Filed 10/30/20 BLT Communications, LLC v. LaMarche CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BLT COMMUNICATIONS, LLC, B302527
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19GDCV00245)
v.
JULIANNE LAMARCHE, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Ralph C. Hofer, Judge. Affirmed as modified.
Alpert, Barr & Grant, Adam D.H. Grant, Alexander S.
Kasendorf, Ryan T. Koczara; Law Offices of Jeffrey A. Slott and
Jeffrey A. Slott for Plaintiff and Appellant.
Law Offices of Collin Seals and Collin Seals for Defendants
and Respondents.
_______________________
Plaintiff BLT Communications, LLC (BLT) appeals the
trial court’s grant of the special motion to strike under section
425.16 of the Code of Civil Procedure (anti-SLAPP) filed by
defendants Julianne LaMarche and Richard Sankey. We have
jurisdiction under Code of Civil Procedure1 sections 425.16,
subdivision (i), and 904.1. We affirm as modified.
BACKGROUND
In its first amended complaint (FAC), BLT alleges that it
“is the largest entertainment marketing and media company in
the world.” LaMarche and Sankey were employed by BLT from
2012 until April 5, 2018, when BLT states that it terminated
them for cause.2 BLT alleges various categories of wrongdoing by
LaMarche and Sankey, most of which do not concern us on this
appeal. In the “Common Allegations” section of the FAC, BLT
alleges: “From in or about January 2017 through April 5, 2018,
[LaMarche and Sankey] absconded with dozens of documents
belonging to BLT including financial records, BLT’s confidential
books and records relating to its business operations, client lists,
employee information and other information relating to the
operation of the business of BLT, including the operation of the
department in BLT known as BLT+. Such documents are the
sole and exclusive property of BLT and [LaMarche and Sankey]
had no authorization, consent, or right to remove them from
1 Unless otherwise specified, all statutory references herein
are to the Code of Civil Procedure.
2 LaMarche and Sankey filed wrongful termination claims
against BLT concerning their discharge in a separate action.
Their action was deemed related and then consolidated with the
BLT action for all purposes.
2
BLT’s premises. The removal of such documents from the
premises of BLT without returning them after April 5, 2018, is a
breach of Exhibit ‘1’ attached hereto.” Exhibit 1, in turn, is
composed of two “Employee Confidentiality, Non-Disclosure and
Computer Software Security Agreement” forms bearing the
respective signatures of LaMarche and Sankey.
In the alleged fourth cause of action of the FAC, BLT
incorporates the above paragraph 24, then alleges in paragraph
45: “From on or about January 1, 2016 through April 5, 2018,
[LaMarche and Sankey], and each of them, breached the
aforesaid written agreements attached hereto Exhibit ‘1’ in the
following particulars: [¶] a. By filing a [c]omplaint in the
Superior Court of the State of California for the County of Los
Angeles as Case Number 19STCV08061 on or about March 7,
2019. Included in the [c]omplaint filed in the aforesaid legal
proceeding, [LaMarche and Sankey], and each of them, made
specific reference to and disclosed to the general public certain
[c]onfidential [i]nformation and [t]rade [s]ecrets specifically
referred to in Exhibit ‘1’ and which said [d]efendants were
obligated thereby to keep confidential. The [c]omplaint filed in
the aforesaid legal proceeding was not filed under seal and
therefore all of the [c]onfidential [i]nformation and aforesaid
[t]rade [s]ecrets have been publicly disclosed and disseminated in
breach of Exhibit ‘1’ including but not limited to BLT’s internal
procedures and policies, financial documents, legal claims,
marketing and development plans and related information; and
[¶] b. [LaMarche and Sankey], and each of them, have failed and
refused to turn over, deliver and relinquish to BLT all originals,
duplicates and copies of all tangible [c]onfidential [i]nformation
under the control of said [d]efendants who absconded with same
3
prior to termination of their employment on April 5, 2018; and [¶]
c. [LaMarche and Sankey], and each of them, have failed to hold
in confidence and keep confidential, without publication,
disclosure or dissemination [of] the aforesaid confidential
information belonging to BLT; and [¶] d. [LaMarche and Sankey],
and each of them, removed the aforesaid confidential information
from the premises of BLT without the express written
authorization and consent of an officer of BLT outside the
ordinary and authorized course of the business of BLT.” BLT
also alleged a fifth cause of action for “Breach of the Implied
Covenant of Good Faith and Fair Dealing.”
