arrow left
arrow right
  • Danning Jiang vs James Cai et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Danning Jiang vs James Cai et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Danning Jiang vs James Cai et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
  • Danning Jiang vs James Cai et al Other non-PI/PD/WD Tort Unlimited (35)  document preview
						
                                

Preview

19 20 21 22 23 24 25 26 27 28 Brian A. Barnhorst (SBN 130292) LAW OFFICE OF BRIAN A. BARNHORST 88 S. Broadway #2401 Millbrae, CA_ 94030 Telephone: (619) 379-7405 babarnhorst@gmail.com Attorneys for Defendants JINGMING CAI and SAC ATTORNEYS LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DANNING JIANG, an individual, Plaintiff, Vv. JAMES CAI aka JINGMING CAI, an individual; SAC ATTORNEYS LLP, a California limited liability partnership; and DOES 1-10, inclusive, Defendants. Case Number: 19CV341417 REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] Date: July 2, 2019 Time: 9:00 a.m. Dept: 9 Defendants JINGMING CAI and SAC ATTORNEYS LLP submit the following Reply Memorandum in support of their special motion to strike (the “Motion”) Plaintiff's First Amended Complaint (the “FAC”) pursuant to Code of Civil Procedure section 425.16 (the “anti-SLAPP statute”). {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 010 i 12 13 14 15 16 20 21 22 23 24 25 26 27 28 I INTRODUCTION Defendants’ Motion argued that each cause of action of Plaintiff's FAC was subject to the anti- SLAPP statute, that each was improperly pleaded, and that Plaintiff could not establish a probability of succeeding on the merits as to any of them. Plaintiff's Opposition argues that the Motion was untimely; Defendants’ conduct is not subject to the anti-SLAPP statute because that conduct was allegedly criminal; Plaintiff will prevail on the merits as to each of the three causes of action; and even if they prevail on this motion, Defendants are not entitled to an award of fees and costs. For the reasons set forth below, none of these arguments has merit. This Motion should be granted, the FAC should be stricken, and Defendants should be awarded their reasonable fees and costs. IL ARGUMENT A. As Judge Kirwan Properly Ruled, Defendants’ Motion Was Timely Filed. Plaintiff filed his complaint for abuse of process and malicious prosecution on January 18, 2019, and filed an amended complaint 12 days later, adding a third cause of action (alleging violations of B&P Code § 17200). On April 12, 2019, Defendants appeared ex parte for the purpose of obtaining leave to file a memorandum in excess of 15 pages and to file beyond the 60-day limit set forth in CCP § 425.16(f). After Plaintiff saw the order on Defendants’ ex parte application, he appeared ex parte on April 16, 2019, arguing that the motion was untimely, pursuant to Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5“ 637 (2018), and that he would have opposed Defendants’ ex parte application had he known that leave to file beyond 60 days was being sought. Judge Kirwan denied the motion without prejudice, noting that the courts prefer to resolve issues on their merits. Judge Kirwan was correct to allow the filing of Defendants’ anti-SLAPP motion. Newport Harbor does indeed stand for the general proposition that, without leave, a defendant may only bring such a motion as to new causes of action asserted in an amended complaint. The court expressly disapproved of the “broad[]” holding in Yu v. Signet Bank/Virginia, 103 Cal. App. 4th 298 (2002), that a Defendant may always file an anti-SLAPP motion as to the entire pleading in response to an amended) complaint. Newport Harbor, 4 Cal. 5" at 644, 656. The court left undisturbed, though, a trial court’s {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 120 21 22 23 24 25 26 27 28 discretion to allow the filing of such a motion after the 60-day period when it is clear that the moving defendant is not engaged in “gamesmanship” (id. at 644) or attempting to “abuse” or “misuse” the anti- SLAPP statute “to delay meritorious litigation or for other purely strategic purposes” (id. at 645; quoting Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 195 (2005)). In this case, as the trial court noted when it exercised its discretion to deny a late filing, much litigation, including discovery, had already been conducted for two years before the anti-SLAPP motion brought it to a halt. It is far too late for the anti-SLAPP statute to fulfill its purpose of resolving the case promptly and inexpensively. Newport Harbor, 4 Cal. 5" at 645. Here, the FAC was filed only 11 days after the original, and the anti-SLAPP motion was filed a mere 71 days after the original complaint was served. Defendants have engaged in no discovery other than attempting to subpoena the settlement agreement that terminated the underlying litigation, and no motion practice (merely opposing Plaintiffs requests for leave to conduct discovery and to further amend his pleading); Defendants have certainly engaged in no gamesmanship or attempted to abuse or misuse the anti-SLAPP statute “to delay meritorious litigation or for other purely strategic purposes.” B. Despite Plaintiff's Vague Allegation of Ilegality, All of Defendants’ Conduct Is Subject to the Anti-SLAPP Statute. Ruling on an anti-SLAPP motion involves a two-step analysis. “First, the court decides whether] the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” Eguilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). This| protected activity “includes qualifying acts committed by attorneys in representing clients in litigation.