion upon all the grounds stated in the

written notice thereof is deemed to have been

made and to be pending before the court for all

purposes, upon the due service and filing of the

notice of motion, but this shall not deprive a party

of a hearing of the motion to which he is otherwise

entitled. Procedure upon a motion for new trial

shall be as otherwise provided.

Evidence Code 451. Matters which must be

judicially noticed

Judicial notice shall be taken of the

following: (a) The decisional, constitutional, and

public statutory law of this state and of the United

States.

COMMENT—ASSEMBLY COMMITTEE ON JUDICIARY

Judicial notice of the matters specified in

Section 451 is mandatory, whether or not the court

is requested to notice them. Section 451 includes

matters both of. law and of fact. The matters

specified in subdivision (a) are matters that,

broadly speaking, can be considered as a part of

the "law" applicable to the particular case. The

court can reasonably be expected to discover

and apply this law even if the parties fail to provide

the court with references.

Evidence Code 664. Official duty regularly

performed

It is presumed that official duty has been

regularly performed. This presumption does not

apply on an issue as to the lawfulness of an arrest if

it is found or otherwise established that the arrest

was made without a warrant.

(Stats.1965, c. 299, s 2, operative Jan. 1, 1967.)

CALIFORNIA RULES OF COURT

C.R.C. 1.2. Title: "The rules in this title of the

California Rules of Court may be referred to as the

Rules Applicable to All Courts."

C.R.C. 1.3. Authority: ‘The rules in the California

Rules of Court are adopted by the Judicial Council

of California under the authority of article VI,

section 6, of the Constitution of the

State of California, unless otherwise inaicated.”

C.R.C. 1.5. Construction of rules and standards: (a)

Construction. The California Rules of Court must be

liberally construed to ensure the just and speedy

determination of the proceedings that they

govern.”

C.R.C. 8.7. Construction: "The rules of construction

stated in rule 1.5 apply to these [Appeal] rules. In

addition, in these rules the headings of ... rules are

substantive."

C.R.C. 8.20. California Rules of Court prevail."

CRC 8.120. Clerk's transcript

(6b) Contents of transcript

(1) The transcript must contain:

(A) The notice of appeal:

(B) Any judgment appealed frce.n and any notice of

its entry;

entry;

(D) Any notice of intention to move for a new trial,

or motion to vacate the judgment, for judgment

notwithstanding the verdict, or for reconsideration

of an appealed order, and any order on such

motion and any notice of its entry;

(2) Each document listed in (1)(A), (B), (C), and (D)

must show the date necessary to determine the

timeliness of the appeal.

CRC 8.124. Appendixes instead of clerk's transcript

(6b) Contents of appendix

(1) Ajoint appendix or an appellant's appendix

must contain:

{A) All items required by rule 8.120(b)(1), showing

the dates required by rule 8.1 20(b)(2);

(4) An appendix must not incorporate any

document by reference except the record on

appeal in another case pending in the reviewing

court or the record in a prior appeal in the same

case.

CRC 8.163. Presumption from the record

The reviewing court will presume that the record in

an apped includes all matters material to deciding

the issues raised.

CRC 8.204. Contents and form of briefs

(a) Contents

(1) Each brief must:

(A) Begin with a table of contents and a table of

authorities separately listing cases, constitutions,

statutes, court rules, and other authorities cited;

(B) State each point under a separate heading or

subheading summarizing the point, and support

each point by argument and, if possible, by citation

of authority; and

by a citation to the volume and page number of

the record where the matter appears. If any part of

the record is submitted in an electronic format,

citations to that part must identify, with the same

specificity required for the printed record, the place

in the record where the matter appears.

(2) An appellant's opening brief must:

(A) State the nature of the action, the relief sought

in the trial court, and the judgment or order

appealed from;

(B) State that the judgment appealed from is final,

or explain why the order appealed from is

appealable; and

limited to matters in the record.

(1})(v) FURTHER RECORD CITES WHERE FEDERAL ISSUES

RAISED & PASSED ON

2(c). Declaration of Alquist said: “Zwick had

attorneys in our building who are familiar with

employment discrimination cases review Speer's

billings to see if Speer was over billed. Each

described the over billing as shocking. Based on this

Zwick agreed to represent Speer in a case to

recover billings.” (AA p. 207:22 thru 208:6).

Declaration of Zwick said: "| informed Speer those

attorneys opined the fees charged for the services

performed was shocking. Speer asked me if | would

take on a case against Weiss to recover money for

the over billing. | told Speer | would." (AA p.

212:20-27}. Declaration of Speer said: "Zwick told

me that he employment law attorneys reviewed

my billings and it was their belief | had been over

billed significantly. | asked Zwick if he would file a

lawsuit so that | could get my money back. Zwick

agreed to do that. | then hired Zwick to recover

fees | paid Weiss." (AA p. 218:22-219:1).

