Filed 2/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
RICHARD PECH, B309781
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV18681)
STEPHEN M. DONIGER, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Elaine Lu, Judge. Affirmed.
Richard Pech, in pro. per., for Plaintiff and Appellant.
Blakely Law Group and Brent H. Blakely for Defendants
and Respondents.
_________________________________________________
In a lawsuit asserting multiple claims against his former
clients and their new attorneys, attorney Richard Pech alleged
that the new attorneys interfered with his fee agreement by
advising the clients not to file a complaint that Pech drafted. The
new attorneys filed a motion to strike all of Pech’s claims against
them under Code of Civil Procedure section 425.16 (the anti-
SLAPP statute). 1 The trial court granted the motion in part,
striking the claim for interference with contract. On appeal, Pech
contends the anti-SLAPP motion should have been denied,
because the new attorneys failed to identify specific allegations of
protected conduct to be stricken. He also contends the new
attorneys’ interference with the fee agreement was not a
protected activity under the anti-SLAPP statute, or if the conduct
was protected, he established a probability of prevailing on the
merits.
We conclude the new attorneys identified the conduct
supporting the claim for interference with contract that they
asserted was protected under the anti-SLAPP statute. In this
case, advice about proposed litigation against a third party,
including the clients’ rights and obligations under a fee
agreement with another attorney, was protected activity under
the anti-SLAPP statute. Pech did not demonstrate a probability
of prevailing on the merits, because his claim is barred by the
litigation privilege contained in Civil Code section 47, subdivision
(b). Therefore, we affirm.
1 SLAPP is an acronym for “Strategic Lawsuits Against
Public Participation.” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further statutory
references are to the Code of Civil Procedure, unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
Allegations of the Complaint
On May 15, 2020, Pech, representing himself, filed an
action against his former clients Afshin Moghavem (Moghavem),
Afshin Mogahavem, Inc. (AMI), and Prodigy Brands, LLC
(collectively referred to as “the clients”) for fraudulent
concealment, false promise, interference with contract, breach of
contract, and quantum meruit. He also named Doe defendants
who conspired with or aided and abetted the clients in carrying
out the acts supporting liability described below.
Moghavem contacted Pech in January 2019, about bringing
a legal action against Dollar Shave Club, Inc., Michael Dubin,
and Unilever (collectively referred to as “Dollar Shave”). On May
28, 2019, Pech entered into a written fee agreement with the
clients providing for payment of a contingency fee between 15
and 45 percent, depending on the timing of their recovery. Pech
was entitled to 15 percent of any recovery obtained within 60
days after the complaint was filed, up to $200,000.
Pech conducted meetings with the clients, reviewed
hundreds of documents, engaged in substantial research, and
drafted a complaint. On June 14, 2019, Pech provided the clients
with a revised version of the complaint, which he considered
sufficient to file. A representative for the clients replied with
comments and concerns. Pech provided another revised draft on
June 27, 2019, stating that he would file the complaint that day.
The clients’ representative immediately instructed Pech not to
3
file the complaint until Moghavem authorized him to do so in
writing.
Pech suspected the clients were negotiating compensation
directly with Dollar Shave. He repeatedly requested that
Moghavem authorize him to file the complaint. In a telephone
conversation, Moghavem said there was “a disconnect” in the
direction of the case and he did not want to file the complaint.
Moghavem denied that he was negotiating with Dollar Shave and
declined to explain how he would obtain the compensation owed.
He asked Pech to send a bill for his services. On July 3, 2019,
Moghavem sent an email to Pech stating that the contingency fee
agreement was terminated immediately. Pech believed the
clients had negotiated a settlement with Dollar Shave for
payment, but prevented Pech from filing the proposed complaint
on June 27, 2019, which would have entitled him to 15 percent of
the recovery, up to $200,000.
The cause of action for interference with contract alleged
that the clients and Doe defendants had actual knowledge of the
written fee agreement. The Doe defendants, in conjunction with
the clients, prevented performance of the fee agreement by
instructing Pech not to file the complaint that would have vested
the contingency fee. The conduct of the Doe defendants, in
conjunction with the clients, was intended to interfere with
performance of the fee agreement. As a result of the clients’
conduct, Pech suffered damages of $200,000, plus interest, and
the malicious and oppressive conduct justified an award of
punitive damages.
In June 2020, Pech amended the complaint to substitute
the clients’ new attorneys, defendants and respondents Stephen
4
M. Doniger and Scott Alan Burroughs, in place of Doe
defendants.
