Lunada Biomedical v. Nunez , 178 Cal. Rptr. 3d 784 ( 2014 )

Filed 10/9/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LUNADA BIOMEDICAL, B243205
Consolidated with B246602
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC476870)
LAURA NUNEZ et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of the County of Los Angeles, Charles
F. Palmer, Judge. Affirmed and remanded.
The Hicks Law Group, James B. Hicks for Plaintiff and Appellant.
Milstein Adelman, Gillian L. Wade, Mayo L. Makarczyk, Sara D. Avila; Erich D.
Schiefelbine for Defendants and Respondents.
INTRODUCTION
Attorneys for a consumer served on a company a notice required for damages
under the Consumer Legal Remedies Act, Civil Code section 1750 et seq. (CLRA),
setting forth alleged violations of the CLRA and demanding action. The company then
brought a declaratory relief action against the consumer and her attorneys seeking a
declaration that it had not violated the CLRA. The consumer and the attorneys moved to
strike the complaint under Code of Civil Procedure section 425.161 (anti-SLAPP
statute2), which motions the trial court granted. In affirming, we hold that the declaratory
relief action is subject to the anti-SLAPP statute as it arose out of protected activity
provided by that statute, and that the trial court properly granted the special motions to
strike because the company’s declaratory relief action had no probability of success. In
this connection, we hold that under the reasoning of Filarsky v. Superior Court (2002) 28
Cal. 4th 419 (Filarsky), a potential defendant in a CLRA damages action after receiving
the statutory notice may not maintain a declaratory relief action to establish that there was
no violation of the CLRA. We therefore affirm the order striking the complaint. We also
affirm the award of attorney fees.
1
All further statutory references are to the Code of Civil Procedure unless otherwise
indicated. We sometimes refer to a section 425.16 motion as an anti-SLAPP motion.
2
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.”
(Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 57, fn.1.)
2
FACTUAL AND PROCEDURAL BACKGROUND
Laura Nunez (Nunez) retained two law firms, Newport Trial Group (Newport) and
Wasserman, Comden, Casselman & Esensten, LPP (Wasserman), 3 to represent her in an
anticipated consumer class action under the CLRA. Newport served Lunada Biomedical
(plaintiff) with a one page notice and demand, pursuant to Civil Code section 1782 of the
CLRA (CLRA Notice), via certified mail, return receipt requested, contending that
plaintiff’s dietary supplement, “Amberen,” was being marketed falsely and misleadingly
as a “natural remedy for Menopausal symptom relief,” in violation of the CLRA. The
CLRA Notice was served on behalf of an unnamed Californian individual and a class of
similarly situated persons. It requested that plaintiff “irrevocably stop all false,
misleading, and/or unsubstantiated advertising and labeling claims, and provide all
consumers who have purchased Amberen with a full refund.” Plaintiff’s counsel
responded by letter to the CLRA Notice, denying its contentions, and claiming in detail
that scientific evidence supported plaintiff’s advertising claims concerning Amberen.
Thereafter, plaintiff’s counsel sent an e-mail to Wasserman confirming their
telephone conversation that occurred a few days previously, stating that he disagreed with
Wasserman’s claims for the reasons set forth in plaintiff’s earlier reply letter, and stating,
“[A]s I mentioned, I almost always consider settlement issues before litigation, so I asked
you to propose a settlement offer. . . . There’s no rush, we can talk whenever you are
ready.” Later that afternoon, an attorney from Wasserman sent an e-mail to Plaintiff’s
counsel, stating, “Given the upcoming holidays, I have not had a chance to talk to all
interested parties, much less put together a ‘settlement offer.’” The e-mail also stated that
Wasserman needed information regarding the sale of Amberen before it could propose a
settlement demand, but that it would provide plaintiff’s counsel with an outline of the
3
Newport and Wasserman are sometimes collectively referred to as the law firm
defendants.
3
injunctive relief concerning “labeling and advertising changes” that “we” would demand
as part of any settlement.
A little over a month later, the attorney from Wasserman sent an 11-page letter to
plaintiff’s counsel via e-mail and United States mail thanking him for responding to “our
[CLRA Notice] on behalf of our client, . . . Nunez . . . regarding her potential class action
claims related to Amberen . . . .” The letter stated, “In accordance with our November
18th telephone conversation and subsequent email communications, this letter will
discuss possible ways to resolve the current dispute concerning our client’s false and
misleading advertising claims against [plaintiff]. I will not attempt to further address the
merits of [Nunez’s] claims in this letter. Instead, I will simply outline briefly potential
settlement approaches and structures.” It set forth possible “ALTERNATIVE
SETTLEMENT STRUCTURES,” and detailed matters subject to injunctive relief
consisting of “PROPOSED ADVERTISING AND MARKETING MODIFICATIONS.”
The proposed advertising and marketing modifications were matters that, according to
Wasserman, plaintiff should “permanently cease” from representing to current and
potential purchasers of Amberen, “delete” from all Amberen advertising and labeling,
and include in all future Amberen advertising and labeling.
Within two weeks, plaintiff filed a complaint alleging a single cause of action for
declaratory relief against defendants. Plaintiff sought a determination regarding “the
accuracy and legality” of plaintiff’s advertising of Amberen. Plaintiff alleged in its
complaint that “[t]his action is being filed because Defendants threaten to file a lawsuit
claiming that Plaintiff’s advertising violates California’s consumer protection statutes,
including . . . [the CLRA]. However, Defendants’ threatened suit lacks any basis . . . .”
Plaintiff alleged in the complaint that “[t]his dispute was originally raised in a [CLRA
Notice] claiming that [plaintiff’s] advertising for Amberen supposedly violated the
CLRA . . . .” Plaintiff also referred to in the complaint various additional
communications the parties had regarding settlement, including Wasserman’s letter.
Plaintiff also included in the complaint responses to the matters contained in
Wasserman’s letter.
4
Nunez and Newport filed an anti-SLAPP motion, in which Wasserman joined.
The motions were made on the grounds that plaintiff’s claim arose from protected
activity—“defendants’ CLRA [N]otice regarding plaintiff’s deceptive advertising claims
about its product Amberen, and related settlement communications”— and plaintiff could
not establish a probability of prevailing on its claim.
