Filed 7/28/21 Ghafoori v. Advance Occupational and Hand Therapy Center CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
WAJIA GHAFOORI,
Plaintiff and Respondent, G059486
v. (Super. Ct. No. 30-2019-01117435)
ADVANCE OCCUPATIONAL AND OPINION
HAND THERAPY CENTER,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Layne H.
Melzer, Judge. Reversed and remanded with directions.
Anderson, McPharlin & Conners and Elmira R. Howard for Defendant and
Appellant.
Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiff and
Respondent.
* * *
INTRODUCTION
After losing her first case against Advance Occupational and Hand Therapy
Clinic (Advance), Wajia Ghafoori filed another case against Advance, seeking indemnity
from Advance based on the same facts in the first case, and seeking recovery of the
attorney fees and costs Ghafoori incurred in that case. Advance filed a special motion to
1
strike the second case under Code of Civil Procedure section 425.16 (the anti-SLAPP
motion) (all further statutory references are to the Code of Civil Procedure). The trial
court denied the anti-SLAPP motion. We reverse and remand with directions to the trial
court to grant the motion.
First, Ghafoori’s complaint in the present case arises directly from
Advance’s protected petitioning activity, because the petitioning activity—the
cross-claim Advance filed against Ghafoori in the first case—is itself the wrong
complained of, and not just evidence of liability or a step leading to some different act for
which liability is asserted.
Second, Ghafoori failed to establish her claims in the second case have at
least minimal merit.
STATEMENT OF FACTS
The following summary of the facts is drawn from our unpublished opinion
Ghafoori v. Rezaei, June 10, 2021, G058984:
“Advance is a physical therapy and occupational therapy clinic. Rezaei is a
physical therapist employed by Advance. Ghafoori received physical therapy treatments
at Advance from May through June and September through November 2014. This case
does not involve any allegations of negligent treatment by Advance or any of its
employees.
1
SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2
“On September 25, 2014, Ghafoori was involved in an automobile accident.
Attorney Plummer and Plummer Law represented Ghafoori in a lawsuit arising out of
that accident.
“The medical lien, which was signed by Ghafoori on November 19, 2014,
reads in relevant part as follows: ‘I hereby authorize and direct you, my attorney, to pay
directly to [Advance] such sums as may be due and owing him for medical services
rendered me by reason of this accident and by reason of any other bills that are due his
office and withhold such sums from any settlement, judgment or verdict as may be
necessary to adequately protect [Advance]. And I hereby further give a lien on my case
to [Advance] against any and all proceeds of any settlement, judgment [or] verdict which
nay be paid to you, my attorney, or myself as the result of the injuries for which I have
been treated or injuries in connection therewith. [¶] I fully understand that I am directly
and fully responsible to [Advance] for all medical bills submitted by him for service
rendered me and that this agreement is made solely for [Advance]’s additional protection
and in consideration of his awaiting payment. And I further understand that such
payment is not contingent on any settlement, judgment or verdict by which I may
eventually recover said fee.’ Plummer Law, by signing the lien on November 20, 2014,
agreed to observe all of its terms and to withhold from any settlement or judgment the
money necessary to reimburse Advance.
“Between December 2014 and March 2015, Advance provided Ghafoori
with 24 physical therapy sessions with a reasonable value of $5,300, and 20 occupational
therapy sessions with a reasonable value of $5,900. Advance provided copies of its bills
and Ghafoori’s medical records to Plummer Law.
“Plummer Law, on behalf of Ghafoori, made a $52,362.80 settlement
demand on State Farm Mutual Auto Insurance Co. (State Farm), the insurance carrier for
the other driver involved in the accident, to settle Ghafoori’s personal injury claims. The
demand letter represented to State Farm that Ghafoori had incurred $11,200 in medical
3
expenses owed to Advance for physical therapy and occupational therapy. State Farm
and Ghafoori settled the claim for $27,100. None of the settlement proceeds was paid to
Advance.