Doniger and Burroughs’s Anti-SLAPP Motion and
Supporting Evidence
On August 13, 2020, Doniger and Burroughs filed an anti-
SLAPP motion seeking to strike all of the claims in the
complaint. They argued that Pech’s causes of action arose from
activities protected under the anti-SLAPP statute. Certain
claims, including interference with contract, were based on their
role in Moghavem’s decisions not to file the complaint and to fire
Pech. They argued that the clients’ right to petition included the
basic act of filing litigation. The activities were protected based
on the clients’ right to control the litigation and use counsel of
their choice. They also argued their communications with the
clients and with Dollar Shave were protected speech and
petitioning activity in anticipation of litigation, which was under
serious consideration at the time of the communications. Such
acts were equally protected by the litigation privilege of Civil
Code section 47, subdivision (b), and the anti-SLAPP statute.
Pech had not alleged that Doniger or Burroughs did anything
outside the scope of routine legal services.
Doniger and Burroughs also argued that Pech could not
establish a probability of prevailing. His claims were barred by
the litigation privilege of Civil Code section 47, which applies to
any communication by participants in a judicial proceeding that
has some logical relation to the action to achieve the objects of
the litigation. Any communications among Doniger, Burroughs,
and the clients or Dollar Shave would have been with regard to
5
the clients’ legal dispute with Dollar Shave and in connection
with the lawsuit that was eventually filed. The clients had not
surreptitiously negotiated a settlement with Dollar Shave.
Doniger’s declaration in support of the anti-SLAPP motion
stated AMI retained his firm with regard to claims against Dollar
Shave, which were the subject of a pending lawsuit. At no point
prior to filing the lawsuit against Dollar Shave did Doniger
engage in any settlement negotiations, and no settlement had
been reached. Doniger’s partner Burroughs was listed as counsel
of record for the pending litigation, but he had no significant
involvement in the action and no interaction with Dollar Shave.
Opposition and Supporting Evidence
Pech filed an opposition to the anti-SLAPP motion on
September 21, 2020, supported by his declaration. In his
declaration, Pech described a telephone conversation in which
Moghavem said the complaint that Pech drafted placed him in
“jeopardy” and was “very aggressive.” Moghavem said he wanted
to “evaluate the matter” and “did not want this risk at this time.”
Moghavem denied negotiating with Dollar Shave and expressed
concern about suing two of the defendants named in the
complaint. He added that there was a “disconnect between us
about what [he] wanted to do.” Moghavem said three times that
he would pay for the time spent by Pech on the matter.
Moghavem also said that he had the fee agreement “reviewed by
other lawyers” and he “knew [his] rights.” A representative for
the clients requested Pech’s bills in order to provide payment.
Pech admitted that when he filed the current complaint against
the clients, he was not aware they had filed a lawsuit against
6
Dollar Shave; Pech intended to delete the complaint’s allegations
about the clients having settled with Dollar Shave. Pech added,
however, that the metadata for the complaint filed by Doniger
and Burroughs showed it was based on Pech’s draft.
In Pech’s opposition, he conceded that the only cause of
action he had intended to allege against Doniger and Burroughs
was interference with contract; he had filed a request for
dismissal of the other causes of action against them. Pech argued
that attorneys can be held liable for interfering with another
attorney’s fee agreement. A third party’s act inducing a breach of
a fee agreement is not protected by a client’s right to terminate
the agreement. Pech’s claim was not based on Doniger and
Burroughs’s representation of the clients in the underlying case
against Dollar Shave. The gravamen of the cause of action was
that Doniger and Burroughs interfered with Pech’s fee
agreement, as reflected in the allegations that the Doe
defendants had actual knowledge of the fee agreement, and in
conjunction with the clients, prevented performance by
instructing Pech not to file the complaint which would have
vested Pech’s contingency fee. Pech asserted the allegations of
the complaint were “augmented” by his declaration stating that
Moghavem said he had Pech’s fee agreement “reviewed by other
lawyers” and “knew [his] rights,” and that Doniger and
Burroughs only superficially revised the complaint that Pech
drafted before filing it as their own work.
Even if the interfering conduct was a protected activity,
Pech argued that he had established a probability of prevailing.
The elements of the cause of action for interference with contract
required him to show that Doniger and Burroughs knew of the
contract between Pech and the clients, their conduct intentionally
7
prevented performance of the contract, and their conduct was a
substantial factor in causing Pech harm. Pech argued Moghavem
acted on the advice of lawyers, as evidenced by Moghavem’s
statements that: the complaint placed Moghavem in “jeopardy”
and was “very aggressive;” he wanted to “evaluate the matter”
and “did not want this risk at this time;” Moghavem had concerns
about suing some of the defendants named in the complaint; and
Moghavem had the fee agreement “reviewed by other lawyers”
and “knew [his] rights.” Pech argued these statements
demonstrated that Doniger and Burroughs knew about and
intended to disrupt performance of Pech’s fee agreement. Their
conduct was a substantial factor in causing Pech harm, because
the fee agreement provided for payment for legal services
rendered.
In addition, Pech submitted the fee agreement executed by
the clients providing for contingency and hourly fees, as well as
several versions of the complaint that he drafted on behalf of the
clients. He compared his draft of the complaint to the complaint
filed by Doniger and Burroughs. Although the majority of the
text was different, certain words, phrases, and sentences were
identical.