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006). If such a showing has been made, the burden then shifts to plaintiff to demonstrate a probability of prevailing on the claim.” Equilon, 29 Cal. 4th at 67. Section 425.16 defines “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,” to include statements or writings before a judicial proceeding . . . and statements or writings made in connection with an issue under consideration or review by a judicial body. Thus, statements, writings, and pleadings in connection with civil litigation are covered by the anti-SLAPP statute .. . . Feldman v. 1100 Park Lane Associates, 160 Cal. App. 4th 1467, 1478 (2008) (citations and internal quotation marks omitted; emphasis added). Filing a cross-complaint, propounding discovery, and {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 220 21 22 23 24 25 26 27 28 conducting depositions are statements or writings before a judicial proceeding or made in connection with an issue under consideration or review by a judicial body, and are quintessentially activities covered by the anti-SLAPP statute. Feldman, 160 Cal. App. 4th at 1478. Thus it is clear that virtually all litigation-related conduct is “protected activity” under the anti-SLAPP statute. The courts have recognized one exceedingly limited exception, and Plaintiff relies solely on this exception in arguing (see Opposition at 14:13-16:15) that Defendants have not satisfied the first prong of the statute: [W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiffs action. Flatley v. Mauro, 39 Cal. 4th 299, 320 (2006). The court stressed that this exception is “narrow” (id. at 316) and that its ruling is limited to “those rare cases where the defendant’s assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law.” Jd. at 320. In Flatley, defendant was an Illinois attorney representing a woman who claimed that Michael Flatley (of “Riverdance” fame) had raped her in a Las Vegas hotel room. In a “demand” letter and in subsequent phone calls with Flatley’s lawyers, Mauro threatened public exposure unless Flatley paid a multimillion-dollar settlement. Flatley sued Mauro for inter alia civil extortion. Mauro filed an anti- SLAPP motion, arguing that his letter and phone calls were “protected activities”—mere pre-litigation settlement discussions. The trial court disagreed, and denied the motion. Fiatley, 39 Cal. 4th at 311. The supreme court affirmed, easily finding that Mauro’s conduct constituted criminal extortion as a matter of law (id. at 325); as such, his conduct was not constitutionally protected, and therefore the anti-SLAPP statute did not apply.! 1 Flatley relied on Paul for Council v. Hanyecz, 85 Cal. App. 4th 1356 (2001), where defendants acknowledged that they had engaged in money laundering to funnel illegal campaign contributions. Flatley, Paul, and Cohen v. Brown, 173 Cal. App. 4th 302 (2009) (extortion), appear to be the only cases ruling that the conduct was unlawful and therefore outside the anti-SLAPP statute; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. Ath 1228 (2005) (granting of anti-SLAPP motion reversed solely as to violation of San Diego Municipal Code for picketing at a private residence). For cases not finding illegal conduct, see, e.g., City of Montebello v. Vasquez, | Cal. 5th 409 (2016); Cross v. Cooper, 197 Cal. App. 4th 357 (2011); Finton Construction, Inc. v. Bidna & Keys, APLC, 238 Cal. App. 4th 200, 210 (2015). {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 320 21 22 23 24 25 26 27 28 It is not clear what crime Defendants allegedly committed that would preclude them from relying on the anti-SLAPP statute here; Plaintiff asserts that “the evidence conclusively established that CAI’s conducts [sic] are illegal as a matter of law” but identifies neither the evidence nor the crime. Although the FAC’s third cause of action (unfair business practice) alleges that Defendants violated four distinct Penal Code sections, Plaintiff does not explicitly rely on any of those alleged violations; instead, he cites case law regarding aiding and abetting the commission of an intentional tort (see Opposition 15:14-27), and then asserts that “CAI aided their clients to commit the perjury” (Opposition at 15:28) and “CAI conspired with his clients to distort the truth.” (Opposition at 16:10.)