Plaintiff opposed defendants’ anti-SLAPP motions. In support of that opposition,
plaintiff provided substantial evidence in support of its contention that its advertising of
Amberen was not false and misleading. Specifically, plaintiff submitted declarations
attaching plaintiff’s counsel’s letter setting forth scientific evidence that supported
plaintiff’s advertising claims concerning Amberen and declarations of a professor in
biology from the Department of Life Sciences at Santa Monica College and of a deputy
director and head of the Laboratory of the Institute of Theoretical and Experimental
Biophysics of the Russian Academy of Science, both of which declarations asserted in
detail that scientific evidence supported plaintiff’s advertising claims concerning
Amberen. Defendants objected to plaintiff’s evidence.4
The trial court issued a tentative ruling granting the special motions to strike the
complaint, finding that defendants met their burden that plaintiff’s claim arose from
protected activity; plaintiff could not establish a probability of prevailing on its
declaratory relief claim because “defendants’ notification letter” were absolutely
privileged by the litigation privilege of Civil Code section 47; and “in the absence of the
notification letter, plaintiff has no evidence that an ‘actual controversy’ exists between
[it] and defendants . . . .” At the conclusion of the hearing on defendants’ motions, the
trial court adopted its tentative ruling as its final ruling.
Defendants filed motions to recover their attorney fees under section 425.16,
subdivision (c). The trial court awarded $104,293.75 in attorney fees to Nunez and
4
The trial court did not rule on defendants’ objections. Defendants do not contend
that we should consider their objections in this appeal or that plaintiff did not provide
sufficient evidence in support of its contention as to the accuracy of its advertising of
Amberen.
5
Newport, and $57,765.63 in attorney fees to Wasserman. Plaintiff appeals from the
orders granting the special motions to strike and awarding attorney fees, asserting that the
anti-SLAPP statute did not apply to its declaratory relief claim and challenging the
amount of the attorney fees award.
DISCUSSION
A. Anti-SLAPP Motion
1. Legal Principles
a) Anti-SLAPP Statute and Standard of Review
Section 425.16 provides that a cause of action arising from a defendant’s conduct
in furtherance of constitutionally protected rights of free speech or petitioning may be
stricken unless the plaintiff has a probability of prevailing on the merits. (§ 425.16, subd.
(b)(1).) In ruling on a special motion to strike under section 425.16, the trial court
employs a two-prong analysis. Initially, under the first prong, the trial court determines
“‘whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity. . . . If the court finds such a showing has
been made, it then determines [under the second prong] whether the plaintiff has
demonstrated a probability of prevailing on the claim.’ [Citation.]” (Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal. 4th 728, 733.)
To satisfy the second prong—the probability of prevailing—the plaintiff must
demonstrate that the complaint is legally sufficient and supported by a prima facie
showing of facts to support a favorable judgment if the evidence submitted by the
plaintiff is accepted. The trial court considers the pleadings and evidentiary submissions
of both the plaintiff and the defendant. Although “‘the court does not weigh the
credibility or comparative probative strength of competing evidence, it should grant the
motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the
6
plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ (Wilson v.
Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821 [123 Cal. Rptr. 2d 19, 50 P.3d
733], superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150
Cal. App. 4th 527, 547 [59 Cal. Rptr. 3d 109].)” (Cole v. Patricia A. Meyer & Associates,
APC (2012) 206 Cal. App. 4th 1095, 1104-1105 (Cole).) The standard for determining the
merits of a defendant’s special motion to strike a complaint is similar to that for
determining the merits of a defendant’s motion for summary judgment. “Both seek to
determine whether a prima facie case has been presented by [the] plaintiff in opposing the
motions.” (Bergman v. Drum (2005) 129 Cal. App. 4th 11, 18; see Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)-
57 [“The ‘probability of prevailing’ is tested by the same standard governing a motion for
summary judgment, nonsuit, or directed verdict”].) If a plaintiff sets forth a prima facie
case in opposition to such motions, the motions must be denied.
The anti-SLAPP statute is broadly construed. (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal. 4th 1106, 1121-1122; Equilon Enterprises, LLC v. Consumer
Cause, Inc., supra, 29 Cal.4th at p. 60, fn. 3.) “‘[A]n anti-SLAPP motion may lie against
a complaint for declaratory relief [citation] . . . .’ [Citation.]” (Mission Springs Water
Dist. v. Verjil (2013) 218 Cal. App. 4th 892, 909; Gotterba v. Travolta (2014) 228
Cal. App. 4th 35, 39-40 [“An anti-SLAPP motion lies against a complaint for declaratory
relief, among other types of causes of action”]; see also Burke, Anti-SLAPP Litigation
(The Rutter Group 2014 §2.17, p. 2-12.)
“We review an order granting an anti-SLAPP motion de novo, applying the same
two-step procedure as the trial court. (Alpha & Omega Development, LP v. Whillock
Contracting, Inc. (2011) 200 Cal. App. 4th 656, 663 [132 Cal. Rptr. 3d 781].) We look at
the pleadings and declarations, accepting as true the evidence that favors the plaintiff and
evaluating the defendant’s evidence ‘“only to determine if it has defeated that submitted
by the plaintiff as a matter of law.” [Citation.]’ (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal. 4th 260, 269, fn. 3 [46 Cal. Rptr. 3d 638, 139 P.3d 30] (Soukup).) The
7
plaintiff’s cause of action needs to have only ‘“minimal merit” [citation]’ to survive an
anti-SLAPP motion. (Id. at p. 291.)” (Cole, supra, 206 Cal.App.4th at p. 1105.)
b) CLRA
The CLRA’s purposes “are to protect consumers against unfair and deceptive
business practices and to provide efficient and economical procedures to secure such
protection.” (Civ. Code, § 1760.) Civil Code section 1780, subdivision (a) of the CLRA
states that “[a]ny consumer who suffers any damage as a result of the use or employment
by any person of a method, act, or practice declared to be unlawful by Section 1770 may
bring an action against that person to recover or obtain any of the following: [¶] (1)
Actual damages, but in no case shall the total award of damages in a class action be less
than one thousand dollars ($1,000). [¶] (2) An order enjoining the methods, acts, or
practices. [¶] (3) Restitution of property. [¶] (4) Punitive damages. [¶] (5) Any other
relief that the court deems proper.” A “consumer” is defined in Civil Code section 1761,
subdivision (d), part of the CLRA, as “an individual who seeks or acquires, by purchase
or lease, any goods or services for personal, family, or household purposes.” “The court
shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed
pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing
defendant upon a finding by the court that the plaintiff’s prosecution of the action was not
in good faith.” (Civ. Code, § 1780, subd. (e).) Civil Code section 1781 provides that the
consumer may maintain a class action under the CLRA.
