Tuesday, September 6, 2022
Page 1
C.A.: No Relief From Striking Complaint Where Lawyer for Plaintiff Blundered
By a MetNews Staff Writer
Shoddy lawyering by the plaintiff’s counsel provides no basis for setting aside a judgment in favor of the defendant following the granting of an anti-SLAPP motion, the Third District Court of Appeal declared Friday.
In an unpublished opinion by Justice Andrea L. Hoch, the court rebuffed arguments by Trevor Francis Coker as to why his action against his former girlfriend, Lauren Whitney Lewis, should be reactivated.
Coker sued Lewis, as well as Michael Harr, on Sept. 14, 2020, in Sacramento Superior Court claiming that they had filed false reports with law enforcement authorities accusing him of domestic violence. He sued for malicious prosecution, defamation, and intentional infliction of emotional distress.
Lewis filed an anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16. In his opposition, Trevor’s lawyer, Glen F. Olives, failed to address the second prong of the statute which requires that a plaintiff establish—if the defendant satisfies the first prong by showing that the conduct in issue was protected—a probability of prevailing on the merits.
Sacramento Superior Court Judge Christopher Krueger on Jan. 5, 2021, finding that Coker “has not met his burden on the second prong of the anti-SLAPP statute.”
Coker sought discretionary relief under Code of Civil Procedure §473(b), based on “mistake, inadvertence, surprise, or excusable neglect,” as well as mandatory relief based on Olives’s declaration that the adverse ruling stemmed from “attorney’s mistake, inadvertence, surprise, or neglect.”
Affidavit of Fault
In his declaration, Olives explained:
“While substantial evidence exists that both Defendants filed or caused to be filed knowingly, falsely, maliciously, and without probable cause, false police reports against Plaintiff, I only addressed the first prong of anti-SLAPP analysis (whether complaint arises from ‘protected activity’), and did not provide further evidence under the second prong of probability of prevailing on the merits. I should have.”
He added:
“This omission was a good faith mistake predicated on my neglect in not realizing the importance of supplementing the pleadings with further evidence of the Defendants’ culpability, and my belief that Defendant...could not withstand the requirement of the first prong.”
Motion Denied
Barbara Ann Zuniga, a retired judge of the Contra Costa Superior Court, sitting on assignment, on April 29, 2021, denied Coker’s motion for relief, saying:
“a. It is apparent Counsel was aware of the two prongs of the anti-SLAPP analysis as it was set forth in opposing counsel’s moving papers and addressed in Plaintiffs own opposition.
“b. Counsel simply believed Plaintiff could defeat the anti-SLAPP motion on the first prong, and thus chose not to even address the second prong and present supporting evidence.
“c. Counsel made a calculated determination not to advance an argument, which led to an adverse ruling against Plaintiff…
“d. Counsel then compounded the error by deciding not to call for oral argument or raise this challenge until two months after the minute order was issued….
“e. Counsel’s failure to advance an argument and present evidence is conduct falling below the professional standard of care, not excusable neglect.”
In her opinion affirming the order denying relief and the judgment, Duarte declared that Zuniga did not abuse her discretion because the lawyer’s slip-up in not addressing the second prong of §425.16 was not “excusable” and the mandatory-relief provision is inapplicable.
Discretionary Relief
Addressing discretionary relief, noted the contention by Coker that his attorney “in squirming through the rabbit holes of appellate opinions regarding anti-SLAPP motions, came to a reasonable conclusion...that the averments in the complaint which described with specificity where, how, and why defendants made false statements without probable cause to law enforcement, were sufficient to withstand [defendant’s] special motion to strike.:
Duarte responded:
“We are not persuaded.
“If plaintiff counsel’s understanding of the case law were credited, it would essentially negate the second prong, and, in fact, negate the special motion to strike itself, where allegations of malicious prosecution are asserted….If this premise…were correct, to withstand a defendant’s special motion to strike in a case such as this, a plaintiff would merely have to point to allegations in the complaint that the defendant’s reports to law enforcement were false and constituted malicious prosecution. Taking the allegations of the complaint as true and not weighing the evidence, courts would always deny a special motion to strike at the first step because a defendant would not be able to establish he or she was engaged in protected activity.”
Mandatory Relief
The mandatory provision, based on an attorney’s affidavit, she noted, authorizes relief from a “default judgment or dismissal,” which has been held to be inapplicable to summary judgments, Duarte noted, declaring:
“[W]e conclude that a special motion to strike pursuant to section 425.16 is no more a default, default judgment, or dismissal within the meaning of the mandatory provision of section 473, subdivision (b) than is a motion for summary judgment. Accordingly, we conclude plaintiff is not entitled to relief pursuant to that mandatory provision here.”
An award of attorney fees to the respondent in an appeal from a judgment granting a special motion to strike is not expressly authorized by §425.15, Duarte noted, but said that such fees have been awarded to effectuate the purposes of the statute, and ordered that fees in favor of Lewis be set on remand.
The case is Coker v. L.L., C094221.
The State Bar Court on June 25, 2002, placed Olives in involuntary inactive status based on the Yuba Superior Court having assumed jurisdiction over his law practice on April 25, 2002. Olives had simply abandoned his practice and left town.
He gained reinstatement on Feb. 6, 2020.
Copyright 2022, Metropolitan News Company