“After Rezaei, on behalf of Advance, asked Attorney Plummer whether
Ghafoori’s case had been settled, ‘Plummer became agitated and started yelling at me
telling me that I did not have a medical lien and that he and his client had no obligation to
pay Advance for the treatments.’ Advance responded by filing a complaint against
Attorney Plummer and Plummer Law with the California State Bar.
“Ghafoori and Plummer Law filed a complaint against Rezaei and
Advance; Ghafoori and Plummer Law asserted a claim for rescission of the medical lien,
and Ghafoori asserted claims for fraud and unfair business practices. Advance filed a
cross-complaint against Ghafoori, Attorney Plummer, and Plummer Law for breach of
the medical lien, unfair business practices, breach of an implied contract, quantum
meruit, and money had and received.
“Rezaei filed a motion for summary judgment and/or summary adjudication
of the complaint, and Advance filed a similar motion for summary judgment and/or
summary adjudication of the complaint and the cross-complaint. The trial court
(1) granted Rezaei’s motion for summary judgment, (2) granted Advance’s motion for
summary adjudication of all issues on the complaint, and (3) denied Advance’s motion
for summary adjudication on the cross-complaint.
“On February 3, 2020, a judgment was entered in favor of Rezaei and
against Ghafoori and Plummer Law (the February 3 judgment). No appeal has ever been
taken from the February 3 judgment.
“Advance, Ghafoori, Plummer Law, and Attorney Plummer stipulated in
writing for entry of judgment in favor of Advance on Advance’s cross-complaint. The
trial court approved the stipulation, and judgment based on it was entered. On March 3,
2020, an amended judgment was entered against Ghafoori and Plummer Law and in favor
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of Advance on the complaint, and in favor of Advance and against Ghafoori, Plummer
Law, and Attorney Plummer on the cross-complaint (the March 3 judgment).
“On March 12, 2020, Ghafoori and Plummer Law filed a notice of appeal
from the March 3 judgment. Attorney Plummer did not file a notice of appeal.”
(Ghafoori v. Rezaei, supra, G058984.)
PROCEDURAL HISTORY
A hearing on the summary judgment motion in the underlying case was
conducted on November 18, 2019. Although the tentative ruling does not appear in the
appellate record, the transcript of the hearing makes clear that the tentative was to grant
the motion as to the mediation privilege.
On December 10, 2019, while the ruling on the summary judgment in the
underlying case was pending, Ghafoori sued Advance in the present case for indemnity
and declaratory relief. On February 14, 2020, Advance filed the anti-SLAPP motion
pursuant to section 425.16. After briefing and a hearing, the trial court denied the
anti-SLAPP motion on the ground that Ghafoori’s complaint did not arise out of
protected activity. Advance timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
“Review of an order granting or denying a motion to strike under
section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and
opposing affidavits . . . upon which the liability or defense is based.’ [Citation.]
However, we neither ‘weigh credibility [nor] compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate
the defendant’s evidence only to determine if it has defeated that submitted by the
plaintiff as a matter of law.’” (Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 269, fn. 3.)
5
II.
BURDENS OF PROOF
“Anti-SLAPP motions are evaluated through a two-step process. Initially,
the moving defendant bears the burden of establishing that the challenged allegations or
claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.]
If the defendant carries its burden, the plaintiff must then demonstrate its claims have at
least ‘minimal merit.’ [Citations.]” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).)
“[A] claim is not subject to a motion to strike simply because it contests an
action or decision that was arrived at following speech or petitioning activity, or that was
thereafter communicated by means of speech or petitioning activity. Rather, a claim may
be struck only if the speech or petitioning activity itself is the wrong complained of, and
not just evidence of liability or a step leading to some different act for which liability is
asserted.” (Park, supra, 2 Cal.5th at p. 1060.)
