Thursday, November 15, 2018
Court of Appeal:
Must Cut Fee Award for Partly Successful Anti-SLAPP Motion
By a MetNews Staff Writer
This district’s Court of Appeal has reversed the attorney’s fee award granted a woman whose special motion to strike defeated two of three causes of action levied against her, in part because the trial judge didn’t consider the fact that her victory didn’t materially change the litigation.
The unpublished opinion, filed Tuesday, was written by Div. Four Justice Thomas L. Willhite Jr. It reverses the award by Los Angeles Superior Court Judge Laura A. Matz, and directs the trial court to reconsider the award in light of the motion’s limited effect on the case and other factors.
The defendant in the case, Gianna Breliant, had previously sued Darryl Fujihara and Seacliff Recovery Center—along with celebrity interventionist Warren Boyd—claiming that they shared responsibility for the heroin-overdose death of her daughter, Amy Breliant.
Fujihara and his clinic filed a demurrer which was sustained without leave to amend. They then sued the elder Breliant, along with her attorney, Russell S. Balisok, and his firm, for malicious prosecution, conspiracy to commit malicious prosecution and abuse of the judicial process.
Gianna Breliant hired Boyd in 2010 to help her daughter recover from her heroin addiction, but she died that same year. Breliant brought her lawsuit two years later.
In addition to Boyd and Fujihara, she also sued several other parties, including several doctors and actress Carrie Fisher (now deceased).
She accused Boyd—who has provided his services to such celebrities as Courtney Love, Mel Gibson, and the late Whitney Houston—of lacking any training or licensure for his drug intervention services, and claimed that his cohorts had provided her daughter with drugs in exchange for sex, and that these activities had occurred in part at Fisher’s guest house.
(Boyd was the inspiration for A&E’s television drama The Cleaner, about a recovering drug addict who devotes his life to helping people in Los Angeles overcome drug and alcohol addiction using unorthodox and even illegal methods. The show ran for two seasons from 2008-2009 before being cancelled.)
Los Angeles Superior Court Judge Donna F. Goldstein was not persuaded by Breliant’s claim that a $27,000 payment processed by Seacliff made the clinic and Fujihara liable for fraud.
Goldstein sustained Fujihara and Seacliff’s demurrer. According to Fujihara, Boyd had needed to run Breliant’s credit card to process a fee, so he allowed the man to do so using Seacliff’s credit card processing system; they had no contact with Amy Breliant, and had made no misrepresentations to her.
A different panel of Div. Four affirmed Goldstein’s order of dismissal in 2014. The two brought their case against Breliant a year later.
According to their complaint, Breliant had known that her daughter never had any contact with the clinic or its owner when she filed her complaint against them. They also alleged that she falsely denied authorizing Boyd to charge her credit card.
Matz granted the special motion to strike the conspiracy claim due to the lack of an order under Civil Code §1714.10, which requires a court to sign off on such causes of action brought against attorneys alleged to have conspired with their clients.
Dismissing the abuse of process claim, she noted that “the complaint fails to allege any conduct other than the filing and pursuit of the allegations of the complaint and no actual judicial processes are alleged to have been abused.”
She denied the request to strike the malicious prosecution claim itself, finding the plaintiffs to have adequately alleged that cause of action.
The judge determined that Breliant and Balisok were the prevailing parties, and based on that finding awarded them all of their requested attorney’s fees, totaling more than $56,000.
Impact ‘Not Significant’
“[I]n the instant case, the practical impact of the dismissal of the conspiracy and abuse of process causes of action was not significant….Appellants’ civil conspiracy and abuse of process claims were based on the allegations of the malicious prosecution cause of action. Thus,…after the dismissal of the civil conspiracy and abuse of process claims, the malicious prosecution claim remained; the factual allegations and scope of discovery did not change.”
“Breliant argues that her motion to strike was successful because it disposed of 66.6 percent of the causes of action against her, citing statistics in other cases awarding a defendant fees for a partially successful anti-SLAPP motion. The argument misses the mark. It is not merely a matter of how many causes of action are dismissed and how many remain. Rather,… ‘an approach that concentrates on the practical impact of a partially successful motion on the overall litigation advances the objectives of the anti-SLAPP statute and minimizes abuses.’ ”
The case is Fujihara v. Breliant, B284107.
David J. Scharf of Gravitas Law Group in Fullerton represented Fujihara and Seacliff. Stephen G. Larson and Steven E. Bledsoe of Larson O’Brien in Los Angeles, and Bruce M. Bunch in Westlake Village were counsel for Breliant; Edmund G. Farrell of Murchison & Cumming in Los Angeles argued for Balisok and his firm.
Copyright 2018, Metropolitan News Company