? Neither the foregoing nor anything else alleged in the FAC in any way conclusively establishes that Defendants committed a crime as a matter of law, and Defendants have certainly not admitted the commission of a crime. This motion is therefore not precluded by Flatley, and Defendants have satisfied the first prong of the anti-SLAPP statute. Cc. Plaintiff Has Not Satisfied His Burden of Establishing a Probability of Success on the Merits as to Any of His Claims. Once the moving party has established that the conduct complained of is “protected activity” under the anti-SLAPP statute, the burden shifts to plaintiff. The second prong of the anti-SLAPP statute requires plaintiff to properly plead—and to produce competent admissible evidence in support ofeach and every essential allegation of the claim. Averill v. Superior Court, 42 Cal. 4th 1170, 1176 (1996). Here, Plaintiff has not pleaded and/or proven any of his claims. 1. First Cause of Action: Abuse of Process a. This cause of action is barred by the litigation privilege. Plaintiff half-heartedly argues that “CAI’s conducts [sic] had no connection or logical relation to the action, and were not made to achieve the objects of the litigation.” Opposition at 17:12-13. This assertion is contrary to the facts and the law, and Plaintiff cites no authority for it because there is none. Under Civil Code section 47, subdivision 2,a publication made in a judicial proceeding is absolutely privileged, ie., the privilege attaches even though the publication was made with actual malice or with intent to do harm. The privilege 2 To be sure, the conduct must be illegal, not merely improper. “[I]t has been recognized that ‘the Supreme Court’s use of the phrase “illegal” [in Flatley] was intended to mean criminal, and not merely violative of a statute.”” Finton, 238 Cal. App. 4th 210 (citations omitted). {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 420 21 22 23 24 25 26 27 28 created by section 47, though part of the statutory law dealing with defamation, has been applied by case law to defeat a variety of tort actions, including abuse of process. Profile Structures v. Long Beach Bldg. Material Co., 181 Cal. App. 3d 437, 441 (1986) (citations omitted). Plaintiff alleges that Defendants “filed Cross-Complaints against JIANG . . ., took the deposition of JIANG . . . [and] propounded discovery requests to JIANG... .” Each of those acts is protected by the absolute privilege. See Baker v. Littman, 138 Cal. App. 2d 510, 514 n.1 (1956); Izzi y. Rellas, 104 Cal. App. 3d 254 (1980); Abraham v. Lancaster Community Hospital, 217 Cal. App. 3d 796, 824 (1990). The same is true of the execution and filing of verifications. Defendants’ submission of the verified pleading is likewise privileged. .. . The privilege has been applied specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations. ... Thus, the Court of Appeal here correctly concluded that the communicative act of filing an allegedly false declaration of service of process fell within the litigation privilege. Rusheen, 37 Cal. 4th at 1058, citing Pettitt v. Levy, 28 Cal. App. 3d 484, 489 (1972). All of the conduct complained of is protected by the absolute privilege, and Plaintiff therefore cannot establish a probability of succeeding on his claim for abuse of process. b. Defendants did not “abuse” a “process” in the underlying action. Defendants’ Motion addressed at length the fact that Plaintiff has not properly pleaded, and cannot establish, that Defendants “abused” a “process” in the underlying action. In particular, they explained that the filing of a complaint, and the maintenance of a lawsuit, are not properly the basis for a claim for abuse of process; rather, they are the basis of a claim for malicious prosecution. S.A. v. Maiden, 229 Cal. App. 4th 27, 41-42 (2014); Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1169 (1986) (“the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action”). Conducting discovery is likewise not actionable. See, e.g., State Farm Mutual Automobile Ins. Co. v. Lee, 193 Cal. App. 4th 34, 40-41 (2011) (engaging in discovery does not satisfy “the willful-act-in-a-wrongful-manner element”); Flores v. Emerich & Fike, 416 F. Supp. 2d 885, 907 (E.D. Cal. 2006) (“a violation of civil discovery rules . . . on its own, does not constitute an abuse of process”). Plaintiff cannot establish a probability of success on the merits on his claim for abuse of process because he cannot show that Defendants abused a process. {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 319 20 21 22 23 24 25 26 27 28 c. Plaintiff has not alleged, and cannot prove, an ulterior motive. “{Mlere vexation [and] harassment are not recognized as objectives sufficient to give rise to the tort.” Younger, 38 Cal. App. 3d at 297. “Mere ill will against the adverse party in the proceedings does not constitute an ulterior or improper motive.” Jon Equipment