On July 26, 2019, LaMarche and Sankey filed a special
motion to strike under section 425.16 addressed to the fourth and
fifth alleged causes of action in BLT’s FAC. BLT opposed the
motion on August 19, 2019. LaMarche and Sankey filed a reply
brief on August 23, 2019.
The motion was heard on August 30, 2019. The trial court
granted the motion as to the alleged fourth cause of action in the
FAC, but denied it as to the alleged fifth cause of action. The
trial court struck the entire alleged fourth cause of action, and
awarded $8,737.50 in fees to LaMarche and Sankey as prevailing
moving parties, against a request for $14,275 in fees. This appeal
followed.3
3 LaMarche and Sankey have not cross-appealed the trial
court’s denial of their motion as to the alleged fifth cause of
action. Accordingly, the remainder of this opinion will address
only the alleged fourth cause of action for breach of contract.
4
DISCUSSION
BLT’s principal contention on appeal is that the trial
court’s order striking the entire alleged fourth cause of action was
overbroad, because even granting that the claim based on the
filing of a lawsuit by LaMarche and Sankey implicated protected
activity, the remainder of BLT’s claims in this cause of action did
not involve protected activity under the anti-SLAPP statute.
Accordingly, the trial court should have been more selective in
determining what should be stricken.
A. Applicable Law
The requirements for anti-SLAPP motions under section
425.16 are familiar. Section 425.16 provides, inter alia, that “[a]
cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Id., subd. (b)(1).) An “act . . .
in furtherance of [a] person’s right of petition or free speech . . . in
connection with a public issue” is defined in section 425.16 to
include, in relevant part: “any . . . 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.” (Id., subd. (e)(4).)
The Legislature enacted section 425.16 to prevent and
deter “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a).) Thus, the purpose of
the anti-SLAPP law is “not [to] insulate defendants from any
5
liability for claims arising from the protected rights of petition or
speech. It only provides a procedure for weeding out, at an early
stage, meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
When a party moves to strike a cause of action under the
anti-SLAPP law, a trial court evaluates the special motion to
strike using a two-prong test: (1) has the moving party “made a
threshold showing that the challenged cause of action arises from
protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056) and, if so, (2) has the non-moving party demonstrated that
the challenged cause of action has “ ‘minimal merit’ ” by making
“a prima facie factual showing sufficient to sustain” a judgment
in its favor. (Baral, supra, 1 Cal.5th at p. 385; Navellier v.
Sletten (2002) 29 Cal.4th 82, 93-94; see § 425.16, subd. (b)(1).)
After the first prong is satisfied by the moving party, the burden
shifts to the non-moving party “to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, supra, at p. 396.)
B. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park
v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1067.) “In other words, we employ the same two-
pronged procedure as the trial court in determining whether the
anti-SLAPP motion was properly granted.” (Mendoza v. ADP
Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644,
1652.)
As does the trial court, we “consider the pleadings, and
supporting and opposing affidavits stating the facts upon which
6
the liability or defense is based.” (§ 425.16, subd. (b)(2).) In
considering the pleadings and declarations, we do not make
credibility determinations or compare the weight of the evidence;
instead, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has
defeated the opposing party’s evidence as a matter of law.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3.)
C. Prong 1: Arising from Protected Activity
LaMarche and Sankey’s initial burden is to show that the
alleged fourth cause of action in BLT’s complaint arises from
protected activity on their part. (Park v. Board of Trustees of
California State University, supra, 2 Cal.5th at p. 1061.) In this
case the showing of protected activity is self-evident, as BLT
alleges in paragraph 45 of the FAC that LaMarche and Sankey
“breached the aforesaid written agreements attached hereto
Exhibit ‘1’ in the following particulars: [¶] a. By filing a
[c]omplaint in the Superior Court of the State of California for
the County of Los Angeles as Case Number 19STCV08061 on or
about March 7, 2019. . . .” A number of other allegations in this
paragraph and in incorporated paragraph 24 allege breach of
contract involving non-protected activity. However, we agree
with the trial court that LaMarche and Sankey satisfied the first
prong of analysis under section 425.16, because the filing and
prosecution of a civil action is recognized as a protected act under
section 425.16. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
D. Prong 2: Probability of Prevailing on the Merits
Satisfying the first prong shifts to the opposing party (BLT)
the burden of demonstrating merit in its alleged cause(s) of
7
action under the second prong. (Baral, supra, 1 Cal.5th at
p. 396.)