Civil Code section 1770, subdivision (a) of the CLRA, states, inter alia, that “[t]he
following unfair methods of competition and unfair or deceptive acts or practices
undertaken by any person in a transaction intended to result or which results in the sale or
lease of goods or services to any consumer are unlawful: [¶] . . . [¶] (5) Representing
that goods or services have . . . characteristics, . . . uses, [or] benefits . . . which they do
not have . . . . [¶] . . . [¶] (7) Representing that goods or services are of a particular
standard, quality, or grade, or that goods are of a particular style or model, if they are of
8
another. [¶] . . . [¶] (9) Advertising goods or services with intent not to sell them as
advertised.”
Civil Code section 1782, subdivision (a) of the CLRA requires a notice and
demand as a prerequisite for a legal action for damages. That section provides, “Thirty
days or more prior to the commencement of an action for damages pursuant to this title,
the consumer shall do the following: [¶] (1) Notify the person alleged to have employed
or committed methods, acts, or practices declared unlawful by Section 1770 of the
particular alleged violations of Section 1770. [¶] (2) Demand that the person correct,
repair, replace, or otherwise rectify the goods or services alleged to be in violation of
Section 1770. [¶] The notice shall be in writing and shall be sent by certified or
registered mail, return receipt requested, to the place where the transaction occurred or to
the person’s principal place of business within California.”5 Damages are not awardable
under the CLRA if the defendant proves its violation was not intentional and resulted
from a bona fide error despite reasonable procedures to avoid such an error, and remedies
the violating goods or services. (Civ. Code, § 1784.)
Civil Code section 1752 of the CLRA provides, “The provisions of this title are
not exclusive. The remedies provided herein for violation of any section of this title or
for conduct proscribed by any section of this title shall be in addition to any other
procedures or remedies for any violation or conduct provided for in any other law.” The
CLRA is “‘“a nonexclusive statutory remedy for ‘unfair methods of competition and
unfair or deceptive acts or practices undertaken by any person in a transaction intended to
result or which results in the sale or lease of goods or services to any consumer. . . .’
[Citation.]”’ [Citation.]” (Wang v. Massey Chevrolet (2002) 97 Cal. App. 4th 856, 869.)
Civil Code section 1751 of the CLRA provides, “Any waiver by a consumer of the
provisions of this title is contrary to public policy and shall be unenforceable and void.”
5
An action for injunctive relief under the CLRA may be commenced without
providing the notice that is otherwise required under Civil Code section 1782,
subdivision (a). (Civ. Code, § 1782, subd. (d).)
9
2. Analysis
a) Arising From Protected Activity Under the Anti-SLAPP
Statute
Plaintiff contends that the trial court erred in granting defendants’ special motions
to strike its declaratory relief claim because it did not “arise from” a protected activity,
the CLRA Notice and correspondence, but rather from a dispute as to whether plaintiff
violated the CLRA. According to plaintiff, the CLRA Notice and correspondence were
just evidence of the dispute. We disagree.
Plaintiff’s declaratory relief action refers extensively to the CLRA Notice and
Wasserman’s letter. Section 425.16 defines an “act of that person in furtherance of the
person’s right of petition or free speech under the United States or California Constitution
in connection with a public issue” and includes statements or writings made in judicial
proceedings or made in connection with an issue under consideration or review by a
judicial body. (§ 425.16, subd. (b)(1); see id., subd. (e).) Correspondence “made” ‘in
anticipation of litigation “contemplated in good faith and under serious consideration”’”
can be a petitioning activity protected by the anti-SLAPP statute. (Neville v. Chudacoff
(2008) 160 Cal. App. 4th 1255, 1268.) Thus, statements, writings, and pleadings in
connection with civil litigation or in contemplation of civil litigation are covered by the
anti-SLAPP statute, and that statute does not require any showing that the litigated matter
concerns a matter of public interest. (Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 35.)
The parties do not dispute that the CLRA Notice and Wasserman’s letter are
protected activities and therefore subject to an anti-SLAPP motion. Prelitigation letters
demanding that a party cease from doing certain acts or be subject to a lawsuit based on
that conduct are in preparation or anticipation of litigation and fall within the protection
of section 425.16, subdivision (e)(2) as “written or oral statement[s] or writing[s] made in
connection with an issue under consideration or review by a . . . judicial body . . . .”
(Gotterba v. Travolta, supra, 228 Cal.App.4th at pp. 38, 41.) For example, “[S]ervice of
a three-day notice to quit . . . is [a] protected activity within the meaning of section
10
425.16 because service of the notice is legally required to file an unlawful detainer
action.” (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal. App. 4th
1237, 1245; see Feldman v. 1100 Park Lane Associates (2008) 160 Cal. App. 4th 1467,
1480.)
It is true that even when “a party’s litigation-related activities constitute ‘act[s] in
furtherance of a person’s right of petition or free speech,’ it does not follow that any
claims associated with those activities are subject to the anti-SLAPP statute.” (Kolar v.
Donahue, McIntosh & Hammerton (2006) 145 Cal. App. 4th 1532, 1537.) “’[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.]
Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity
does not entail that it is one arising from such. [Citation.]’” (Episcopal Church Cases
(2009) 45 Cal. 4th 467, 477; see Copenbarger v. Morris Cerullo World Evangelism,
supra, 215 Cal.App.4th at p. 1245 [“‘[t]he pivotal distinction’ is ‘whether an actual or
contemplated unlawful detainer action by a landlord (unquestionably a protected
petitioning activity) merely “preceded” or “triggered” the tenant’s lawsuit, or whether it
was instead the “basis” or “cause” of that suit’”].)
“In general, whether a cause of action is subject to a motion to strike under the
SLAPP statute turns on whether the gravamen of the cause of action targets protected
activity. [Citation.] . . . [¶] Where . . . a cause of action is based on both protected
activity and unprotected activity, it is subject to section 425.16 ‘“unless the protected
conduct is ‘merely incidental’ to the unprotected conduct.”’ [Citations.]” (Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th 1539,
1550-1551.)
Here, the correspondence clearly arose in connection with the litigation that was
contemplated or under serious consideration. Indeed, the CLRA Notice was required
under the CLRA before an action for damages could be filed and thus is part of the
litigation process. But for the CLRA Notice and demand letters, there would be no
dispute. In order to satisfy the first prong, the challenged action must arise from the
11
protected activity. (Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th
at pp. 66-67.) In construing the anti-SLAPP statute broadly, as we must do (id. at p. 60,
fn. 3), we believe that the CLRA Notice and correspondence not only preceded and
triggered the declaratory relief action, but they were also the basis of the cause of the
action. The declaratory relief action therefore arose out of those communications, which
are protected activities.
In CKE Restaurants, Inc. v. Moore (2008) 159 Cal. App. 4th 262, the plaintiff
commenced its declaratory relief action in response to a notice that the defendant had
served on it pursuant to Proposition 65. (Id. at pp. 266-267.) In the defendant’s
Proposition 65 notice, she claimed that the plaintiff served french fries that contained
naphthalene, which is known to cause cancer and reproductive toxicity. (Id. at p. 266, fn.
2.) In its opposition to the defendant’s anti-SLAPP motion, the plaintiff claimed that “its
lawsuit did not arise from the sending of the notices, but from ‘the underlying issues
raised in [the defendant’s] letters—namely the rights and obligations of CKE regarding
its French Fries and other Food Products under Proposition 65. . . .’” (Id. at p. 266.)
The court in CKE Restaurants, Inc. v. Moore, supra, 159 Cal. App. 4th 262,
rejected plaintiff’s contention that the lawsuit did not arise from the sending of the
Proposition 65 notice. (Id. at pp. 267, 271.) In upholding the trial court’s order granting
the defendant’s anti-SLAPP motion, the court stated, “In its complaint, [the plaintiff]
directly challenged the merits of the 60-day notice by referring to and quoting from the
60-day notice. [The plaintiff] requested a judicial determination that its food products
complied with Proposition 65. Instead of using the 60-day period to avoid litigation, [the
plaintiff] used it to commence litigation. Moreover, [the plaintiff] threatened to sue [the
defendants] unless they withdrew their notice. [The plaintiff’s] actions arose entirely
from the filing of the Proposition 65 notice. The trial court recognized this, stating,
‘without the Notice, there would have been no actual, present controversy, and no
controversy at all.’” (Id. at p. 271.)
Although here the record does not provide that plaintiff threatened to sue
defendants unless they withdrew the CLRA Notice, plaintiff alleged in its complaint,
12
“This action is being filed because Defendants threaten to file a lawsuit claiming that
Plaintiff’s advertising violates California’s consumer protection statutes,
including . . . [the CLRA].” Plaintiff referred to the CLRA Notice in the complaint,
alleging, “This dispute was originally raised in [CLRA Notice] claiming that plaintiff’s
advertising for Amberen supposedly violated the CLRA . . . .” In its complaint, plaintiff
also referred to various additional communications the parties had regarding settlement,
including Wasserman’s letter, and in the complaint plaintiff responded specifically to
numerous matters contained in Wasserman’s letter. Therefore, the declaratory relief
action arose from defendants’ protected activities, without which there would have been
no dispute.
In Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal. App. 4th 1110, a
member of a homeowners association criticized the association’s management for its
handling of maintenance issues, suggested that its board be recalled, and requested copies
of its income and expense reports. (Id. at pp. 1112-1113.) The homeowners association
filed an action for declaratory relief against the association member, seeking among other
things, a determination that its allocation of funds was consistent with the association’s
governing documents. (Id. at pp. 1113-1114.)
In affirming the trial court’s grant of the anti-SLAPP motion of the association
member, the court held that the declaratory relief action arose from a protected activity,
stating, “[T]he action in this case was filed after [the homeowners association’s] counsel
threatened to sue [the association member] if she continued to request the financial
documents and refuse to sign the confidentiality agreement. [The association member]
did refuse to sign the agreement, and continued to speak out against [the homeowners
association]. In response, [the homeowners association] filed suit against her seeking
declaratory relief and attorney fees. [¶] It is clear from the evidence that the action in
this case arose from [the association member’s] exercise of her right of free speech in
criticizing and speaking out against the action of [the homeowners association’s] board.”
(Country Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal.App.4th at p. 1118.)
13
Here, similar to Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal. App. 4th
1110, defendants notified plaintiff that it was engaging in conduct that the defendants
believed violated the CLRA. In response, plaintiff filed an action against the defendants
for declaratory relief. Plaintiff’s complaint requested attorney fees against defendants,
and plaintiff alleged, “This action is being filed because Defendants threaten to file a
lawsuit claiming that Plaintiff’s advertising violates the [CLRA].”
Plaintiff relies on City of Cotati v. Cashman (2002) 29 Cal. 4th 69 in contending
that its declaratory relief action did not arise from defendants’ protected activities, but
that case is distinguishable. There, owners of mobile home parks brought a declaratory
relief action against the city in federal court seeking a judicial determination that the
city’s rent control ordinance constituted an unconstitutional taking. (Id. at pp. 71, 72.) In
response, the city sued the park owners in state court, requesting a declaration the rent
control ordinance was constitutional, valid, and enforceable. (Id. at p. 72.) The city
“concede[d] that its purpose in filing the state court action was to gain a more favorable
forum in which to litigate the constitutionality of its mobilehome park rent stabilization
ordinance,” and that “in filing the state court action it intended subsequently to seek to
persuade the federal court to abstain from hearing [the mobile home park owners’] suit.”