“A claim arises from protected activity when that activity underlies or
forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in furtherance of the right of
petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after
protected activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute.’ [Citation.] Instead, the focus is on determining
what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only
means specified in section 425.16 by which a moving defendant can satisfy the [“arising
from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff
claims to have been injured falls within one of the four categories described in
subdivision (e) . . . .’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what actions by the defendant
6
supply those elements and consequently form the basis for liability.” (Park, supra,
2
2 Cal.5th at pp. 1062-1063.)
What is the conduct of Advance by which Ghafoori claims to have been
injured? In the complaint, Ghafoori seeks express contractual indemnity “for any and all
damages and injuries resulting from Advance[’]s claim against her for $11,200.00 for
‘Covered Services’ . . . pursuant to . . . the ancillary services contract” between
CalOptima and Advance. (Italics added.) Advance contends that the alleged wrongful
conduct is its filing of a cross-complaint against Ghafoori to collect on the medical lien,
which is a protected activity.
II.
GHAFOORI’S COMPLAINT ARISES FROM ADVANCE’S PROTECTED PETITIONING ACTIVITY
As the first part of the two-step process, we address whether the
complained-of acts in Ghafoori’s complaint arise out of protected activity. Several recent
appellate opinions have addressed situations where a plaintiff seeks indemnity, but where
the action complained of is protected activity. We apply and follow Moss Bros. Toy, Inc.
v. Ruiz (2018) 27 Cal.App.5th 424 (Moss Brothers), C.W. Howe Partners, Inc. v.
Mooradian (2019) 43 Cal.App.5th 688 (C.W. Howe), Wong v. Wong (2019)
43 Cal.App.5th 358 (Wong), and Long Beach Unified School Dist. v. Margaret Williams,
LLC (2019) 43 Cal.App.5th 87 (Williams) and conclude that, here, the conduct
complained of is Advance’s filing of the cross-complaint in the underlying lawsuit, which
is an act in furtherance of Advance’s right of petition or free speech. (§ 425.16,
subd. (b).) We now survey and apply those cases.
2
Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson) applied Park’s
analysis in the context of a complaint for employment discrimination and retaliation.
7
A.
RELEVANT CASE LAW
1. Moss Brothers
In Moss Brothers, supra, 27 Cal.App.5th 424, Moss Brothers (the
employer) sued its former employee for filing a lawsuit against Moss Brothers’ local
agent rather than submitting his employment-related claims to arbitration, as required by
an employment arbitration agreement. (Id. at p. 427.) The trial court granted the
employee’s anti-SLAPP motion. The employer argued on appeal that the underlying
action was based on the employee’s breach of the arbitration agreement, not on alleged
protected activity. (Ibid.) The appellate court affirmed the judgment in favor of the
employee, concluding that the employer’s lawsuit was based on the employee’s action of
filing a lawsuit against the employer’s agent, even though the employer’s lawsuit also
purported to be based on the employee’s breach of the arbitration agreement. (Ibid.)
The appellate court concluded that the employer’s lawsuit was based
entirely on the employee’s protected act of filing the complaint against the employer’s
local agent, an act in furtherance of the employee’s right of petition. (Moss Brothers,
supra, 27 Cal.App.5th at p. 434.) The court noted that the employer’s complaint alleged
the employee had breached his employment contract by filing his own complaint, the
employer could be liable for the acts of its agent in the underlying litigation, the
employer’s lawsuit sought damages due to its liability and attorney fees and costs
incurred in the underlying litigation, and the employer’s lawsuit sought specific
performance of the arbitration agreement. (Ibid.) The court also noted that “‘[b]ut for’”
the employee’s protected action of filing a complaint, the employer’s lawsuit against the
employee for breach of contract “‘would have no factual basis’” and the employer would
not have incurred any of the damages it was seeking. (Id. at p. 435.) The fact that the
employer’s lawsuit was based on the employee’s alleged breach of contract for failure to
pursue arbitration did not mean it was not also based on the employee’s protected right of
8
petition. (Id. at pp. 435-436; see Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92
(Navellier).)