4. (AA p. 104) which at paras 9 & 10 requested

factual and legal explanation of why Weiss had not

proven as a matter or law, or by a reasonable

probability, that Zwick’'s solicitation of opinion of

over billing by Weiss, when he functioned as

investigator and provided nothing but Weiss’

invoices, was not valid U.S. Petition Clause activity.

Paras. 1] & 12 requested factual and legal

explanation of why Weiss had not proven as a

matter of law, or by a reasonable probability, that

when Zwick functioned as advocate and filed a

baseless sham lawsuit, such was not valid U.S.

Petition Clause activity.

Para. 18 requested factual and legal explanation

why hearing the anti-SLAPP motion before the

Demurrer was not a Due Process Clause violation

under Armstrong v Manzo.

Para. 20 requested factual and legal explanation

why Weiss lacked standing under U.S. Due Process

Clause to bring disqualification motion.

5. (AA p. 118 as follows: The SOD failed to address

requests 9, 10, 11, 12, 18 and 20 {AA p. 119:2-9). SOD

is ambiguous as to request 18 (AA p. 119:10). SOD is

ambiguous as to 5, 6, and 7, as to why Cross

Complaint was determined to seek liability based

only on the Speer’'s 3rd Amended Complaint and

not on his prior Attorney Malpractice claims. See

also RT 21:2 "My SOD requested facts demonstrating

my Cross Complaint arose because of Speer's 3rd

Amended Breach of Contract lawsuit." See also RT

18:19-23.

6. ['16. The U.S. Petition Clause does not immunize

unethical conduct such as perjury, fraud nor sham

lawsuits. CALIFORNIA MOTOR TRANSPORT CO. v.

TRUCKING UNLIMITED (404 U.S. 508, 512-513)." (AA p.

230:20-21); "11. Sham litigation is not protected by

the Petition Clause of the U.S. Constitution. No

reasonable litigant in Speer's posture could

conclude that a cause of action against Weiss for

Attorney Malpractice would be successful due to

failure to aver the required case within a case facts.

BE & K Const. Co. v. National Labor Relations Board

(536 U.S. 516, 526); Professional Real Estate Investors,

Inc. v. Columbia Pictures Industries, Inc. {508 U.S. 49,

60-61); Hi-Top Steel Corp. v. Lehrer (24 Cal.App.4th

570, 578-579 (1994). Speer never even authorized

Zwick to file an Attorney Malpractice suit but rather

one to recover back the attorney fees he paid to

Weiss.” (AA p. 228:19 thru P. 229:9): "5. C.C.P. 410.10

clearly mandates that a state court may not

exercise jurisdiction on any basis inconsistent with

the Constitution of the United States. Hence the Civil

Code 47/(b) litigation privilege cannot be used to

expand ifs coverage fo include neither speech nor

conduct at a time when Zwick acted as

investigator ana before he first functioned as

advocate. Nor can it be used to expand its

coverage to include the sham and baseless

Attomey Malpractice lawsuit filed after Zwick

functioned as advocate.” (AA p. 68:1 1-16).

"The SOD contains errors and incorrect legal basis

for its decision by including everything within the

compass of Civil Code 47(b) within 425.16." RT

19:1-6; "The courts decision says under 425.16 all

activity protected by litigation privilege is

necessarily protected by the anti-SLAPP statute. The

word all’ is emoneous and incorrect."

7."14, Fraud is not protected under the U.S. Petition

Clause. The deceptive practices of Zwick & Alquist

included false reliance on two attorneys who

"pelieved" the fees charged by Weiss were

shocking. Their beliefs were not genuinely used by

Zwick and Alquist to ground litigation; but, were a

sham device knowingly used to abuse the judicial

process, and to injure Weiss. ALLIED TUBE &

CONDUIT CORP. v. INDIAN HEAD, INC (486 U.S. 492,

500, 507, fn 10, 508, 509)." (AA p. 229:22 thru p.

230:15); "15. The U.S. Petition Clause does not

immunize Speer, nor Zwick & Alquist, from statutory

regulation and liability because they improperly

used that Clause as a means of disrupting the

existing contractual relationship between Speer

and Weiss. CALIFORNIA MOTOR TRANSPORT CO. v.

TRUCKING UNLIMITED (404 U.S. 508, 514)" (AA p.

230:16-19); "The Free Speech Clause does not

protect defamation, fraud, fighting words,

obscenity, nor baseless/sham litigation. McDonald

v. Smith (472 U.S. 479, 482, 484-485)." (AA p. 226:3-7):

‘The U.S. Petition Clause does not protect sham and

baseless litigation, BE & K Const. Co. v. National

Labor Relations Board (536 U.S. 516). See RT 7:1-19.

The U.S. Petition Clause does not protect an

attorney when he functions as investigator prior to

functioning as advocate, Buckley v. Fitzsimmons

(509 U.S. 259). See RT 8:2-23." (AA p. 36:23 thru p.