Pech submitted a letter that he received from Doniger
dated May 29, 2020, in which Doniger stated that he represented
Moghavem’s company in pending litigation against Dollar Shave.
Doniger stated, “I understand that you had initially been
retained to work on the case before the client decided to switch
counsel and instead pursue it with my office (as is its absolute
right). [¶] I have just received a copy of the attached complaint
filed by you [against the clients] and been asked to represent Mr.
Moghavem and his company in connection with this litigation as
8
well.” He informed Pech that the clients’ claims against Dollar
Shave had not been settled and were in litigation. The clients
had asked Pech to provide the bills for his services on multiple
occasions, but Pech never complied. Doniger reiterated the
request for Pech to send his bills. In addition, he expressed deep
concern that Pech included substantial attorney-client
communications in his complaint against the clients, a public
filing that could prove harmful to the clients’ case against Dollar
Shave.
Reply and Trial Court Ruling
Doniger and Burroughs filed a reply on September 25,
2020. They argued that Pech could not avoid responsibility for
the anti-SLAPP motion by dismissing several causes of action
prior to the trial court’s ruling. The only conduct alleged in the
complaint to interfere with the fee agreement was the clients’
instruction not to file the complaint, which Doniger and
Burroughs argued was protected activity. Pech’s declaration
described additional protected conduct in the form of legal advice
provided to clients seeking new counsel. Doniger and Burroughs
argued that prelitigation solicitation of potential clients and
pleadings filed in litigation fall within the protection of both the
litigation privilege and the anti-SLAPP statute. They requested
the trial court strike all of the causes of action in the complaint
and award attorney fees and costs.
A hearing was held on Doniger and Burroughs’s anti-
SLAPP motion on October 2, 2020. The trial court took the
matter under submission, and on November 2, 2020, issued an
order granting the anti-SLAPP motion in part. The court found
9
the basis of the cause of action for interference with contract was
the allegation that Doniger and Burroughs had prevented Pech
from filing the complaint he drafted. The trial court reasoned
that since filing a complaint is protected petitioning activity, by
analogy, an attorney’s instruction not to file a complaint furthers
the right to petition.
The court noted that Pech had included facts in his
declaration that were not alleged in his complaint. Specifically,
Moghavem’s statements that other lawyers reviewed the fee
agreement and advised him of his rights, which Pech assumed
referred to Doniger and Burroughs. Reviewing the fee agreement
and advising Moghavem of his rights in connection with
impending litigation was protected conduct under the anti-
SLAPP statute. Counseling the clients about their rights under
the fee agreement anticipated the current legal action by Pech, so
was protected activity for that reason as well.
The trial court also concluded that Pech failed to establish
a probability of prevailing on the merits. Moghavem did not state
that attorneys told him not to file the complaint, and even if it
could be inferred, Moghavem’s statements were hearsay and did
not identify which lawyers had provided the advice. In addition,
Pech failed to demonstrate minimal merit as to any damages.
There was no settlement triggering the contingency in the fee
agreement, and Pech’s new claim for damages based on hourly
fees had nothing to do with the conduct he had alleged against
Doniger and Burroughs. Even if the evidence were sufficient to
show Doniger and Burroughs counseled the clients not to file the
complaint and to terminate Pech’s services, which the court
emphasized that it was not finding, such conduct was protected
by the litigation privilege under Civil Code section 47.
10
Although Pech dismissed all of the causes of action against
Doniger and Burroughs other than interference with contract, the
trial court retained limited jurisdiction to rule on the merits of
the dismissed claims to determine Pech’s liability for an award of
attorney fees and costs. The court concluded the motion to strike
would have been granted as to the cause of action for breach of
contract, because it was based on the same alleged conduct as the
claim for interference with contract. The anti-SLAPP motion
would have been denied as to the causes of action for fraudulent
concealment, false promise, and quantum meruit, because they
did not arise from protected activity.
In footnotes to the rulings on fraudulent concealment and
false promise, the court stated it could not strike the specific
allegations within those causes of action that the clients
instructed Pech not to file the complaint. The court reasoned
that under Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral), the
moving party was required to identify all of the allegations of
protected activity to be stricken, and Doniger and Burroughs did
not identify these allegations as a subject of their motion to
strike, so failed to meet their burden as to these particular
allegations.
Pech filed a timely notice of appeal.
Pech I
The clients filed their own anti-SLAPP motion, which the
trial court granted in part. Pech filed an appeal from that ruling.
In an unpublished opinion, this appellate court reversed a portion
of the lower court’s order that had struck the cause of action for
breach of contract against the clients. (Pech v. Moghavem (Sept.