The Moss Brothers court further explained that its conclusion was
consistent with the Supreme Court’s elements-based analysis in Park, supra,
2 Cal.5th 1057 because: (1) the employer’s lawsuit was based on the employee’s
“protected act of filing the complaint” against the employer’s agent because the
employee’s act of filing his complaint constituted the entire basis of the employer’s
singular breach of contract claim; (2) the employee’s act of filing his complaint did more
than merely provide evidentiary support for the employer’s breach of contract claim; and
(3) the employee’s “protected act of filing the complaint . . . constitutes the ‘“conduct by
which [the employer] claims to have been injured.”’” (Moss Brothers, supra,
3
27 Cal.App.5th at p. 439.)
2. C.W. Howe
In C.W. Howe, supra, 43 Cal.App.5th 688, Howe provided structural
engineering services to the homeowners, the Mooradians, pursuant to a written contract
that included an indemnity provision. (Id. at pp. 692-693.) The Mooradians sued Howe
and others for, inter alia, fraud and negligent breach of contract. (Id. at p. 694.) Howe
filed a cross-complaint against the Mooradians for indemnity. (Id. at p. 695.) The
Mooradians responded with an anti-SLAPP motion (id. at p. 696), which the trial court
denied (id. at p. 697).
The appellate court affirmed, concluding that the indemnity
cross-complaint did not arise from the Mooradians’ petitioning activity. The court
reasoned:
3
The trial court did not cite Moss Brothers, supra, 27 Cal.App.5th 424, in its minute
order denying the anti-SLAPP motion, as neither party cited that case in their motion
papers in the trial court.
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“[A] cause of action arising from the defendant’s . . . litigation activity
directly implicates the right to petition and is subject to a special motion to strike. . . . [¶]
But to satisfy the first prong, the Mooradians had to establish the Howes’ causes of action
‘arise from’ the Mooradians’ litigation activity; and they misunderstand the analysis
employed to determine whether a claim arises from protected conduct. The ‘elements’
analysis as articulated by the Supreme Court in Park, supra, 2 Cal.5th at page 1063 and
adopted in Wilson, supra, 7 Cal.5th at page 884 does not mean any allegation of protected
activity supporting an element of a cause of action subjects that cause of action to a
challenge under section 425.16. Courts should only consider the elements of the
challenged cause of action as part of an analysis to determine what actions by the
defendant form the basis for liability. As cautioned by the Park court, in the first step of
the anti-SLAPP analysis, care must be taken ‘to respect the distinction between activities
that form the basis for a claim and those that merely lead to the liability-creating activity
or provide evidentiary support for the claim.’ [Citation.] As discussed, the Supreme
Court in both Park and Wilson made clear ‘the speech or petitioning activity itself’ must
constitute ‘the wrong complained of.’ [Citations.]
“The filing of the Mooradians’ first amended complaint is not the wrongful
act forming the basis for the Mooradians’ liability as alleged in the Howes’ cross-claims.
Rather, the alleged wrongful act that forms the basis for the express indemnity cause of
action is the Mooradians’ failure to indemnify, defend and hold harmless the Howes in
breach of section 4(b) of the Howe agreement, including to indemnify the Howes from
any liability arising from the use of the EPS panels selected by the Mooradians or the
Mooradians’ representative Minarc.” (C.W. Howe, supra, 43 Cal.App.5th at
pp. 700-701.)
The court in C.W. Howe distinguished the Supreme Court’s opinion in
Navellier and the Court of Appeal’s opinion in Moss Brothers:
10
“Navellier, supra, 29 Cal.4th 82 illustrates the difference. In Navellier the
Supreme Court held a claim for breach of a release clause in a contract was subject to
section 425.16 because the alleged breach consisted of asserting claims in litigation (in a
counterclaim in a federal lawsuit that had been initiated prior to the release agreement)
that had purportedly been released under the contract: ‘In alleging breach of contract,
plaintiffs complain about Sletten’s having filed counterclaims in the federal action.