Corp. v. Nelson, 110 Cal. App. 3d 868, 876 (1980). “Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required... .” Clark Equipment Co. v. Wheat, 92 Cal. App. 3d 503, 524 (1979) (internal quotation marks omitted). Mr. Cai has categorically denied any improper motive, and has rebutted each allegation regarding his intent or state of mind (see his declaration filed in support of the Motion), but nothing alleged by Plaintiff would be actionable even if Defendants’ motives had been impure. Plaintiff cannot establish a probability of success on the merits because he cannot show that Defendants sought to achieve a benefit totally extraneous to the litigation or a result not within its legitimate scope.? d. Plaintiffs claim is barred by the applicable statutes of limitation. For the reasons set forth in 2.b., infra, a claim for abuse of process brought against an attorney, as here, should be governed by the one-year limitations period of section 340.6(a) rather than the two- ear period of section 335.1. Plaintiff's claim accrued no later than July 5, 2017, when Defendants substituted out of the underlying action, but Plaintiff waited until January 18, 2019, to file his complaint, Because his claim is time-barred, Plaintiff cannot establish a probability of success on the merits. 2. Second Cause of Action: Malicious Prosecution Plaintiffs pleading is legally insufficient; he simply has not stated a claim for malicious prosecution, nor can he. Plaintiff must plead and prove that the prior action against him was (1) brought without probable cause, (2) initiated and/or prosecuted with malice, and (3) terminated in his favor. Crowley v. Katleman, 8 Cal. 4th 666, 676 (1994). Plaintiff cannot establish any of these elements. Moreover, Plaintiff's claim is time-barred. 3 Space does not permit itemizing all the misstatements in Plaintiff's Opposition, but a few must be noted, (1) Statements as to Mr. Cai’s state of mind sprinkled throughout the brief are pure speculation, and entirely false; Mr. Cai’s declaration refuted every allegation regarding malice, improper motive, etc. (2) Mr. Cai never reported Plaintiff to the State Bar, never threatened to report him, and is aware of no State Bar proceeding against Plaintiff. {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 620 21 22, 23 24 25 26 27 28 a. Plaintiff cannot establish favorable termination of the underlying action because it was resolved by settlement and mutual dismissals. In the FAC (at 25), Plaintiff alleges simply, “The lawsuit ended in JIANG’s favor.” This is not a statement of fact but rather a conclusion of law—i.e., Plaintiff is alleging the legal effect of the way the underlying action was resolved, rather than alleging what actually happened—and the Court is entitled to ignore the allegation. Piccinini v. Cal. Emergency Management Agency, 226 Cal. App. 4th 685, 688 (2014). The pleading is vague because the underlying action did not terminate in his favor; it was resolved with a written settlement agreement and mutual dismissals. Since the Court should not assume the truth of Plaintiff's ipse dixit, the FAC does not properly allege a favorable termination. Plaintiffs Opposition barely acknowledges that the dismissals were mutual and were the result of a written settlement agreement. Plaintiff's declaration states, “The action was eventually amicably resolved. On 03/29/2018, TX, XU and TENG dismissed their claims against me with prejudice.” Jiang Declaration at 10:7-8, { 18. Plaintiff's client’s declaration states, “The action was eventually settled. Due to the confidentiality term, I am not allowed to disclose the final settlement terms.” Declaration of Hansheng Ke at 5:9-10, § 14. The Opposition itself states, “The true result is that XU and TENG dismissed all claims against JING with prejudice. However, it was not a simple dismissal. The factors leading to the dismissal really matter, as they are the proof of JIANG’s innocence and the lack of merit of CAI’s action.” Opposition at 21:9-11. Plaintiff then states that “the dismissal was not a simple result from the settlement. Other key factors contributed to the settlement... .” Jd. at 21:15-16. Plaintiff does not identify or explain what any of these factors are. Defendants’ understanding was and is that the settlement agreement called for a mutual walk- away, and therefore issued a subpoena to obtain a copy of the agreement. In successfully moving to quash the subpoena, Plaintiff has acknowledged the existence of the settlement agreement. Its precise terms do not matter; the mere fact that the underlying action was concluded by settlement agreement and mutual dismissals is sufficient to defeat Plaintiff's claim of a favorable termination. “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable termination is normally not recognized.” Weaver v. Superior Court, 95 Cal. App. 3d 166, 184-85 (1979) (citations omitted); Siebel] y. Mittlesteadt, 41 Cal. 4th 735, 742 (2007) (“where both