11
9, 2021, B308593) (Pech I).) The clients were entitled to control
their litigation activities by instructing Pech not to file the
complaint that he had drafted for them, but we concluded the
clients’ instruction not to file a complaint was not an exercise of
their right to petition. Therefore, the clients’ conduct at issue in
Pech I was not the type of activity protected by the anti-SLAPP
statute.
DISCUSSION
Doniger and Burroughs sought to strike all of Pech’s claims
in their anti-SLAPP motion, but only the cause of action for
interference with contract is at issue on appeal. Pech contends
the anti-SLAPP motion should have been denied, because
Doniger and Burroughs failed to identify the allegations of
protected conduct to be stricken, their interference with the fee
agreement was not protected activity, and he established a
probability of prevailing on the merits. We conclude Pech’s
analysis is incorrect on each point.
Statutory Scheme and Standard of Review
The Legislature enacted the anti-SLAPP statute to protect
defendants from meritless lawsuits brought primarily to
discourage the defendants from exercising their constitutional
rights to speak and petition on matters of public significance.
(§ 425.16, subd. (a); Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1008–1009 (Bonni).) To accomplish this purpose, the
statute authorizes a special motion to strike “[a] cause of action
against a person arising from any act of that person in
12
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 . . . unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
“‘Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.]”
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788
(Monster).) The court considers the elements of the claim and the
acts of the defendant satisfying those elements that form the
basis for liability. (Bonni, supra, 11 Cal.5th at p. 1009.) “The
defendant’s burden is to identify what acts each challenged claim
rests on and to show how those acts are protected under a
statutorily defined category of protected activity. [Citation.]”
(Bonni, supra, 11 Cal.5th at p. 1009; Baral, supra, 1 Cal.5th at p.
396 [“At the first step, the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them”].) “When relief is sought based on
allegations of both protected and unprotected activity, the
unprotected activity is disregarded at this stage.” (Baral, supra,
1 Cal.5th at p. 396.) The moving party may argue that the
allegations arise from protected activity, even when the party
disputes the truth of the allegations. (Bel Air Internet, LLC v.
Morales (2018) 20 Cal.App.5th 924, 939 (Bel Air).)
“‘If the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success. We have described this
second step as a “summary-judgment-like procedure.” [Citation.]
The court does not weigh evidence or resolve conflicting factual
13
claims. Its inquiry is limited to whether the plaintiff has stated a
legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment. It accepts the
plaintiff’s evidence as true, and evaluates the defendant’s
showing only to determine if it defeats the plaintiff’s claim as a
matter of law. [Citation.] “[C]laims with the requisite minimal
merit may proceed.”’ [Citation.] The grant or denial of an anti-
SLAPP motion is reviewed de novo. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1067 [(Park)].)”
(Monster, supra, 7 Cal.5th at p. 788.)
In making its determination, the court considers the
pleadings and the evidence submitted in connection with the
proceeding to provide the facts supporting the liability or defense.
(Code Civ. Proc., § 425.16, subd. (b)(2).)
Elements of Tortious Interference with Contract
To evaluate whether Pech’s claim involves protected
activity, we must first review the elements of interference with
contract. “Tortious interference with contractual relations
requires ‘(1) the existence of a valid contract between the plaintiff
and a third party; (2) the defendant’s knowledge of that contract;
(3) the defendant’s intentional acts designed to induce a breach or
disruption of the contractual relationship; (4) actual breach or
disruption of the contractual relationship; and (5) resulting
damage.’ [Citations.]” (Ixchel Pharma, LLC v. Biogen,
Inc. (2020) 9 Cal.5th 1130, 1141 (Ixchel).)
As a general rule, the defendant’s conduct does not have to
be wrongful apart from the interference with the contract itself,
with important exceptions. (Ixchel, supra, 9 Cal.5th at p. 1141.)
14
“[T]o state a claim for interference with an at-will contract by a
third party, the plaintiff must allege that the defendant engaged
in an independently wrongful act.” (Id. at p. 1148
[disapproving Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th
989 and Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39 to the
extent they are in consistent].)
“The Restatement explains: ‘One’s interest in a contract
terminable at will is primarily an interest in future relations
between the parties, and he has no legal assurance of them. For
this reason, an interference with this interest is closely analogous
to interference with prospective contractual relations. [Citation.]
If the defendant was a competitor regarding the business
involved in the contract, his interference with the contract may
be not improper.’ (Rest.2d Torts, § 766, com. g, pp. 10–11;
accord, id., § 768, com. i., p. 44.)” (Ixchel, supra, 9 Cal.5th at p.
1145.)