(Id. at p. 73.)
The Supreme Court rejected the argument that the “filing of [the] state court action
arose from [the mobile home park owners’] filing of their earlier federal action and,
therefore, fell within the ambit of the anti-SLAPP statute.” (City of Cotati v. Cashman,
supra, 29 Cal.4th at pp. 73, 76-80.) The Supreme Court explained that although “[i]t is
indisputably true . . . [the c]ity’s action was filed shortly after [the mobile home park
owners] filed their claim in federal court,” “the mere fact an action was filed after
protected activity took place does not mean it arose from that activity.” (Id. at pp. 76-77.)
Instead, because the “fundamental basis” for the city’s request for relief was the
“underlying controversy respecting [the rental control] ordinance,” the city’s lawsuit
“therefore was not one arising from [the mobile home park owners’] federal suit” and
“was not subject to a special motion to strike.” (Id. at p. 80.)
14
Although plaintiff’s declaratory relief action here filed after defendant’s protected
activities does not necessarily establish that the lawsuit arose out of the protected
activities, that is not the only factor. As noted above, the complaint refers extensively to
the protected activities. And, unlike in City of Cotati v. Cashman, supra, 29 Cal. 4th 69,
in which the protected activity amounted only to a prior lawsuit, the protected activities
here included a CLRA Notice, without which there would be no controversy. (CKE
Restaurants, Inc. v. Moore, supra, 159 Cal.App.4th at p. 271.) Unlike the state court
declaratory relief complaint in City of Cotati v. Cashman, supra, 29 Cal. 4th 69, the
declaratory relief complaint arose from defendants’ protected activities.
In Gotterba v. Travolta, supra, 228 Cal. App. 4th 35, the court held, as plaintiff
argues here, that a declaratory relief complaint did not arise out of the defendant’s
protected activities, but the protected activities were merely evidence of the parties’
dispute. In that case, the defendants’ counsel sent to the plaintiff a letter demanding that
he stop making statements that were allegedly in breach of a confidentiality agreement.
The letter stated that the statements subjected the plaintiff “to enormous liability and
entitle[d] my client to seek tens of millions of dollars in compensatory and punitive
damages,” and that the plaintiff was to “proceed at [his] peril.” (Id. at p. 38.) The
plaintiff filed an action for declaratory relief, seeking a declaration that the confidentially
agreement was unenforceable. The plaintiff alleged that “a judicial declaration is
necessary so that he may determine his rights and duties under the agreement and because
[the defendants] ‘ha[d] repeatedly threatened legal action’ against him ‘based upon
alleged violations and prospective violations of the purported “confidentiality
agreement.”’” (Gotterba v. Travolta, supra, 228 Cal.App.4th at p. 39.) The defendants
filed an anti-SLAPP motion to strike the declaratory relief action, asserting that the
plaintiff “‘filed this action to prevent [the defendants] from exercising [their] right to
send [prelitigation demand] letters and/or suing to enforce the terms of [a prior
agreement].’” (Id. at pp. 39-40.)
In affirming the trial court’s order denying the motion, the court stated, “Contrary
to [the defendants’] position and arguments, [the plaintiff’s] complaint is not based upon
15
[the defendants’] sabre-rattling demand letters. The complaint seeks declaratory relief
regarding the validity of the asserted termination agreements and not the propriety of [the
defendants’] demand letters. [¶] . . . [¶] The demand letters do not form the ‘actual
controversy upon which to base the claim for declaratory relief,’ but are merely evidence
that a controversy between the parties exists. [Citation.] That ‘protected activity may
lurk in the background—and may explain why the rift between the parties arose in the
first place—does not transform a [contract] dispute into a SLAPP suit.’ [Citation.]
[¶] The lawsuit also does not seek to curtail [the defendants’] right to send demand
letters.” (Gotterba v. Travolta, supra, 228 Cal.App.4th at pp. 41-42.)
Here, the protected activities include defendants sending of the CLRA Notice. It
is not merely evidence of the dispute. The usual demand letters involving liability are not
a prerequisite to filing a lawsuit seeking damages. By contrast, the CLRA Notice here
was required to be sent by the consumer before the consumer could file a lawsuit for
damages under the CLRA. Unlike a demand letter, therefore, the CLRA Notice was part
of the litigation process. Indeed, without the CLRA Notice, “‘there would have been no
actual, present controversy, and no controversy at all.’” (CKE Restaurants, Inc. v.
Moore, supra, 159 Cal.App.4th at p. 271.)
In Copenbarger v. Morris Cerullo World Evangelism, supra, 215 Cal. App. 4th
1237, a sublessee of a real property lease filed a lawsuit for, inter alia, declaratory relief
against the sublessor after the sublessor served on the sublessee a 30-day notice to cure
certain maintenance and other related defaults under the related lease agreements, and a
three-day notice required for an unlawful detainer action. (Id. at pp. 1241-1242, 1245.)
The sublessee alleged that a controversy existed among the parties “‘concerning their
respective rights and duties arising under’” the lease agreements and a quitclaim deed,
that it had no duty to repair the improvements to the property, that the 30-day notice and
the three-day notice were premature and did not comply with the lease agreements, and
that it was the owner of the improvements to the property. (Id. at p. 1242.) In reversing
the trial court’s order granting the sublessor’s anti-SLAPP motion, the court held that,
“while the three-day notice might have triggered the [declaratory relief] complaint, the
16
evidence in the record demonstrates the complaint was based on an underlying dispute
over [sublessee’s] repair and maintenance obligations under the sublease and other
unprotected activities.” (Id. at p. 1240.) In reaching its conclusion, the court emphasized
that, “‘“[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.]” (Id. at p. 1245.) The court concluded that the 30-day notice and the
sublessee’s letter in response constituted evidence that there was a dispute between the
parties. (Id. at p. 1245.)
Copenbarger v. Morris Cerullo World Evangelism, supra, 215 Cal. App. 4th 1237
is distinguishable. In that case, presumably the dispute between the parties arose before
the 30-day notice. Here, the CLRA Notice created the disputes between the parties.