375); "Weiss presented evidence that the Attorney

Malpractice lawsuit was sham, and baseless,

objectively and subjectively speaking, and that

Zwick did not function as advocate but rather

investigator, when seeking out fabricated evidence

of gross overbilling in order to support a

malpractice suit. Such conduct is not “valid” U.S.

Petition Clause activity even had Speer requested

Zwick and Alquist to file a malpractice suit per BE &

K Const. Co. v. National Labor Relations Board (536

U.S. 516) and Buckley v. Fitzsimmons (509 U.S. 259)."

(AA p. 48:10-16); "17. Weiss either established as a

matter of law, or as a matter of probability, that

Zwick neither communicated, nor acted, in aq way

to claim valid exercise of his U.S. Petition Clause

rights.” (AA p. 72:24-26).

14. ["10. The court ruled on the Demurrer before the

Anti-SLAPP motion. It was a federal Due Process

Clause violation as well since cross-complainant

was saddled with a burden or proof not warranted

under the Demurrer.” (AA p.23:14-23); "In our case

only by vacating the anti-SLAPP Judgment and

Order on Demurer to Cross-Compiaint and by

entering a new and different Order/Judgment

authorizing leave fo amend the Cross-Complaint as

to Zwick can Weiss's constitutional right to due

process as defined by C.C.P. 592, C.C.P. 1005.5,

and C.C.P. 170 be vindicated." (AA p. 40:12-22); 21);

“Under C.C.P. 598 Honorable Judge Moberly could

not, and did not, make an “order’ giving

precedence to issues in the anti-SLAPP motion over

issues in the Demurrer; and, this is because no

motion to do the same was made by Speer, Zwick

and Alquist nor the court. For the court to make a

motion sua sponte it had to be in writing, because

CRC 3.1103(a) required motions to be made

“before” trial not at the trial itself; because CRC

3.1110, CRC 3.1112 and CRC 3.113 all required

motions to be in writing and not be made orally;

and, because C.C.P. 1003 defines Order as one

made "in writing". (AA p. 38:15-22); "3. [U]nder C.C.P.

1005.5 a motion is deemed to be made and

pending for all purposes upon the filing and service

of the Notice of Motion. In our case the demurrer to

the Cross-Complaint, a motion per CRC 3.1103, was

made and pending "for all purposes" as of 5-30-08

per its proof of service and the courts docket

registry. The anti-SLAPP motion on the other hand

was not made and pending for all purposes until

7-1-08 once again per its proof of service and this

courts docket registry. Had the current rule of C.C.P.

1005.5 and C.C.P. 592 been correctly applied the

anti-SLAPP Judgment would not have issued. This is

because a ruling on the demurrer would have

mooted out the anti-SLAPP motion. This court

instead mooted out the demurrer based on the

ruling concerning the anti-SLAPP motion. Weiss duly

objected, see 8-19-08 reporters transcript at 1:12-23

and 3:15 thru 5:14 and 12:9-19 and 13:19-23. (AA p.

38:23 thru p. 39:8); The court ignored that challenge

and the resulting actual injury and prejudice was

obvious because Weiss' constitutionally protected

intangible property in the form of his

cross-complaint was taken away in violation of

constitutional and statutory due process. Had the

Demurrer been determined first the anti-SLAPP

Motion would have become moot." (AA p.

39:16-21):

20. ['"24. There is no absolute judicial immunity for

Zwick & Alquist for functions they performed as

administrators or investigators for Law Office of

Steven Zwick. Attorneys are not advocates of law

while investigating a proposed concern. If they

make plans to fabricate or conceal evidence

regarding that concern they are liable. Nor are

they immune from defamation or unfair

competition while acting as administrators and not

as advocates or officers of the Court. Any such

tortious Course of conduct occured before they

could properly claim to be acting as advocates.

Instead only qualified immunity is provided. In this

case such was lost because of clearly established

law forbidding fabrication or concealment of

evidence. Zwick & Alquist knew it was iegally

impossible for their 2 atiorney friends to make any

belief by merely looking at the service invoices

without also reviewing the client goals and

strategies ana the case files. The two attorney

friends of Zwick purportedly confirmed to him &

Alquist not only that Weiss grossly overbilled, but

also billed for services not performed, similar to the

“positive identification’ of the unreliable expert in

the Fitzsimmons Case cited below. Zwick & Alquist

cannot shield their administrative work with the

aegis of absolute immunity merely because they

later used the fabricated evidence since any

attorney could shield himself from liability for any

constitutional wrong by ensuring that a lawsuit was

eventually filed. The injuries suffered by Weiss by

such tortious conduct of Zwick & Alquist including

defamation, unfair competition, and fraud,

occurred before they functioned as advocates for

Speer. Buckley v. Fitzsimmons (509 U.S. 259; 262, 269,

274, 277-278, fn 7 fn 8)" (AA p. 232:6-26); "35. This

court determined the Attorney Malpractice claim

against Weiss was objectively meritless and that

Speer had voluntarily abandoned any further

attempt to plead it. Evidence: Minute Orders dated

10-16-07 and 1-24-08 (AA p. 234:27 thru p. 235:3; "41.