The second prong of the anti-SLAPP analysis requires BLT
to show a probability of prevailing on its alleged fourth cause of
action. The court ruling on such a motion does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether BLT has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment if the submitted evidence is credited. The
court accepts BLT’s evidence as true and evaluates LaMarche
and Sankey’s showing only to determine if it defeats BLT’s claim
as a matter of law. (Baral, supra, 1 Cal.5th at pp. 384-385;
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
“[A]t the second stage of an anti-SLAPP hearing, the court may
consider affidavits, declarations, and their equivalents if it is
reasonably possible the proffered evidence set out in those
statements will be admissible at trial.” (Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.)
Such a showing “must be based on admissible evidence.”
(Fashion 21 v. Coalition for Humane Immigrant Rights of Los
Angeles (2004) 117 Cal.App.4th 1138, 1147.) “[C]laims with the
requisite minimal merit may proceed.” (Navellier v. Sletten,
supra, 29 Cal.4th at p. 94.)
In this case, the showing made by BLT under the second
prong consisted only of a declaration from BLT counsel4 and
4 Asthe trial court noted, “[t]he declaration of counsel here
with respect to matters such as contract formation and plaintiff’s
performance are not matters of which counsel would have
personal knowledge, and none is established; in fact, counsel cites
to the FAC.”
8
references to the allegations of the unverified FAC, neither of
which constitute admissible evidence. We agree with the trial
court that this represented at best a “weak showing” that “fails to
establish by admissible evidence any probability of prevailing on
the cause of action.” We further agree with the trial court’s
conclusion that “the motion to strike should be granted.”
However, as discussed next, we part company with the trial court
as to the manner in which the motion to strike should be granted.
E. Disposition Where Cause of Action Involves Both
Protected and Unprotected Activity
Since the enactment of section 425.16, courts have
struggled with vexing questions arising when a special motion to
strike is addressed to a cause of action that contains allegations
of both protected and nonprotected activity. A sound guiding
principle is that “a plaintiff cannot frustrate the purposes of the
SLAPP statute through a pleading tactic of combining allegations
of protected and nonprotected activity under the label of one
‘cause of action.’ ” (Fox Searchlight Pictures, Inc. v. Paladino
(2001) 89 Cal.App.4th 294, 308, fn. omitted.) But that leaves
unresolved the question of how a cause of action that is based on
allegations of both protected and nonprotected conduct, thereby
presumptively satisfying prong one, should be treated in the
following steps of anti-SLAPP analysis.
In the present case, we have allegations of breach of
contract based on nonprotected activity, namely, the alleged
misappropriation of confidential information belonging to BLT in
violation of the written agreements attached as Exhibit 1 to the
complaint. We also have allegations that the defendants
breached their contracts by revealing confidential information in
a lawsuit they filed, the filing of which constitutes protected
9
activity under prong one of the anti-SLAPP statute. The
question is, what becomes of the cause of action that contains
both elements?
We believe that this question was answered
authoritatively, at least for a situation as clear-cut as the one
before us in this appeal, by the California Supreme Court’s
decision in Baral. The Baral court summarized the issue as
follows: “California’s anti-SLAPP statute provides that ‘[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 . . .
shall be subject to a special motion to strike, unless the court
determines . . . there is a probability that the plaintiff will prevail
on the claim.’ (Code Civ. Proc., § 425.16, subd. (b)(1).) This case
raises a question that has perplexed the Courts of Appeal: How
does the special motion to strike operate against a so-called
‘mixed cause of action’ that combines allegations of activity
protected by the statute with allegations of unprotected activity?
[¶] The difficulty arises from the statute’s use of the term ‘cause
of action,’ which has various meanings. It may refer to distinct
claims for relief as pleaded in a complaint. These are usually set
out as ‘first cause of action,’ ‘second cause of action,’ and so forth.
But the term may also refer generally to a legal claim possessed
by an injured person, without reference to any pleading. A
person may have a cause of action for defamation or breach of
contract even if no suit has been filed. . . .