Also, unlike in that case, plaintiff here specifically alleged in the declaratory relief action
that it was “being filed because Defendants threatened to file a lawsuit claiming that
Plaintiff’s advertising violates California’s consumer protection statutes, including . . .
[the CLRA].” And, as noted above, the complaint extensively refers to the protected
activities—the CLRA Notice and related correspondence. Thus, the declaratory relief
action arose from the protected activities.6
6
Other cases similar to Copenbarger v. Morris Cerullo World Evangelism, supra,
215 Cal. App. 4th 1237 cited in that case are distinguishable for the same reasons. (See
Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal. App. 4th 97; Clark v. Mazgani
(2009) 170 Cal. App. 4th 1281; Marlin v. Aimco Venezia, LLC (2007) 154 Cal. App. 4th
154 (Marlin).) For example, in Marlin, landlords filed a notice under the Ellis Act (Gov.
Code, § 7060 et seq.) of their intentions to remove permanently apartments from the
rental market and served tenants with a notice to vacate their units. (Id. at p. 157.) The
tenants brought a declaratory relief action seeking a declaration of rights under the Ellis
Act. (Ibid.) The Court of Appeal held that the action was not subject to the anti-SLAPP
statute because the cause of tenants’ action was the landlords’ wrongful reliance on the
Ellis Act to terminate their tenancy. (Id. at pp. 161-162.) Terminating a tenancy is not a
protected activity. (Id. at p. 161.) There, the declaratory relief action concerned a dispute
as to the applicability of the Ellis Act. Here, plaintiff brought the action because
defendants’ threatened to sue it. The claims and demands were protected activities—not
an act such as terminating a tenancy.
17
As to the law firm defendants, the conclusion that the declaratory relief action
arose from defendants’ protected activities is even more compelling than it is for Nunez.
An attorney has standing to bring a special motion to strike a cause of action arising from
petitioning activity undertaken on behalf of the attorney’s client. (Rusheen v. Cohen
(2006) 37 Cal. 4th 1048, 1056; Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1262,
fn. 6.) The declaratory relief complaint here alleged that a dispute existed because
defendants wrongfully asserted that plaintiff’s advertising was in violation of the CLRA.
Because the law firm defendants are not consumers under the CLRA, they are unable to
sue under the CLRA. There is, therefore, no actual controversy between them and
plaintiff concerning any alleged violations of the CLRA. Any argument by plaintiff that
the CLRA Notice and Wasserman’s letter would be evidence that a controversy exists
between it and the law firm defendants is unavailing.
b) Probability of Plaintiff Prevailing on the Declaratory Relief
Claim
Plaintiff contends that it demonstrated a probability of prevailing on its declaratory
relief claim. We disagree.
“To demonstrate a probability of prevailing on the merits, the plaintiff must show
that the complaint is legally sufficient and must present a prima facie showing of facts
that, if believed by the trier of fact, would support a judgment in the plaintiff’s favor.
[Citations.] The plaintiff’s showing of facts must consist of evidence that would be
admissible at trial. [Citation.].” (Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th
1337, 1346; see College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 719-720,
fn. 5; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568, 585.)
As noted, “‘[A]n anti-SLAPP motion may lie against a complaint for declaratory
relief [citation] . . . .’ [Citation.] Moreover, ‘the mere existence of a controversy is
insufficient to overcome an anti-SLAPP motion against a claim for declaratory relief. [¶]
To defeat an anti-SLAPP motion, the plaintiff must also make a prima facie evidentiary
showing to sustain a judgment in the plaintiff’s favor. [Citation.] In other words, for a
18
declaratory relief action to survive an anti-SLAPP motion, the plaintiff must introduce
substantial evidence that would support a judgment of relief made in the plaintiff’s
favor.’ [Citations.]”7 (Mission Springs Water Dist. v. Verjil, supra, 218 Cal.App.4th at
p. 909.)
Defendants contend, and the trial court found, that the litigation privilege
precludes plaintiff’s claim for declaratory relief. That privilege does not.
The litigation privilege is set forth in Civil Code section 47, subdivision (b), which
section provides, in pertinent part: “A privileged publication or broadcast is one made:
[¶] . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) in the initiation or course of any other
proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with
Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, . . . .” The litigation
privilege applies “‘to bar tort actions based on privileged communications, excepting
only the tort of malicious prosecution.’ [Citation.]” (McClintock v. West (2013) 219
Cal. App. 4th 540, 554, italics added; see Hagberg v. California Federal Bank (2004) 32
Cal. 4th 350, 358, 360.) “[T]he litigation privilege shields a [person] from liability based
on” the communication. (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal. App. 4th
418, 424, citing Williams v. Taylor (1982) 129 Cal. App. 3d 745, 753, italics added.)
Plaintiff’s complaint for declaratory relief does not seek to hold defendants liable for a
tort based on the CLRA Notice or any other pre-lawsuit communication. Plaintiff instead
seeks a declaration regarding “the accuracy and legality” of plaintiff’s advertising of
Amberen. Thus, the litigation privilege does not apply.
We can decide a matter on grounds different than that invoked by the trial court.
“A reviewing court will uphold a judgment if it is correct for any reason ‘“regardless of
the correctness of [its] grounds . . . .” [Citation.] “It is judicial action and not judicial
reasoning which is the subject of review . . . .”’ [Citation.]” (People ex rel. Gallo v.
7
On appeal, defendants do not dispute that in opposition to the motion, plaintiff
provided substantial evidence in support of plaintiff’s contention that its advertising of
Amberen was not false and misleading.
19
Acuna (1997) 14 Cal. 4th 1090, 1119, fn. 4.) Plaintiff cannot demonstrate a probability of
prevailing on its declaratory relief claim because it may not sue for declaratory relief
regarding a claim for damages under the CLRA.