“Like parties to a prospective economic relationship, parties
to at-will contracts have no legal assurance of future economic
relations. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039,
1053 [at-will contracts provide ‘only an expectation of future
contractual relations’].) An at-will contract may be terminated,
by its terms, at the prerogative of a single party, whether it is
because that party found a better offer from a competitor,
because the party decided not to continue doing business, or for
some other reason. And the other party has no legal claim to the
continuation of the relationship. The contracting parties
presumably bargained for these terms, aware of the risk that the
relationship may be terminated at any time. At-will contractual
relations are thus not cemented in the way that a contract not
terminable at will is. The interest in protecting the contract from
15
interference more closely resembles the interest in protecting
prospective economic relationships than the interest in protecting
a contractual relationship that, by its terms, is expected to
continue on pain of breach.” (Ixchel, supra, 9 Cal.5th at p. 1147.)
Procedural Requirements for the Anti-SLAPP Motion
Pech contends that the anti-SLAPP motion should have
been denied because Doniger and Burroughs failed to meet their
initial burden to identify specific allegations of protected conduct
to be stricken. Even assuming the issue was not forfeited for
failing to raise it below, Pech’s analysis is incorrect.
The anti-SLAPP statute states that a “cause of action” is
subject to a special motion to strike. (§ 425.16, subd. (b)(1).)
“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
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(b)(1).” (Baral, supra, 1
Cal.5th at pp. 381–382.)
The term “cause of action” has different meanings
depending on context. “Cause of action” commonly refers to
separate counts of a complaint pleaded as “first cause of action,”
“second cause of action,” and so on. (Baral, supra, 1 Cal.5th at p.
381.) “Cause of action” may also refer to a legal claim regardless
of whether litigation has been filed, consisting of an injured
plaintiff’s primary right, the defendant’s duty, and a breach of
16
that duty that allows for a remedy. (Ibid.) Section 425.16,
subdivision (b)(1), uses “cause of action” in a unique way in order
to strike claims based on protected activity, regardless of the way
a cause of action is described in the complaint or under the
primary right theory. (Id. at p. 382.) Because the term “cause of
action” has different meanings, the Baral court chose to refer to
the subject of an anti-SLAPP motion as a “claim” to avoid
confusion and we adopt the same practice. (Ibid.) “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.” (Ibid.)
Courts frequently refer to a count that alleges both
protected and unprotected activity as a “mixed cause of action,”
which, although technically inaccurate, is a convenient
shorthand. (Baral, supra, 1 Cal.5th at p. 382.) “When relief is
sought based on allegations of both protected and unprotected
activity, the unprotected activity is disregarded at this stage.”
(Id. at p. 396.)
Whether the moving party’s anti-SLAPP motion seeks to
strike an entire count pleaded in the complaint or simply parts of
it, the same analysis applies. (Bonni, supra, 11 Cal.5th at p.
1011.) “[T]he moving defendant must identify the acts alleged in
the complaint that it asserts are protected and what claims for
relief are predicated on them.” (Id. at p. 1010.) The court
examines whether each act or set of acts identified by the
defendant, of which there may be several in a single count, is
protected and forms the basis of a claim for relief. (Ibid.) “It does
not matter that other unprotected acts may also have been
alleged within what has been labeled a single cause of action;
these are ‘disregarded at this stage.’ (Baral, supra, 1 Cal.5th at
17
p. 396.) So long as a ‘court determines that relief is sought based
on allegations arising from activity protected by the statute, the
second step is reached’ with respect to these claims. (Ibid.)”
(Bonni, supra, 11 Cal.5th at p. 1010.)
If a count pleaded in the complaint encompasses multiple
claims and the moving party fails to identify how the acts
underlying some of those claims are protected activity, then the
moving party has not met its burden with respect to those
unidentified claims. (Bonni, supra, 11 Cal.5th at p. 1011.)
A court may consider the “gravamen” of a claim to evaluate
whether a particular act or series of acts supplies an element or
simply incidental context, but not to determine the primary focus
of a mixed cause of action. (Bonni, supra, 11 Cal.5th at p. 1011
[rejecting application of a “gravamen test” to determine the
essence of a mixed cause of action that encompassed multiple
claims].) “This approach is consistent with Baral, which
reaffirmed that ‘[a]ssertions that are “merely incidental” or
“collateral” are not subject to section 425.16. [Citations.]
Allegations of protected activity that merely provide context,
without supporting a claim for recovery, cannot be stricken under
the anti-SLAPP statute.’ (Baral, supra, 1 Cal.5th at p. 394.)”
(Bonni, supra, 11 Cal.5th at p. 1012.)
In this case, the cause of action for interference with
contract alleges that Doniger and Burroughs, in conjunction with
the clients, prevented performance of the fee agreement by
instructing Pech not to file the complaint he drafted. It is not a
mixed cause of action, as no other conduct by Doniger or
Burroughs, protected or unprotected, is alleged to have interfered
with the fee agreement. The anti-SLAPP motion identified the
alleged conduct that Doniger and Burroughs asserted was
18
protected activity under the anti-SLAPP statute: the allegation
that Doniger and Burroughs played a role in the clients’ decision
not to file the complaint and to terminate Pech’s services.
Doniger and Burroughs therefore met their burden to identify the
conduct that they asserted was protected activity.