Sletten, plaintiffs argue, “counterclaimed for damages to recover money for the very
claim he had agreed to release a year earlier” and “was sued for that act.”’ [Citations.]
“Similarly, in Moss [Brothers, supra,] 27 Cal.App.5th 424 the petitioning
activity itself constituted the alleged breach. In that case an employer filed a breach of
contract action against an employee alleging the employee had breached two arbitration
agreements by failing to submit his employment-related disputes to arbitration, instead
filing a putative class action complaint in superior court against the employer. The trial
court granted the employee’s special motion to strike. [Citation.] In affirming, the Court
of Appeal relied, among other cases, on Vivian v. Labrucherie (2013) 214 Cal.App.4th
267, where a motion pursuant to section 425.16 successfully challenged a breach of
contract action that had alleged protected activity constituted the breach: ‘There, the
plaintiff’s breach of contract claims were based on the defendant’s protected activity of
making statements to internal affairs investigators and in family court papers . . . .
Because the plaintiff was seeking to impose liability on the defendant for her acts of
making protected statements, the plaintiff’s action was based on protected activity.’
[Citation.] Unlike the plaintiffs in Navellier and Moss [Brothers], the Howes did not
allege in their cross-complaint that by filing their lawsuit the Mooradians had breached
the Howe agreement or otherwise engaged in wrongful activity.” (C.W. Howe, supra, 43
Cal.App.5th at pp. 701-702.)
11
3. Wong
In Wong, supra, 43 Cal.App.5th 358, the marital settlement agreement
between Wong and Tang provided that Wong would transfer to Tang his ownership in an
entity owning commercial property and would indemnify Tang for “‘any liabilities
attendant thereto.’” (Id. at p. 361.) The marital settlement agreement also provided that
if either party had incurred an undisclosed liability, that party would indemnify the other
for the obligation, costs and attorney fees. (Ibid.) After both parties to the marital
settlement agreement died, the commercial property entity had to pay off a $5 million
promissory note. (Id. at p. 362.) The commercial property entity sued Wong’s estate to
recoup the $5 million (the Asian Square litigation), and Wong’s estate filed a separate
lawsuit against Tang’s estate for breach of contract and express and equitable indemnity
to require Tang’s estate to indemnify Wong’s estate for the costs and liabilities in the
Asian Square litigation. (Ibid.) Tang’s estate filed an anti-SLAPP motion, claiming that
as the holder of the controlling interest in the commercial property entity, it had directed
and funded the Asian Square litigation, meaning the indemnity litigation by Wong’s
estate was based on the Tang estate’s protected petitioning activity. (Ibid.) The trial
court denied the anti-SLAPP motion. (Id. at pp. 362-363.)
The appellate court affirmed. “The Tang Estate has not been sued for
pursuing the Asian Square litigation but for breaching its obligation to indemnify the
Wong Estate for expenses incurred in that litigation.” (Wong, supra, 43 Cal.App.5th at
p. 365.)
4. Williams
In Williams, supra, 43 Cal.App.5th 87, Williams and the school district
entered an agreement under which Williams performed construction management and
environmental compliance consulting work. (Id. at p. 92.) The agreement contained a
provision by which Williams agreed to indemnify and hold harmless the school district.
(Id. at pp. 94-95.) After the school district terminated the agreement, Williams sued the
12
district for retaliatory termination, breach of contract, and negligence. (Id. at p. 94.) The
school district tendered the defense of the complaint to Williams; when she ignored the
tender, the school district field a cross-complaint for indemnity and breach of contract.
(Id. at p. 95.) Williams then filed an anti-SLAPP motion, arguing that the school
district’s cross-claims arose from her protected activity of filing the complaint. (Ibid.)