Zwick told Speer he himself wanted a piece of

Weiss. Evidence: Weiss time card of 4-19-07." (AA p.

236:3-5); "44. Zwick has never once physically

appeared before the court on this case either.” (AA

p. 236:19-21); "49. Cross-Complainant submits a

proposed Ist Amended Cross-

Complaint in connection herewith and requests

leave to file it

should his Opposition otherwise be denied.” (AA

p.238:1 6-18); "12. Jaffe v. Stone (18 Cal.2d 146

(1941) held that the "favorable termination” prima

facie element of the tort of malicious prosecution

does not mean final termination of the entire case;

rather it includes favorable termination of one

cause of action out of a number of causes of

actions if it has been terminated in such a manner

as to show the innocence of the party accused of

wrongdoing (Id. P. 156). Favorable termination of

Speer's Attorney Malpractice cause of action

occurred on 1-24-08 when this court sustained

Weiss's demurrer since it failed to aver the requisite

facts within a case facts. The sustaining of that

demurrer was a legal termination showing the

innocence of Attorney Malpractice because a

demurrer accepts as true alli the facts stated in the

Complaint and the demurrer is a trial on those

facts. This court noted in its Minute Order of 4-3-08

that Speer voluntarily abandoned any attempt to

re-plead the Attorney Malpractice cause of action.

Zwick in open court admitted "we dismissed it"

referring to the Attorney Malpractice cause of

action indicating it was voluntarily dismissed, see

8-19-08 RT 9:18-21. (AA p. 42:12 thru p. 43: 7); "14.

Baker v. Gawthorne (82 Cal.App.2d 496, 500-501

(1947) and Sierra Club Foundation v. Graham (72

Cal.App.4th 1135, 1154 (1999) held that a client

could be liable for malicious prosecution when he

fails to conduct an inquiry into suspicious

circumstances [under Civil Code 19] which lead

him to fail to disclose to his attorney all the facts

\(vi) Other Matter Essential.

PROPOSED 1ST AMENDED CROSS COMPLAINT

PRELIMINARY AVERMENTS

1. The following preliminary averments are hereby

incorporated into the following causes of action

averred in this Cross-Complaint.

2. Zwick and Alquist acted in concern, either as

Principal-Agent, Employer-Employee, or as

co-conspirators, aiders & abettors, and are

otherwise responsible for the torts of Soeer averred

herein

3. As an actual and proximate cause and result of

the acts and omissions averred herein Weiss has

sustained economic and non economic damages

in a sum in excess of $100,000.

4. Asa direct and proximate result of the conduct

of cross-defendanis, and each of them,

cross-complainant has suffered and will continue to

suffer physical injuries, past and future medical

expenses for physical injuries caused by

defendants, humiliation, mental anguish, and

acute fear.

5. Cross-Defendants’ violation of plaintiffs’ rights as

guaranteed by Civil Code sections 52.1 and 51.7

entitle Cross-Complainant to compensatory and

punitive damages, a $25,000 civil penalty, attorney

fees, and injunctive relief, all of which are provided

for in Civil Code sections 52.1(b}) and 52, and are

requested.

6. In doing the acts alleged in this complaint,

defendants knew or should have known that their

actions were likely to injure cross-complainant.

Cross-complainant is informed and believe, and

therefore allege, that cross-defendants intended to

cause injury to cross-complainant and acted with a

willful and conscious disregard of his rights as

secured by Civil Code sections 51, and 52.1, thus

entitling him to recover punitive damages pursuant

to Civil Code section 52(b)(1), and to recover treble

damages, or a minimum of $250 pursuant to Civil

Code section 52(a). .

CIVIL CODE 52.1 CAUSE OF ACTION

AGAINST SPEER, ZWICK & ALQUIST

7. On 1-18-07 in Orange County, California, Speer

maliciously and repeatedly harassed Weiss and

made a credible threat to kill Weiss with the specific

intent that he take that his words as a threat, and

that he be placed in reasonable fear for his safety

by screaming and using vulgarity, profanity, and

saying "Pray for yourself wherever you are going to

wind up." The threatened crime on its face; and,

the way it was made, conveyed an immediate and

specific gravity of purpose to Weiss, and Weiss was

reasonably in sustained fear of his safety based on

Speer's threat. Speer was a highly emotionally

charged individual, taking heavy narcotic drugs for

pain, and was excluded from his workplace

because of making threats of physical violence to

his supervisors and co-workers. As a result Weiss

today lives in daily fear of him

because of Speer's last threat. Speer had previously

on multiple occasions orally abused Weiss. Speer, in

the United States District Court xerox room

remarked to the employee taking his order "| hate

to kill attorneys." Speer's outrageous conduct of

1-18-07 was thus done with intention to cause, or

reckless disregard of the probability of causing,

emotional distress. In engaging in the

above-described threat, Speer acted intentionally,

maliciously, recklessly, and/or negligently so as to

proximately cause Weiss to suffer severe and

extreme mental anguish, pain, suffering and

physical distress, all to Weiss's damage in the sum

well in excess of the minimum jurisdictional amount

of this Court. As an employee-attorney representing

Speer in his lawsuits employer-Speer was in a

position of actual or apparent power over Weiss.