Pech has not identified any conduct that he has alleged to
support his interference claim other than the conduct that
Doniger and Burroughs identified in their anti-SLAPP motion as
protected activity. In opposing the motion to strike, Pech
provided a declaration with additional information, and the court
looks to both the pleadings and the evidence submitted in the
proceeding to make its determination (Code Civ. Proc., § 425.16,
subd. (b)(2)). But Doniger and Burroughs could only identify
conduct in their moving papers that Pech had alleged in his
complaint. Pech has not shown that the trial court struck any
conduct allegations supporting a claim for interference other than
the conduct that Doniger and Burroughs identified in the anti-
SLAPP motion. (Bonni, supra, 11 Cal.5th at pp. 1010–1011.)
To the extent Pech contends an anti-SLAPP motion cannot
seek to strike an entire cause of action (i.e., an entire pleaded
count in a complaint), but must instead identify specific
allegations of the complaint to be stricken, his analysis of the
procedural requirements is incorrect. A moving party may seek
to strike an entire cause of action or just parts of it. (Bonni,
supra, 11 Cal.5th at p. 1011.) The trial court denied the anti-
SLAPP motion as to Pech’s causes of action for fraudulent
concealment and false promise because the court concluded the
conduct identified by the moving parties was not protected
activity. In footnotes, the court stated that it could not strike
particular allegations of protected activity within those counts,
19
because the moving parties had not identified those allegations
as a subject of their anti-SLAPP motion. In other words, to the
extent that the causes of action for fraudulent concealment and
false promise presented mixed causes of action, the court
concluded it did not have authority to strike the portion that had
not been expressly identified by the moving party. In contrast,
the cause of action for interference with contract did not present
a mixed cause of action, and the moving parties identified the
conduct supporting the claim for interference that they contended
was protected activity. Whether the trial court could have
stricken allegations of protected conduct from the counts for
fraudulent concealment and false promise based on the moving
parties’ identification of the conduct as a protected activity in
connection with another count is not before us, because Doniger
and Burroughs did not appeal from the trial court’s ruling in
Pech’s favor on those causes of action.
Prong One - Protected Activity
Pech contends the conduct alleged to have interfered with
the fee agreement was not protected activity. We disagree.
The moving party has the burden to identify conduct
alleged in the complaint that is protected under the anti-SLAPP
statute and supplies one or more elements of the plaintiff’s claim.
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887–
888 (Wilson); RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc.
(2020) 56 Cal.App.5th 413, 425 (RGC Gaslamp); see Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620 [“A
defendant satisfies the first step of the analysis by demonstrating
that the ‘conduct by which plaintiff claims to have been injured
20
falls within one of the four categories described in subdivision (e)
[of section 425.16]’ [citation], and that the plaintiff’s claims in fact
arise from that conduct [citation.])
“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.) To determine
whether a claim arises from protected activity, courts must
‘consider the elements of the challenged claim and what actions
by the defendant supply those elements and consequently form
the basis for liability.’ (Id. at p. 1063.) Courts then must
evaluate whether the defendant has shown any of these actions
fall within one or more of the four categories of ‘“act[s]”’ protected
by the anti-SLAPP statute. (§ 425.16, subd. (e); Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)”
(Wilson, supra, 7 Cal.5th at p. 884.)
Communications protected under the anti-SLAPP statute
include “any written or oral statement or writing made before a
legislative, executive, or judicial proceeding” (§ 425.16, subd.
(e)(1)) or “in connection with an issue under consideration or
review” in such proceedings (id., subd. (e)(2)). 2 “Statements
2 The anti-SLAPP statute identifies four categories of
protected activity: “(1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the exercise of
21
made in preparation for litigation or in anticipation of bringing
an action fall within these categories. (Flatley [v. Mauro (2006)
39 Cal.4th 299,] 322, fn.11, citing Briggs v. Eden Council for Hope
and Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).)” (RGC
Gaslamp, supra, 56 Cal.App.5th at p. 425.)
Counseling others in anticipation of litigation or
encouraging others to sue is considered protected prelitigation
activity. (Briggs, supra, 19 Cal.4th at p. 1115; Bel Air, supra, 20
Cal.App.5th at p. 940.) For example, in Briggs, the California
Supreme Court found certain communications by a nonprofit
corporation were protected statements in anticipation of
litigation, including assisting a tenant to institute legal action
against her landlord and providing information to another tenant
about habitability that resulted in a successful small claims
action. (Briggs, supra, 19 Cal.4th at p. 1114–1115.)
The gravamen of Pech’s claim for interference with contract
is that the legal advice provided by Doniger and Burroughs
interfered with the fee agreement by causing the clients not to
file the complaint that Pech drafted and to terminate his
services. 3 The attorneys’ advice about the clients’ proposed
litigation and their obligations under the fee agreement was
provided in preparation for litigation. The legal advice in this
case is, therefore, protected prelitigation speech. Pech alleged
the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).)