1) Cases
Defendants rely on Filarsky, supra, 28 Cal. 4th 419, in which a city, after refusing
to disclose to a requesting citizen certain documents under the California Public Records
Act (Gov. Code, § 6250 et seq.), sought declaratory relief as to the propriety of its
refusal. (Filarsky, supra, 28 Cal.4th at pp. 423-424.) In directing the Court of Appeal to
issue a writ of mandate compelling the trial court to vacate its order granting declaratory
relief and to enter an order sustaining the citizen’s demurrer to the complaint, the
Supreme Court stated, “[T]here are at least four important distinctions between
proceedings arising under the [California Public Records] Act and ordinary declaratory
relief actions. First, under the [California Public Records] Act, only a person seeking
disclosure—not the public agency in possession of the records—may seek a judicial
declaration regarding the agency’s obligation to disclose a document. In an ordinary
declaratory relief action, however, either party to a controversy may initiate the action.
Second, in a proceeding under the [California Public Records] Act, the court must
schedule the filing of responsive pleadings and hearings in order to reach a decision as
soon as possible. Such a requirement is not imposed upon courts in an ordinary
declaratory relief action. Third, if a person initiates a proceeding under the [California
Public Records] Act, he or she must be awarded attorney fees and costs if he or she
prevails, and the defendant public agency cannot recover fees or costs unless the
proceeding is frivolous. In contrast, in a declaratory relief action, a member of the public
seeking disclosure cannot recover attorney fees if he or she prevails, and a prevailing
public agency may recover costs even if the individual’s request for disclosure is not
frivolous. Fourth, appellate review of the superior court’s ruling in a proceeding under
the [California Public Records] Act must be by a petition for writ of mandate filed no
more than 40 days after notice of the ruling. On the other hand, a public agency may
20
appeal from a declaratory judgment requiring disclosure of the records, thus delaying
disclosure for a significant period of time. [¶] These distinctions establish that
permitting a public agency to file a preemptive declaratory relief action to determine its
obligation to disclose records to a member of the public would eliminate important
incentives and protections for individuals requesting public records. Members of the
public could be discouraged from requesting records, because a simple request for
disclosure and a denial by the public agency could require the individual to defend a civil
action in which he or she would be liable for costs if the agency prevailed, and in which
the individual would not recoup attorney fees if he or she succeeded.” (Id. at pp. 428-
429.)
Plaintiff cites Baxter Healthcare Corp. v. Denton (2004) 120 Cal. App. 4th 333
(Baxter), which concerned the Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65) (Health and Saf. Code, §§ 25249.5 through 25249.13). In that case, the
plaintiff manufactured medical devices that contained a chemical compound that caused
liver cancer in rats and mice and was on “Proposition 65’s list of chemicals known to the
state to cause cancer or reproductive toxicity.” (Baxter, supra, 120 Cal.App.4th at pp.
347-348.) The Office of Environmental Health Hazard Assessment (OEHHA), the lead
agency charged with implementing Proposition 65, denied the plaintiff’s administrative
petition for a declaration that the plaintiff did not have to provide the consumers with
warnings under Proposition 65 regarding its medical devices. (Id. at p. 348.) The plaintiff
filed a complaint against the OEHHA stating a single cause of action for declaratory
relief, in which complaint the plaintiff sought a determination that the chemical
compound posed no significant risk of cancer to humans, and therefore no cancer
warning was required under Proposition 65. (Id. at pp. 348-350.) The trial court granted
declaratory relief in the plaintiff’s favor. (Id. at pp. 350-351.)
In affirming the judgment, the court in Baxter, supra, 120 Cal.App.4th at page 359
held that “OEHHA has failed to establish that Proposition 65 does not allow a business to
bring a declaratory relief action under Code of Civil Procedure section 1060 for the
purpose of determining whether the business is exempted from the warning requirement
21
of Proposition 65.” The court reasoned that the provisions of Proposition 65 do not share
the characteristics of the provisions of the California Public Records Act involved in
Filarsky, supra, 28 Cal. 4th 419, in which the court found to be persuasive indicators of a
legislative intent to exclude declaratory relief actions under section 1060. (Baxter, supra,
120 Cal.App.4th at p. 357.) The court in Baxter stated that, unlike the California Public
Records Act, Proposition 65 did not contain specific statutory mechanisms for seeking
declaratory relief, nor did it have any “procedural protections”8 for the public that would
be circumvented if persons were permitted to seek preemptive declaratory relief under
section 1060. (Ibid.) The court also stated that “the only way for a business to obtain a
binding preenforcement determination” regarding Proposition 65 was pursuant to a
declaratory relief judgment from the superior court. (Id. at p. 359.) The court held that
the OEHHA failed adequately to support its contention that a preemptive declaratory
relief would “‘eliminate many of the incentives and protections in Proposition 65’s
enforcement provision and would thwart its purposes . . . .’” (Id. at p. 357.)
The court in Baxter, supra, 120 Cal.App.4th at page 359 also held that there was
an actual controversy between OEHHA and the plaintiff and, therefore, the trial court did
not abuse its discretion in granting declaratory relief. An irreconcilable controversy
existed between OEHHA and the plaintiff over the OEHHA placing the chemical
compound contained in the medical devices on Proposition 65’s list of chemicals that
cause cancer or reproductive toxicity. (Id. at p. 362.) Because of that irreconcilable
difference, the plaintiff “was compelled either to provide a stigmatizing warning
regarding its products even though it could show [the chemical compound in its product]
does not cause cancer in humans, or risk being subjected to an enforcement action and
costly civil penalty if its . . . theory is rejected in an enforcement action. [¶] Declaratory
relief was necessary and proper to prevent [the plaintiff] from having to make this
8
The court did not identify the “procedural protections” of the California Public
Records Act to which is it was referring, and the court in Filarsky, supra, 28 Cal. 4th 419
did not use that phrase.
22
Hobson’s choice [citation] and to enable [the plaintiff] to obtain a declaration of its rights
and obligations under the Act.” (Ibid.)
Plaintiff also relies on American Meat Institute v. Leeman (2009) 180 Cal. App. 4th
728 (American Meat), in which the defendant sent required notices under Proposition 65
to, inter alia, eight different meat processors and retailers. (Id. at pp. 738-739.) The
notices stated that the meat processors and retailers were selling either ground beef or
liver products that contained chemicals identified by the state as being carcinogens and
reproductive toxins, without supplying the warnings required by Proposition 65. (Ibid.)