4
The trial court granted the motion, and the appellate court affirmed. (Id. at p. 96.)
The appellate court concluded that the cross-claims arose from the
complaint, which was protected activity. (Williams, supra, 43 Cal.App.5th at p. 97.)
Even under the school district’s argument that the cross-claims arose from Williams’s
refusal to defend and indemnify the district under the terms of the agreement, the
appellate court concluded that the claims would still have arisen under protected activity:
“A refusal to fund the defense of one’s own litigation—and the defense of a co-plaintiff’s
claims arising from the same facts—is conduct in furtherance of the litigation.” (Id. at
p. 99.)
Williams distinguishes C.W. Howe and Wong thus:
“Neither C.W. Howe[, supra,] 43 Cal.App.5th 688 nor Wong[, supra,] 43
Cal.App.5th 358 calls for a different conclusion. The C.W. Howe court, disagreeing with
our analysis of the first ground for our first-step holding, rejected indemnitors’ contention
that cross-claims seeking defense and indemnity in the indemnitors’ litigation arose from
that underlying litigation. [Citation.] But the court proceeded to expressly distinguish its
opinion from ours on the second ground for our first-step holding, viz., our conclusion
that Williams LLC’s refusal to defend and indemnify the District—from which the
District’s crossclaims concededly arose—was protected conduct in furtherance of
petitioning activity in connection with an issue of public interest. [Citation.]
4
Although the Williams court does not cite Park, it cites and relies on Wilson, supra,
7 Cal.5th 871, which uses the same elements-based analysis as Park.
13
“Wong is distinguishable for the same reason. The indemnitor there could
not claim an issue of public interest was at stake in the underlying litigation, in which a
corporation that owns and operates a shopping mall sought recovery of allegedly
misappropriated loan proceeds from the estate of a former shareholder. [Citation.] In
any event, the Wong court did not address whether the indemnitor’s refusal to indemnify
the indemnitee was protected conduct in furtherance of petitioning activity in connection
with an issue of public interest. [Citation.] Thus, Wong is not authority on that issue.
[Citation.]” (Williams, supra, 43 Cal.App.5th at p. 100, fn. 7.)
B.
UNDER THE FOREGOING AUTHORITIES, WE CONCLUDE GHAFOORI’S COMPLAINT ARISES OUT
OF ADVANCE’S PROTECTED PETITIONING ACTIVITY
In the present case, we conclude that the conduct of Advance by which
Ghafoori claims to have been injured is Advance’s filing of a cross-complaint in the
underlying action. (Park, supra, 2 Cal.5th at p. 1063.) Ghafoori’s complaint in this case
seeks as damages “complete indemnity for any and all damages and injuries resulting
from [Advance’s] claim against her for $11,200.00 for ‘Covered Services’, which had
been provided in 2014 and 2015, to [Ghafoori].” Ghafoori also sought a declaration that
Advance was “obligated to indemnify and hold [Ghafoori] harmless from all injuries and
damages resulting from [Advance’s] claim against her for $11,200.00.” Although the
complaint attempts to focus on Advance’s failure to comply with the ancillary services
agreement between Advance and CalOptima, the “claim against her for $11,200.00” is
Advance’s cross-claim in the underlying litigation. That cross-complaint sought damages
of $11,200. In this case, we follow and apply Moss Brothers, Williams, and Navellier. In
the present case, the petitioning activity itself constituted the alleged breach of the
ancillary services agreement alleged in Ghafoori’s complaint. Advance therefore
established the first prong of the anti-SLAPP test.
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III.
GHAFOORI FAILED TO ESTABLISH A PROBABILITY OF PREVAILING ON THE MERITS
At the second step of the anti-SLAPP analysis, “the burden shifts to the
plaintiff to demonstrate that each challenged claim based on protected activity is legally
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.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.) At this step, the plaintiff must establish the claims based on
allegations of protected activity are legally sufficient and supported by a prima facie
showing of facts, which, if proved at trial, would support a judgment in the plaintiff’s
favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) To meet this burden, the
plaintiff must present admissible evidence. (Optional Capital, Inc. v. Akin Gump Strauss,
Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112.)