Weiss did not consent to being threatened by

Speer. Weiss was peculiarly susceptible to

emotional distress because Speer's lawsuits had

underpinnings involving workplace threats of

violence uttered by Speer.

8. Zwick misrepresented to Speer that Weiss’

committed malpractice, breach of fiduciary duty,

breach of contract and grossly overbilled him,

which caused Speer to infringe on Weiss's rights

under Civil Code 43 to be free from personal insult

and his rights under Cal. Constitutional to privacy

insofar as Speer made unwanted telephone calls to

Weiss in which he personally insulted Weiss,

coerced, intimidated and harassed Weiss.

9. On 1-18-07 Speer called Weiss during which he

personally insulted Weiss by saying in part: "What

kind of monster are you? Have a nice day and pray

for yourself wherever you are going to wind up.”

Due to the other content of the conversation Weiss

understood it as a threat to kill him.

10. On 4-19-07 Speer telephone Weiss and said "|

have a malpractice attorney who wants part of

you. | will pay nothing on your bill. | owe you

nothing. You should pay all future deposition costs

etc as well as work on a pure contingency basis.”

During that conversation Speer insulted the

intelligence of Weiss as well as his work product.

11. Zwick either (a) caused (b) aided and abetted

or (c) is otherwise responsible for the tort of Speer in

committing personal insult upon Weiss. Zwick and

Alquist gave substantial assistance or

encouragement to Speer to so act. Zwick’s course

of conduct was a substantial factor in causing

Speer's infringement of Weiss’ statutory and

constitutional rights.

12. Zwick knew under Civil Code 19 and the court

documents in the underlying Speer Federal and

State litigation that Speer was accused of insults,

using profanity, and making threats to the

personal safety of his supervisors and co-workers;

and, was physically barred from entering his

workplace because of such threats.

13. Speer intended to interfere by coercion, threat,

and intimidation with Weiss’ rights to be free from

personal insult and assault, defamation, and

breach of contract/quantum mervit. Zwick

interfered with, or attempted to interfere with, Weiss’

statutory rights under Civil Code 43 and his

California Constitutional right to privacy from

unconsented and unwanted intrusion by telephone

in which Speer yelled out personal insult, vulgarity,

coercion and harassment to Weiss. Weiss was

indeed harmed by infringement of his statutory and

Constitutional rights because he continues to live in

fear of his life.

14. Speer's speech was coercive because it

restrained or dominated Weiss' attempt to reply; it

dominated the conversation by nullifying Weiss's will

to reply; it was uttered by Speer to compel Weiss to

submit to Speer's insults, threats, instructions, and

profanity. Speer's speech was threatening as it

gave signs and warnings of trouble, punishment, or

retribution if not followed. Speer's speech was

uttered to make Weiss timid, fearful and frightened.

INTENTIONAL INTERFERENCE WITH CONTRACT

AGAINST ZWICK AND ALQUIST

15. A valid attorney-client retainer contract existed

between Speer and Weiss dated 5-2-2005; and an

oral amendment which was fully executed or

otherwise put out of the power of Weiss to perform.

16. Zwick knew of the existence of that retainer

contract.

17. Weiss was entitled to the quiet enjoymeni of his

contract with Speer.

18. Continuation of the Weiss/Speer contract gave

Weiss economic advantage.

19. Zwick & Alquist engaged in a tortious course of

conduct between February 2007 through the

present designed to disrupt the contract existing

between Weiss and Speer and any further business

from Speer to Weiss. Zwick & Alquist induced Speer

to undertake sham litigation against Weiss because

they conducted no reasonable investigation into

the matters but instead relied on the belief of 2

attorneys in their office building that not only were

the Weiss's invoices grossly excessive and shocking.

but he did not perform the work he billed for.

20. Zwick committed an intentional course of

conduct designed to induce a disruption or breach

of that retainer contract by making known false

representations about attorney malpractice, gross

overbilling, breach of contract and breach of

fiduciary duty. Such misrepresentations were a form

of unfair competition and a fraud on the court.

Zwick knew that Speer had not paid about $24,000

to Weiss for services and costs rendered in the

underlying litigation but he told Speer that Speer

did not have to pay them, and that he could get

all the money back plus punitive damages and

they both could make money off Weiss and that

Zwick wanted a piece of Weiss. Zwick tvered in

Speer's Original and three Amended Complaints

that Speer fully performed all conditions and

promises to be perform on his part under the

retainer agreement knowing full well that such

averment was false.