3 Under Bonni, it is still appropriate to consider the
gravamen of a claim to determine whether the protected conduct
identified by the moving party supplies an element of the claim or
is merely incidental. (Bonni, supra, 11 Cal.5th at p. 1011.)
22
the protected speech was intentional conduct designed to induce
a breach of the fee agreement, which is an element of the
interference claim. As a result of the interfering conduct, Pech
alleged, the clients breached the fee agreement by instructing
him not to file the complaint and terminating his services. We
conclude that the interference claim against Doniger and
Burroughs is based on protected prelitigation speech activity.
In Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482
(Taheri), the appellate court found similar communications with
a client about pending litigation were protected activity under
the anti-SLAPP statute. The law firm in Taheri filed an action
against attorney Neil Evans for several causes of action,
including intentional interference with business relations. (Id. at
p. 485.) The complaint alleged that Evans induced a client of the
firm to terminate the relationship with the firm by promising
unobtainable and unethical litigation objectives. (Id. at pp. 485–
486.) Evans asserted his actions were protected by the anti-
SLAPP statute, because the conduct took place in connection with
filings and communicative actions in pending litigation. The law
firm argued the lawsuit arose from Evans’s act of soliciting a
client, not conduct in the pending litigation. The appellate court
found the law firm’s causes of action arose directly from
communications between Evans and the client about litigation
pending against the client, which was protected activity. (Id. at
p. 489.)
Several courts have concluded by analogy to the litigation
privilege of Civil Code section 47, subdivision (b), that
prelitigation statements must be made in connection with
proposed litigation contemplated in good faith and under serious
consideration in order to be protected under the anti-SLAPP
23
statute. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric
Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125–1128; Neville v.
Chudacoff (2008) 160 Cal.App.4th 1255, 1268; Bel Air, supra, 20
Cal.App.5th at pp. 940−941; Bailey v. Brewer (2011) 197
Cal.App.4th 781, 789; People ex rel. Fire Ins. Exchange v.
Anapol (2012) 211 Cal.App.4th 809, 824.) 4 To find a prelitigation
statement privileged under the litigation privilege, it must relate
to litigation contemplated in good faith and under serious
consideration, which is an issue of fact. (Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action
Apartment).)
In RGC Gaslamp, however, the appellate court
persuasively cast doubt on whether this requirement should be
imported to the anti-SLAPP statute. (RCG Gaslamp, supra, 56
Cal.App.5th at pp. 427–431.) The RGC Gaslamp court noted that
a defendant is not required to disprove allegations of illicit motive
in the first step of the anti-SLAPP analysis; the plaintiff must
establish an illicit motive in the second prong of the analysis as
part of a prima facie showing on the merits. (RGC Gaslamp,
supra, 56 Cal.App.5th at pp. 425–426, citing Wilson, supra, 7
Cal.5th at p. 888.) “Requiring a moving defendant to
affirmatively show that its statements were made in good faith
while litigation was seriously contemplated would seem, at least
4 The scope of the litigation privilege contained in Civil
Code section 47, subdivision (b), may aid the court to determine
the scope of protected litigation activity under similar provisions
of the anti-SLAPP statute, although the two statutes serve
different purposes and are not coextensive. (Flatley v. Mauro,
supra, 39 Cal.4th at pp. 322–325; RGC Gaslamp, supra, 56
Cal.App.5th at p. 428.)
24
in certain contexts, to import a merits inquiry as to whether the
statements ultimately arose from protected petitioning activity.
On the other hand, such criteria may be helpful in evaluating
prelitigation statements that do not intrinsically anticipate
litigation. (See, e.g., Rohde v. Wolf (2007) 154 Cal.App.4th 28,
36–37 [concluding voicemail messages were protected activity].)”
(RGC Gaslamp, supra, 56 Cal.App.5th at p. 429.)
Ultimately, the RGC Gaslamp court was not required to
decide whether the additional limitations of the litigation
privilege apply in the anti-SLAPP context, and neither are we.
Even if the additional limitations apply, the conduct in this case
is protected activity. It is clear from the complaint that Doniger
and Burroughs’s communications with the clients concerned
litigation contemplated in good faith and under serious
consideration. When the communications took place, Pech was in
the process of drafting and filing a complaint on behalf of the
clients, and the clients subsequently filed a different complaint.
Pech’s reliance on Drell v. Cohen (2014) 232 Cal.App.4th 24
(Drell), is misplaced. In Drell, the appellate court found that a
declaratory relief action to determine the right to payment of
attorney fees between different counsel did not arise from
protected activity. (Id. at p. 30.) Although one party had
asserted a lien on the client’s recovery, this protected conduct was
merely incidental, not the basis of the action. (Ibid.) In contrast,
Doniger and Burroughs’s protected statements to the clients were
the basis of the interference claim.