A.
GHAFOORI’S EVIDENCE OF LIKELIHOOD OF PREVAILING ON THE MERITS OF HER CLAIM
In opposition to the anti-SLAPP motion, Ghafoori offered admissible
evidence of the following: (1) Ghafoori was a Medi-Cal/CalOptima member at all
relevant times; (2) Ghafoori had been receiving covered services from Advance before
her automobile accident; (3) Ghafoori continued receiving covered services from
Advance after her automobile accident; (4) Advance presented Ghafoori with a medical
15
lien, which both Ghafoori and her counsel signed; (5) Advance did not bill
5
Medi-Cal/CalOptima for services provided to Ghafoori after she signed the medical lien.
B.
GHAFOORI’S CLAIM WILL BE BARRED BY THE RULE AGAINST SPLITTING CLAIMS
Assuming the truth of all of Ghafoori’s evidence, we must nevertheless
conclude that Ghafoori has failed to establish that her claims have at least minimal merit.
In Ghafoori v. Rezaei, supra, G058984, we concluded that the trial court properly granted
summary judgment as to Ghafoori’s claims against Advance and Rezaei arising out of the
services provided to Ghafoori by Advance after Ghafoori’s automobile accident. The
present lawsuit involves further claims by Ghafoori against Advance arising out of the
services provided to Ghafoori by Advance after Ghafoori’s automobile accident.
“It is clearly established that a party may not split up a single cause of
action and make it the basis of separate suits, and in such case the first action may be
pleaded in abatement of any subsequent suit on the same claim. [Citations.] The rule
against splitting a cause of action is based upon two reasons: (1) That the defendant
should be protected against vexatious litigation; and (2) that it is against public policy to
permit litigants to consume the time of the courts by relitigating matters already judicially
determined, or by asserting claims which properly should have been settled in some prior
action.” (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895.)
The rule against splitting causes of action bars claims in a second action
seeking a different remedy for the same injury alleged in the first action. (Mycogen
5
Ghafoori also offered the fact that Advance billed her directly for the services provided,
and that Ghafoori owed nothing on the medical lien, pursuant to Parnell v. Adventist
Health System/West (2005) 35 Cal.4th 595. Although on an anti-SLAPP motion the court
does not weigh the evidence, these facts have been determined against Ghafoori in our
unpublished opinion Ghafoori v. Rezaei, supra, G058984, and are therefore the law of the
case. The ancillary services agreement and the medical lien speak for themselves; we are
not required to place on them the meanings ascribed by Ghafoori.
16
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) Under California’s primary rights
theory, “the invasion of one primary right gives rise to a single cause of action.” (Slater
v. Blackwood (1975) 15 Cal.3d 791, 795.) And a cause of action “is based upon the harm
suffered, as opposed to the particular theory asserted by the litigant.” (Ibid.)
Here, judgment was entered against Ghafoori in the underlying action and
the trial court expressly ruled that by signing the medical lien, Ghafoori had elected to be
treated outside of her insurance. The trial court rejected Ghafoori’s argument that the
ancillary services agreement between Advance and CalOptima prevented Advance from
recovering under the medical lien. The trial court also found that Ghafoori’s claimed
belief that Advance would bill and be paid by CalOptima for the physical therapy and
occupational therapy services she received was not supported by the evidence or the
express language of the medical lien. This court recently affirmed that judgment. The
complaint filed by Ghafoori in the present action is barred, and Ghafoori therefore cannot
establish any likelihood of prevailing on her lawsuit.
DISPOSITION
The order denying the anti-SLAPP motion is reversed. We remand to the
trial court with directions to grant the motion. Appellant to recover costs on appeal.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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