INTERFERENCE WITH PROSPECTIVE ECONOMIC

RELATION

AGAINST ZWICK AND ALQUIST

21. Zwick intentionally interfered with the 5-2-2005

attorney-client contract between Speer and Weiss

by falsely saying, among other things, around and

about February 2007 in Mission Viejo, California, that

Weiss grossly overbilled him and that he wanted a

piece of Weiss. Thereafter in April 2007 Speer

instructed Weiss to dismiss all his lawsuits, which

Weiss did therefore loosing all existing as well as

potentialiy recoverable attorneys fees and future

business from Speer in a sum exceeding $100,000.

22. By wrongful means Zwick induced Speer to fail

to pay his attorney bills under an existing contract

with Weiss and therefore interfered with the

economic relationship existing between Speer and

Weiss.

23. The wrongful means are alternatively states as:

A. The intentional, fraudulent, and deceitful

representation of fact that Weiss had grossly

overbilled Speer.

B. By representing to Speer that not only did he

not have to pay any more fees to Weiss, but fhat

Speer and Zwick could make money off Weiss by

suing him for malpractice based upon gross

overbillings.

C. By means of using undue influence operating

on the mind of Speer who he knew was, and had

been for years, under the care of doctors and

psychiatrists who had prescribed morphine and

multiple other drugs for Speer to ease the pain

caused by vertebrae problems in his upper neck

and lower back. Weiss sent a purported suicide

note by Speer to Zwick in April 2007 warning him of

Speer's condition; but, Zwick in conscious

indifference to the safety of Speer, Weiss, the Judge

in this case, and others, nonetheless urged Speer to

bring suit. Zwick knew that if Soeer won in the 9th

Circuit that victory would go a long way in easing

his emotional condition; and vice-versa that losing

or dismissing his lawsuits would result in no

vindication and hence go a long way in

exacerbating his weakened mental condition.

Zwick's conduct was hence malicious and

despicable under the circumstances.

24. Zwick acted with intent to harm Speer and well

as Weiss; or alternatively acted in conscious

disregard or reckless indifference to their safety and

economic interests as follows:

A. Zwick deprived Speer of a 9th Circuit decision.

Zwick interfered with the Petition Clause rights of

Weiss and Speer by impliedly urging Speer to

dismiss his lawsuits. Had Speer prevailed in the 9th

Circuit a settlement would probably have

followed, but Zwick's intermeddling pre-empted

that option.

B. Zwick, acted with intent to profit himself

financially when he stole Speer away from Weiss.

Zwick knew that had Speer won in the 9th Circuit he

would be awarded attorney fees and costs under

42 U.S.C. 1988 or other statute. He knew that further

representation of Speer would generate more

attorney fees for Weiss; however Zwick himself

unilaterally decided that Weiss had too much fees

already, and advised Speer stop paying, and then

sue him to recover back the fees he already paid.

Zwick did not advise Speer to file a Declaratory

Relief lawsuit seeking a determination that he had

the right to terminate the contract due to gross

overbilling; rather Zwick acted outside the role of a

proper attorney and made that determination

himself hoping to pocket the fees Speer owed to

Weiss through a malpractice suit. Zwick knew that if

he was wrong about overbilling that Speer could

be held liable to Weiss for either the $24,000 under

written contract o7 another sum under quantum

meruit; but he acted in conscious indifference to

those consequences when inducing Speer to bring

a malpractice suit.

25. By falsely representing to Speer that Weiss

overbilled him and committed attorney

malpractice Zwick's representations tended to

persuade Speer to withdraw his business from Weiss.

Speer's frivolous and sham malpractice suit tends to

damage Weiss from future business with Speer and

the entire legal community around the world as his

defamatory filing is a public record for all to read.

nn ee eee

26. An existing and potentially future economic

relationship existed between Weiss and Speer

which Zwick had knowledge of; and, Zwick's acts

were designed to induce a termination, breach,

or disruption of that relationship by making

performance of the Speer/Weiss contract more

burdensome or more costly than it should have

been. Zwick succeeded in causing a breach,

termination and disruption of the economic

relationship between Weiss & Speer in that Speer

instructed Weiss to dismiss all his litigation and fired

Weiss and then brought malpractice suit against

him. As an actual and proximate cause and result

of Zwick's malevolent interloping Weiss has

sustained economic and non-economic damages

in an amount currently Unknown, but over this

courts minimal jurisdictional amount.

27. Zwick violated Business and Professions Code

17500 when making the false representation that

Weiss grossly overbilled Speer; and by aiding and

abetting, or otherwise inducing Speer, to terminate

all his litigation, fire Weiss, and then sue him for

malpractice.

28. Had it not been but for Zwick's representations

to Spee7, Speer would not have done what he did.

Had Zwick not uttered his false inducements to

Speer, Speer would not have instructed Weiss to

dismiss all his lawsuits, fire Weiss, nor sue him for

malpractice.

MALICIOUS PROSECUTION

AGAINST SPEER, ZWICK AND ALQUIST

29. Speer's Original, Ist and 2nd Amended,

Complaints for Attorney Malpractice were

commenced by or at the direction of the

defendant and was pursued to a legal termination

favorable to the plaintiff; they were brought without

probable cause; and they were initiated with

malice.