sides give up anything of value in order to {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 720 21 22 23 24 25 26 27 28 end the litigation, a party cannot later claim he received a favorable termination”). “[A] negotiated settlement not only creates an ambiguity as to the merits of the underlying action, it is entirely inconsistent with bringing a further lawsuit for malicious prosecution.” Jd. Plaintiff misconstrues the anti-SLAPP process, arguing that any conflicts in the evidence regarding favorable termination should be resolved by a jury. That is not how it works. This was the time for Plaintiff to come forward with evidence to establish his probability of success on the merits. If the settlement agreement in the underlying action would have established a favorable termination, Plaintiff should have produced it rather than preventing its production, and his client should have disclosed its contents rather than hide behind the confidentiality provision. Evidence Code sections 412 and 413 provide: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. [{] In determining what inferences to draw from the evidence or facts in the case against a] party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” Plaintiff cannot establish the element of favorable termination, and therefore cannot show a probability of success on his claim for malicious prosecution. b. Plaintiff has not properly pleaded, and cannot establish, that Defendants brought or maintained the underlying action with malice and without probable cause. Defendants’ Motion addressed this element in detail. Plaintiffs Opposition fails to address the issues raised, and certainly did not sustain his burden of establishing by competent evidence a probability of succeeding on the merits of this claim. Moreover, Judge Kirwan addressed the issue of malice at length in his ruling denying Plaintiffs motion for leave to conduct discovery. We ask that the Court take judicial notice of Judge Kirwan’s ruling, a true copy of which is appended to the Barnhorst Declaration. c. Plaintiff’s claim is time-barred. Connelly v. Bornstein, 33 Cal. App. 5 783 (2019), holds that a malicious prosecution action brought against an attorney is governed not by the two-year limit of CCP section 335.1 but rather by the more specific language of section 340.6(a), which establishes a one-year limitations period for an {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 812 13 4 17 18 19 20 21 22 23 24 25 26 27 28 action “against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.” The “performance of professional services” includes all claims arising from an attorney’s conduct qua attorney. See Connelly, 33 Cal. App. 5" at 793-98. Plaintiff argues that his harm is ongoing, and therefore his claim was timely filed; however, he alleged immediate harm, and his claim therefore accrued no later than July 5, 2017, when Defendants substituted out of the underlying action. Plaintiff waited until January 18, 2019, to file his complaint. Because his claim is time-barred, Plaintiff cannot establish a probability of success on the merits. 3. Third Cause of Action: Unfair Business Practice (B&P Code § 17200) Plaintiff essentially concedes that his claims are barred by the absolute litigation privilege of Civil Code section 47(b), again half-heartedly arguing (without support) that Defendants’ litigation tonduct “had no connection or logical relation to the action, and were not made to achieve the objects of| the litigation.” Opposition at 22:9-11. This is demonstrably false. Claims under 17200 are covered by Civil Code section 47(b). See, e.g., Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322 (2004); Feldman v. 1100 Park Lane Associates, 160 Cal. App. 4th 1467, 1478 (2008). The FAC alleges only that “Defendants’ conduct was unlawful and specifically violated the following provisions of the California Penal Code.” None of the separate counts has been properly pleaded, and Plaintiff has not sustained his burden of establishing by competent evidence a probability of succeeding on the merits of any of these claims. a. Penal Code § 118(a) As the Motion pointed out, this statute defines perjury, but Plaintiff alleged that Defendants’ clients, not Defendants themselves, committed perjury. Plaintiff now attempts to transform this claim into one for conspiracy to commit perjury, but that is impermissible; also, criminal conspiracy is separately addressed by Penal Code § 182 (see below). Defendants clearly did not commit perjury, and Plaintiff did not allege and has not established that they did. b. Penal Code § 127 In his Opposition, Plaintiff says only, “There was obviously a corrupt agreement between CAI and his clients.” He offers no evidence of this (Mr. Cai has already flatly denied any such agreement in| his declaration), and cites to no case construing the conduct alleged as constituting the subomation of {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 