Pech contends that under Abrams & Fox, Inc. v. Briney
(1974) 39 Cal.App.3d 604, 607–609 (Abrams), and Trembath v.
Digardi (1974) 43 Cal.App.3d 834, 835–836 (Trembath), the
general principles that govern a claim for interference with
25
contract apply to a claim for interference with an attorney fee
agreement, despite the client’s right to terminate the agreement
at will. (Abrams, supra, 39 Cal.App.3d at pp. 607–609;
Trembath, supra, 43 Cal.App.3d at pp. 836.) Neither case
considered, however, whether the conduct at issue was protected
activity under the anti-SLAPP statute, which would not be
enacted until several years later. Moreover, it is clear based on
Ixchel that although a claim for interference with contract may be
brought based on interference with an at-will attorney fee
agreement, the plaintiff must allege that the defendant engaged
in an independently wrongful act. (See Ixchel, supra, 9 Cal.5th at
p. 1148.) Finding the conduct in this case is protected under the
anti-SLAPP statute simply shifts the burden to the plaintiff to
demonstrate the merit of his claim by establishing a probability
of success.
For the first time in his reply brief, Pech contends the
conduct at issue in this appeal is the same conduct that this court
already found to not be protected in Pech I. This is incorrect.
Pech I concerned Pech’s allegation that the clients breached the
fee agreement by refusing to file the complaint that he drafted.
We concluded the clients’ decision to refrain from filing the
complaint was not an exercise of their right to petition, and
therefore, was not protected activity under the anti-SLAPP
statute. Pech I did not concern any communications that Doniger
and Burroughs had with the clients. In contrast, the cause of
action at issue in this appeal is based on the attorneys’ advice
about proposed litigation and obligations under the fee
agreement, which Pech alleges interfered with performance of the
fee agreement. The attorneys’ statements concerning the
proposed lawsuit were protected prelitigation speech activity,
26
separate from the conduct of the clients that Pech alleged
breached the fee agreement.
Prong Two - Probability of Prevailing
Pech contends the litigation privilege of Civil Code section
47, subdivision (b), does not apply to Doniger and Burroughs’s
communications with the clients. He further contends that he
made a prima facie showing of the facts necessary to sustain a
judgment in his favor. We conclude that the litigation privilege
shields the communications at issue in this case.
“The litigation privilege ‘generally protects from tort
liability any publication made in connection with a judicial
proceeding.’ (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948,
952.)” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288
(Weeden).) “The litigation privilege, codified at Civil Code section
47, subdivision (b), provides that a ‘publication or broadcast’
made as part of a ‘judicial proceeding’ is privileged. This
privilege is absolute in nature, applying ‘to all publications,
irrespective of their maliciousness.’ (Silberg v. Anderson (1990)
50 Cal.3d 205, 216 (Silberg).) ‘The usual formulation is that the
privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the
action.’ (Id. at p. 212.) The privilege ‘is not limited to statements
made during a trial or other proceedings, but may extend to steps
taken prior thereto, or afterwards.’ (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1057 (Rusheen).)” (Action Apartment, supra, 41
Cal.4th at p. 1241.) “The intention of the party making the
27
privileged communication is irrelevant because the privilege ‘is
absolute in nature, applying “to all publications, irrespective of
their maliciousness.”’ (Ibid.)” (Weeden, supra, 70 Cal.App.5th at
p. 288.)
“‘The principal purpose of [the litigation privilege] is to
afford litigants and witnesses [citation] the utmost freedom of
access to the courts without fear of being harassed subsequently
by derivative tort actions. [Citations.]’ [Citation.] In order to
achieve this purpose of curtailing derivative lawsuits, we have
given the litigation privilege a broad interpretation.” (Action
Apartment, supra, 41 Cal.4th at p. 1241.) “‘Although originally
enacted with reference to defamation [citation], the privilege is
now held applicable to any communication, whether or not it
amounts to a publication [citations], and all torts except malicious
prosecution. [Citations.]’ (Silberg v. Anderson (1990) 50 Cal.3d
205, 212, italics added.)” (Weeden, supra, 70 Cal.App.5th at p.
288.) As stated above, for a prelitigation statement to be
privileged under the litigation privilege, it must relate to
litigation that is contemplated in good faith and under serious
consideration. (Action Apartment, supra, 41 Cal.4th at p. 1251.)
In this case, the evidence showed Doniger and Burroughs’s
advice to the clients was inextricably intertwined with
communication about proposed litigation with Dollar Shave. It is
undisputed that litigation was under serious consideration. Pech
has not provided any citation to authority that would suggest the
litigation privilege does not apply to the conduct at issue in this
case. Therefore, we affirm the trial court’s order.
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DISPOSITION
The November 2, 2020 order is affirmed. Respondents
Stephen M. Doniger and Scott Alan Burroughs are awarded their
costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
29