30. No reasonable litigant in Speer’s position could

realistically expect success on the attorney

malpractice claim since the malpractice suit did

not even aver the required "case within a case"

facts.

31. The subjective motive of Speer in filing the

attorney malpractice suit against Weiss was driven

by a desire to switch his claim trom non-service

connected injury to service-connected injury, and

thus receive monetary long term disability benefits

from O.C.E.R.S., while at the same time recovering

all fhe attorney fees he paid to Weiss and avoiding

the rest of the Unpaid fees to Weiss. That switch was

a fraud upon O.C.E.R.S. and Weiss. Further

evidence of bad intent by Speer.was his use of

profanity, personal insult and threat to kill Weiss.

Speer wanted to make Weiss suffer emotionally,

physically and reputationally. Further evidence of

subjective bad intent include Speer's claim of

punitive damages without any factual averments

warranting same, and claim for attorney fees for

breach of contract when the contract did not

provide for them.

32. This court determined the attorney malpractice

claim against Weiss was objectively meritless and

that Speer had voluntarily abandoned any further

attempt to plead it. Abandonment is evidence of

subjective bad motive as most people do not

abandon what they consider meritorious litigation.

33. Zwick knew that his statements to Speer that the

Invoices of Weiss were shocking and grossly

excessive were false; and, he acted in conscious

disregard of the truth, being motivated by feelings

of ill will toward Weiss. This is because Zwick had no

opinion of his own since he was not qualified in

Labor Law to render such opinion; relied on the

belief of 2 attorneys in his office building who

themselves were given nothing but the Invoices

and no information about the goals and strategies

of Speer nor Weiss; nor given the litigation, exhibit,

witness, or correspondence, files of the underlying

Speer litigation.

34. Speer, Zwick & Alquist, knew that the attorney

malpractice claim was false and unsupported

when it was filed; or, alternatively they made that

claim in purposeful avoidance of the truth.

35. Zwick induced Speer to initiate, and then

maintain, an attorney malpractice suit against

Weiss due to his corrupt motive of financial; and,

passionate hostile, interest. Zwick told Speer he

himself wanted a piece of Weiss.

36. The Weiss invoices billed for services that were

publicly filed. The billing for publicly filed

documents refuted the averment that Weiss billed

for services not performed. Speer, Zwick & Alquist

have no evidence that Weiss did not perform the

other services he billed Speer for and that

allegation is baseless. Weiss in fact billed only for

services actually rendered.

37. Although Zwick's 4-26-07 letter to Weiss sought a

reply to the averments in a proposed malpractice

suit attached thereto; and, although Weiss replied,

never once thereafter up to the present day has

Zwick orally spoken one word to Weiss about

ae he

aergee as — Pee —

anything in the case, nor even reply in writing to the

4-26-07 and 4-28-07 reply letters of Weiss.

38. Zwick has never once physically appeared

before the court on this case either.

39. Weiss's contractual relationship with Speer was

interfered with by Zwick & Alquist. Under the

Weiss/Speer contract and underlying litigation that

attorney fees were recoverable under 42 U.S.C.

1988, the Americans With Disability Act; and, the

Government Code. Recovery of those fees was

reasonably expected.

40. Performance by Weiss under the Weiss/Speer

contract was interfered with by Zwick & Alquist

since after they told Speer that Weiss breached his

contract with Speer, breached his fiduciary duties

to him, committed malpractice, charged him fees

that were grossly excessive, shocking, and would

sue to recover punitive damages and attorney fees

under the Weiss/Speer contract, Speer instructed

Weiss to dismiss all his litigation and fired Weiss. Such

representations by Zwick & Alquist were false and

made either with malice, intent to avoid the truth of

the matters, with reckless or Conscious indifference

to the rights of Weiss to safety, freedom from

personal insult or threat from Speer, and/or the

rights of Weiss under the Speer/Weiss contract or

the liberty and property rights of Weiss under the

U.S. Due Process Clause or his right of access to

courts under the U.S. Petition Clause made

applicable upon the States by the Fourteenth

Amendment Due Process Ciause.

41. The power, strategy and resources of Zwick &

Alquist were used solely to harass and deter Weiss in

his US Petition Clause right of access to courts

including the right to be heard in a meaningful

manner ie without perjury, fraud, due to filing and

maintaining a sham attorney malpractice suit

against him for about 1 year until they abandoned

it after the court found it unmeritorious due to

failure to aver a case within a case facts. Zwick &

Alquist diminished the value of Weiss's business by

filing the sham malpractice lawsuit, interfered with

his existing contract relations with Speer, interfered

with his prospective economic relations with Speer,

injured his reputation publicly, caused him to suffer

emotional and physical injury; and, caused him to

loose wages he otherwise would have earned had

he not chosen to defend himself against such sham

litigation. Those injuries were the goal and intent of

Speer, Zwick & Alquist.