“Typically, a pleaded cause of action states a legal ground
for recovery supported by specific allegations of conduct by the
defendant on which the plaintiff relies to establish a right to
relief. If the supporting allegations include conduct furthering
the defendant’s exercise of the constitutional rights of free speech
10
or petition, the pleaded cause of action ‘aris[es] from’ protected
activity, at least in part, and is subject to the special motion to
strike authorized by section 425.16[, subdivision ](b)(1). Some
courts, including the Court of Appeal in this case, have held that
the motion lies only to strike an entire count as pleaded in the
complaint. However, this rule leads to anomalous results when
the count is supported by allegations of unprotected activity as
well as protected activity. [¶] Viewing the term in its statutory
context, we conclude that the Legislature used ‘cause of action’ in
a particular way in section 425.16[, subdivision ](b)(1), targeting
only claims that are based on the conduct protected by the
statute. Section 425.16 is not concerned with how a complaint is
framed, or how the primary right theory might define a cause of
action. While an anti-SLAPP motion may challenge any claim for
relief founded on allegations of protected activity, it does not
reach claims based on unprotected activity.
“It follows that ‘mixed cause of action,’ the term frequently
used to designate a count alleging both protected and unprotected
activity, is not strictly accurate. Section 425.16[, subdivision
](b)(1) applies only to ‘causes of action’ that arise from allegations
of protected speech or petitioning. However, ‘mixed cause of
action’ is a term in common usage, and we sometimes employ it
for its customary purpose. We also sometimes use ‘cause of
action’ in its ordinary sense, to mean a count as pleaded. To
avoid confusion, we refer to the proper subject of a special motion
to strike as a ‘claim,’ a term that also appears in section 425.16[,
subdivision ](b)(1). [¶] The Court of Appeal . . . held that an anti-
SLAPP motion must be brought against a mixed cause of action
in its entirety. It affirmed the denial of defendant’s motion
because plaintiff established a probability of succeeding on claims
11
based on allegations of activity not protected by section 425.16.
This application of the anti-SLAPP statute unduly limits the
relief contemplated by the Legislature.” (Baral, supra, 1 Cal.5th
at pp. 381-382, fns. omitted.)
In Baral, the court was faced with the flip side of the
situation in the present case. The plaintiff in Baral had alleged
various claims against the defendant, some of which were
deemed to be protected conduct under prong one of the anti-
SLAPP statute. The plaintiff responded with a showing of merit
under prong two that demonstrated a sufficient probability of
success with respect to the nonprotected conduct. This court held
that this showing of merit compelled the denial of the anti-
SLAPP motion, because at least some part of the challenged
causes of action had sufficient merit.
The California Supreme Court rejected this result. After
an extensive review of the Court of Appeal cases that had
wrestled with anti-SLAPP motions in the “mixed” (protected and
nonprotected) context, the court concluded: “The anti-SLAPP
procedures are designed to shield a defendant’s constitutionally
protected conduct from the undue burden of frivolous litigation.
It follows, then, that courts may rule on plaintiffs’ specific claims
of protected activity, rather than reward artful pleading by
ignoring such claims if they are mixed with assertions of
unprotected activity.” (Baral, supra, 1 Cal.5th at p. 393.)
The Baral court quoted with approval the following
observations from Cho v. Chang (2013) 219 Cal.App.4th 521, 527:
“ ‘It would make little sense if the anti-SLAPP law could be
defeated by a pleading, such as the one in this case, in which
several claims are combined into a single cause of action, [with
some claims] alleging protected activity and some not. Striking
12
the entire cause of action would plainly be inconsistent with the
purposes of the statute. Striking the claims that invoke protected
activity but allowing those alleging nonprotected activity to
remain would defeat none of them. Doing so also is consonant
with the historic effect of a motion to strike: “to reach certain
kinds of defects in a pleading that are not subject to demurrer.”
(See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008,
p. 420.)’ ” (Baral, supra, 1 Cal.5th at p. 388.)
The Baral court declared: “[I]t is not the general rule that
a plaintiff may defeat an anti-SLAPP motion by establishing a
probability of prevailing on any part of a pleaded cause of action.
Rather, the plaintiff must make the requisite showing as to each
challenged claim that is based on allegations of protected activity.
How the plaintiff does that will vary from case to case, depending
on the nature of the complaint and the thrust of the motion. But
when the defendant seeks to strike particular claims supported
by allegations of protected activity that appear alongside other
claims within a single cause of action, the motion cannot be
defeated by showing a likelihood of success on the claims arising
from unprotected activity.” (Baral, supra, 1 Cal.5th at p. 392.)