perjury. Plaintiff also fails to address Civil Code section 1714.10 (see Motion at p.21, n.17), which required Plaintiff to obtain leave of court before filing this claim. Because he did not, the claim is to be stricken. See generally Pavicich v. Santucci, 85 Cal. App. 4 382, 390-91 (2000). c. Penal Code § 182 Plaintiff conclusorily states that “CAI conspired with his clients to commit perjury... .” Opposition at 23:11. As with the alleged violation of section 127, he offers no evidence of this (again, Mr. Cai denies any such conspiracy), and Plaintiff cites to no case construing the conduct alleged as constituting a criminal conspiracy to commit perjury. Plaintiff again fails to address CC § 1714.10, which required Plaintiff to seek leave before filing this claim. Because he did not, it is to be stricken. d. Penal Code § 138 As was pointed out in the Motion, there is no allegation of bribery anywhere in the FAC. Plaintiff now improperly attempts to amend his pleading—both implicitly and explicitly; see {11 of the proposed Second Amended Complaint appended as Ex. 12 to Jiang’s declaration—to allege that Defendants attempted to bribe Plaintiff. As the Court will recall, Plaintiff just recently sought leave to file an amended pleading, and the Court quite properly denied his request. See, e.g., Dickinson v. Cosby, 17 Cal. App. 5th 655, 676-77 (2017). D. Defendants Are Entitled to Recover Their Reasonable Attorney’s Fees and Costs Incurred in Defending This Action and Bringing This Special Motion to Strike. Subsection (c)(1) of the anti-SLAPP statute states that a court shall award attorney’s fees and costs to a prevailing defendant. Plaintiff argues that Defendants are not entitled to recover fees here because they essentially have been representing themselves in that Mr. Barnhorst works at SAC. Trope’ y. Katz and its progeny do generally stand for the proposition that an attorney representing himself is not entitled to recover fees. But an entire line of cases recognizes that, when an attorney-client relationship actually exists, and when the fees are genuinely “incurred”—i.e., the defendants are genuinely obligated to pay them—then recovery is appropriate (whether under CCP § 425.16 or CC § 1717). See Witte v. Kaufman, 141 Cal. App. 4th 1201, 1207-08 (2006); Ramona Unified School District v. Tsiknas, 135 Cal. App. 4" 510, 524 (2005). And in PLCM Group, Inc. v. Drexler, 22 Cal. 4 1084, 1093 (2000), the court held that a corporation represented by in-house counsel is not self- {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] 1020 21 22 23 24 25 26 27 28 represented, and there was “no basis for discriminating between counsel working for a corporation in- house and private counsel engaged with respect to a specific matter or on retainer.” More to the point, the court in Gilbert v. Master Washer & Stamping Co., 87 Cal. App. 4" 212, 221 (2001), ruled that “a member of a law firm who is represented by other attorneys in the firm ‘incurs’ fees within the meaning of Civil Code section 1717.” Here, (1) although he works there, Mr. Barnhorst has no formal employment agreement with SAC; (2) he has entered into a formal retainer agreement with Defendants; (3) Mr. Barnhorst is identified as “general counsel” for the firm, representing its interests in collection matters and other litigation arising from the firm’s practice (cf. PLCM Group, Inc. v. Drexler, 22 Cal. 4 1084, 1093 (2000) (‘in-house counsel, like private counsel but unlike pro se litigants, do not represent their own personal interest and are not seeking remuneration simply for lost opportunity costs that could not be recouped by a nonlawyer”)); and (4) he was approved by Defendants’ insurer to represent them in this action. See the accompanying Barnhorst Declaration. A genuine attorney-client relationship exists between Barnhorst and Defendants, and Defendants have actually “incurred” attorney’s fees as that term was used in Trope and Witte. SAC is not some monolithic entity; it is an LLP of which Mr. Cai is the only partner. There is no risk spreading or burden sharing among partners. Mr. Cai is SAC. The focus of Plaintiffs ire is not SAC; it is Mr. Cai. He is the Mandarin-speaking attorney; he is the competitor of Plaintiff. Carpenter says that, “if the law firm and its partners or associates who acted on behalf of the firm are named and they are all represented by a partner or associate of the law firm, the principles of Trope and Witte should apply, unless it can be shown that the representation of partners or associates related to the protection of their individual interests from realistic personal exposure.” Carpenter at 387 (emphasis added). Here, it is Mr. Cai’s professional reputation and his personal assets that are at risk. An award Dated: June {7 2019 Attorneys for Defendants JAMES CAI and SAC ATTORNEYS LLP {SACATTY/32/3/00015551.DOC} REPLY MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE [CCP § 425.16] a]