42. Further evidence of subjective bad intent by

Zwick include his statement that he "wants a part of

Weiss’; his failure to serve the Ist amended

Complaint, instead fraudulently inducing Weiss to

make a general appearance based upon service

of only the original Complaint; failure to reply to

Weiss's letter of 4-28-07; and the fact that Zwick and

Alquist have an actual conflict of interest in this

case and in bad faith assert there is no conflict of

interest.

BREACH OF CONTRACT/QUANTUM MERUIT

AGAINST SPEER

43. Under the Speer/Weiss Retainer Contract, as

written and subsequently modified, it was agreed

that Weiss would provide legal services for Speer

specifically designed to avoid Workers

Compensation claims. Weiss fully performed by

filing lawsuits in state and federal court, as well as

an Appeal in the Ninth Circuit. Weiss also acted in

place of Speer's Union representative in meetings

with Speer's employer. Shortly before oral argument

in the Ninth Circuit, Soeer instructed Weiss to dismiss

all Speer's litigation, which Weiss did. Speer's

instructions were made because Speer wanted to

change position and claim his injuries were

service-connected in order to get long term

disability benefits from O.C.E.R.S. At the time of

Speer's instructions to dismiss his litigation he owed

an unpaid balance in excess of $23,000 which

remains unpaid today; and interest at the legal rate

is sought.

44. Alternatively stated, Speer knew that Weiss

would perform services at a reasonable rate and

Speer with knowledge requested Weiss to perform

such services.

FRAUD

AGAINST ZWICK AND ALQUIST

45. Zwick knew Speer's proposed Original

Complaint against Weiss for malpractice attached

to his 4-26-07 letter, was generated without his

having authorization nor sufficient evidence or

cause to file it because neither he. nor anybody on

his behalf conducted reasonable inquiry by

reviewing the underlying Speer litigation,

evidence, witness, and correspondence, files. Zwick

had no knowledge of the litigational goals and

strategy of Speer nor Weiss.

46. The 4-26-07 letter of Zwick was meant as a

tactical ploy to induce a money settlement by

Weiss and there was no indication that litigation

was imminent. The 4-26-07 Zwick letter was not

written in a good faith belief that a legally viable

claim for attorney malpractice existed.

47. Speer, through Zwick's 4-26-07 letter violated

Civil Code 1572(1)(2)(3)(5) by making false

contractual claims to Weiss during the time Speer's

pending underlying litigation was active in April

2007. Those claims required Weiss to investigate by

expending time and money which he would not

otherwise have undertaken. Those claims were

false as Speer and Zwick knew. Those claims

alternatively were made by Speer and Zwick

without sufficient information to make them.

48. Zwick filed Speer's original complaint for reasons

personal to himself; it to get a piece of Weiss. Zwick

intended to steal or convert the approximate

$24,000 that remained unpaid by Speer.

49. Zwick knew the averments in Speer's original, 1st,

and 2nd amended complaint were false. Zwick

alternatively knew he made no reasonable

investigation of their averments and hence had no

reasonable ground to believe them to be true.

50. Zwick continues to maintain Speer's 3rd

amended complaint with knowledge the

averments are false.

51. In and about February 2007 when meeting to

discuss a concern of Speer about Weiss's billings,

Zwick informed Speer that Weiss grossly

overcharged Speer as a matter of fact, not opinion.

Zwick made the assertion, as a fact, of that which is

not true by one who had no reasonabie grounds

for believing it to be true. Zwick made no factual

investigation into the facts regarding Speer's existing

litigation, nor of Speer's unique contractual needs,

nor of the reasons for the billings that Weiss invoiced

Speer, nor about the reasonableness of the fees

from an disability discrimination expert witness. The

representation made by Zwick was in fact false. The

true facts were that the charges were reasonable

as a matter of fact. In unjustifiable reliance upon

these representations, Speer fired and sued Weiss

shortly before oral argument in the Ninth Circuit

Court of Appeals. Had Speer known the actual

facts, he would not have taken such action.

52. Speer and Zwick's conduct arose from hatred

and ill-will toward Weiss and a desire to oppress him

and with the wrongful intention of injuring him. The

conduct was taken with an improper and evil

motive amounting to malice and in conscious

disregard of the rights and safety of Weiss. Speer

threatened to kill Weiss, instructed him to dismiss all

his litigation for deceitful reason, and then sued to

recover the money he paid for the services

rendered by Weiss. Because the actions taken

toward Weiss were carried out in a cold, deliberate,

callous and intentional manner in order to injure

and damage Weiss, and cause him fo live in fear,

he is entitled to recover punitive damages from

Speer and Zwick in an amount according to proof

and in an amount appropriate to punish and make

an example of them.

WHEREFORE, Cross-Complainant request

judgment against

defendants as follows:

1. General damages according to proof;

2. Special damages according to proof;

3. Punitive damages pursuant to Civil Code section

§2(b)(1):

4. A statutory civil penalty of $25,000 pursuant to

Civil Code

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.