Most significantly for our purposes in this appeal, the
Baral court held that “the Legislature’s choice of the term ‘motion
to strike’ reflects the understanding that an anti-SLAPP motion,
like a conventional motion to strike, may be used to attack parts
of a count as pleaded.” (Baral, supra, 1 Cal.5th at p. 393, italics
added.) Accordingly, as the court summarized its holdings, “If
the court determines that relief is sought based on allegations
arising from activity protected by the statute, the second step is
reached. There, the burden shifts to the plaintiff to demonstrate
that each challenged claim based on protected activity is legally
13
sufficient and factually substantiated. The court, without
resolving evidentiary conflicts, must determine whether the
plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. If not, the claim is
stricken. Allegations of protected activity supporting the stricken
claim are eliminated from the complaint, unless they also support
a distinct claim on which the plaintiff has shown a probability of
prevailing.” (Baral, supra, at p. 396, italics added.)
We conclude from Baral that the trial court in this instance
cut too broad a swath through BLT’s complaint by striking the
entire fourth cause of action. The allegations of protected activity
in paragraph 45, subparagraph (a), were discrete and easily
identified as such. The remainder of the alleged fourth cause of
action did not depend on the presence of these allegations.
Accordingly, BLT was not required, at this early stage, to
demonstrate merit in its claims involving nonprotected activity.
Baral counsels that the trial court, in granting the anti-SLAPP
motion, should have stricken the allegations of protected activity,
but allowed the remaining allegations, involving nonprotected
activity to stand.5 Thus we affirm the granting of the anti-
5 We distinguish the situation in the instant case from the
situations present in such cases as Optional Capital, Inc. v. Akin
Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95 and
Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th
574, where the distinction between protected and nonprotected
allegations was far less clear-cut than here and, accordingly, we
analyzed the “gravamen” or “principal thrust” of each cause of
action to determine whether the cause of action should be
stricken. In Okorie, we were faced with the moving parties’
failure to identify any particular allegation describing protected
conduct; instead, we had to analyze a general request to strike
14
SLAPP motion but will direct that a modified order striking only
the allegations of protected activity should be entered.
F. Attorneys’ Fees
Section 425.16, subdivision (c)(1), provides in pertinent part
that “a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs.” Here, the
trial court awarded to LaMarche and Sankey fees and costs of
$8,737.50, an amount less than the $14,275 requested. BLT
asserts that we should direct the trial court to reevaluate this
the entire complaint based on “ ‘the gravamen of the complaint.’ ”
(Okorie, supra, at p. 589.) It is this context in which we observed,
“Baral did not say that a special motion to strike must always be
limited to challenges within a pleaded count.” (Ibid., italics
added.) Such an approach would present difficult challenges, we
further observed, “where the plaintiff’s protected and unprotected
claims . . . are not well delineated and are even enmeshed one
within another.” (Ibid.) In Optional Capital, the moving
defendants were law firms and all of the alleged conduct was
covered by the litigation privilege. (Optional Capital, supra, at
pp. 144-115.)
Here, unlike in Okorie and Optional Capital, the
allegations of protected activity are well delineated. LaMarche
and Sankey based their motion on one subparagraph in
paragraph 45, which allegation can readily be distinguished from
other allegations in the FAC. In this circumstance, the approach
endorsed by Baral, which reaches specific allegations of protected
activity without sweeping in allegations of unprotected activity,
is more faithful to the stated purpose of the anti-SLAPP statute
to deter litigation brought “primarily to chill the valid exercise of
the constitutional rights of freedom of speech and petition.”
(§ 425.16, subd. (a).)
15
award of attorneys’ fees and costs to the extent that any part of
the alleged fourth cause of action is restored on appeal.
We review an order on a request for attorney fees under
section 425.16 for abuse of discretion. (Gerbosi v. Gaims, Weil,
West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.) “A ruling
amounts to an abuse of discretion when it exceeds the bounds of
reason, and the burden is on the party complaining to establish
that discretion was abused.” (Ibid.)
In this case, LaMarche and Sankey remain the prevailing
parties on the special motion to strike, and we see no ground to
disturb the trial court’s award of fees and costs.
DISPOSITION
The order of August 30, 2019, granting the special motion
to strike, is modified to strike from the first amended complaint
the allegations appearing on page 26, lines 11 to 26, referring to
the filing of a civil complaint by LaMarche and Sankey, but
otherwise leaving the remaining allegations of the alleged fourth
cause of action intact. As so modified, the order is affirmed. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J. CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
16