The eight alleged violators were represented by trade associations. (Id. at p. 738.) The
trade associations filed a declaratory relief action against the defendant seeking
declaratory relief on behalf of all of the trade associations’ members that “as applied to
meat and meat products,” the warning requirement of Proposition 65 was preempted by
the Federal Meat Inspection Act (21 U.S.C. § 601 et seq.). (Id. at p. 739.)
The trial court overruled the defendant’s demurrer on the ground that “sufficient
facts [had] been pled to establish an actual controversy.” (American Meat, supra, 180
Cal.App.4th at pp. 735, 746.) Subsequently, the trial court granted summary judgment in
favor of the trade associations, concluding that under the circumstances, the Federal Meat
Inspection Act preempted the warning requirements of Proposition 65. (Id. at p. 740.)
In affirming the trial court’s orders, the court in American Meat, supra, 180
Cal.App.4th at page 742 stated that “the Notices gave rise to an actual controversy
between [the defendant] and the Trade Associations’ members.” (Fn. omitted.) The
court stated that because Proposition 65 provided daily penalties, “it was clearly in the
interest of the Trade Associations to take action as soon as possible to determine what, if
any, obligations were imposed on their members by Proposition 65.” (Ibid.)
The court in American Meat, supra, 180 Cal.App.4th at pages 741 through 742
also stated, “One purpose of declaratory relief is ‘“‘to liquidate doubts with respect to
uncertainties or controversies which might otherwise result in subsequent litigation.’”’
[Citation.] ‘“‘One test of the right to institute proceedings for declaratory judgment is the
necessity of present adjudication as a guide for plaintiff’s future conduct in order to
23
preserve his legal rights.’”’ [Citation.]” Because there was no enforcement action under
Proposition 65, the court stated, “[T]he Trade Associations’ members [were] in need of a
ruling to guide their future conduct and enable them to avoid serious financial
consequences . . . .” (Id. at p. 744.)
2) Analysis of Cases
There are various aspects of Filarsky, supra, 28 Cal. 4th 419, Baxter, supra, 120
Cal. App. 4th 333, and American Meat, supra, 180 Cal. App. 4th 728, that both support and
undermine the conclusion that a declaratory relief action may not be maintained by a
potential defendant in a CLRA damages action to establish that there was no violation of
the CLRA. For example, Filarsky, supra, 28 Cal. 4th 419, in which the Supreme Court
directed the Court of Appeal to issue a writ of mandate compelling the trial court to enter
an order sustaining the citizen’s demurrer to the declaratory relief complaint, concerned
the California Public Records Act. The CLRA, the statutory scheme involved here,
provides for award of attorney fees and costs if the complaining party prevails (Civ.
Code, § 1780, subd. (e)),9 a provision similar to that provided in the California Public
Records Act. And as the California Public Records Act, the CLRA has a provision to
expedite lawsuits brought under its provisions. Under Civil Code section 1781,
subdivision (c), the consumer who brings the lawsuit as a class action, as plaintiff has
done here, can on 10 days’ notice request the trial court to hold a hearing to determine,
among other things, whether “[t]he action is without merit or there is a defense to the
action.” On the other hand, unlike the California Public Records Act, which provides
that trial court’s ruling is subject to expedited appellate review, and therefore a direct
claim under that statutory scheme would be undermined by the filing of a declaratory
9
Indeed, a consumer cannot waive any provision within the CLRA (Civ. Code, §
1751), and that waiver restriction presumably includes attorney fees. By contrast, “in an
ordinary declaratory relief action, the prevailing party is entitled to court costs [citations],
but the prevailing party is not entitled to attorney fees in the absence of a contractual
provision so providing [citation].” (Filarsky, supra, 28 Cal. 4th 419, 428.)
24
relief action, appellate review of a judgment entered pursuant to the CLRA is not
reviewed on an expedited basis; it is reviewed on appeal.
American Meat, supra, 180 Cal. App. 4th 728, and Baxter, supra, 120 Cal. App. 4th
333, both concerned Proposition 65. In American Meat, the court affirmed the trial
court’s order overruling the defendant’s demurrer to the declaratory relief complaint.
(American Meat, supra, 180 Cal.App.4th at p. 735.) In Baxter, the court affirmed the
judgment following the trial court’s order granting declaratory relief in the plaintiff’s
favor. (Baxter, supra, 120 Cal.App.4th at pp. 350-351.)
As in Proposition 65, in which the statutory scheme provides for daily penalties
that can be imposed on a person who violates Proposition 65, so too would a party expose
itself to greater or additional damages claims for violating the CLRA the longer the
matter is unresolved. Similar to the plaintiff in Baxter, supra, 120 Cal. App. 4th 333,
plaintiff here was subject to a Hobson’s choice; absent the filing of a declaratory relief
action, plaintiff either had to revise its advertising despite believing that it was supported
by scientific evidence, or wait to be sued by defendants or other consumers. On the other
hand, there is a mandatory attorney fees provision in the CLRA (Civ. Code, § 1780, subd.
(e)); there is not a similar provision in Proposition 65.
The court in Filarsky, supra, 28 Cal. 4th 419 emphasized that circumventing a
person’s mandatory right under a statute to recover attorney fees if he or she prevails in
an action under that statutory scheme is an important consideration in determining if a
declaratory relief action undermines the statue. (Id. at p. 429.) Plaintiff’s declaratory
relief action here eliminates an important incentive afforded by the CLRA, mandatory
attorneys fees, and would thwart the CLRA’s purpose. As noted above, the purposes of
the CLRA “are to protect consumers against unfair and deceptive business practices and
to provide efficient and economical procedures to secure such protection.” (Civ. Code, §
1760.) Also, a critical procedure under the CLRA is the notice provision that allows the
prospective defendant to remedy any violations of the statute in order to avoid a lawsuit
seeking damages. (Civ. Code, § 1782.)
25
As noted above, the CLRA, like the California Public Records Act, has a provision
to expedite lawsuits brought under its provisions. Moreover, only a consumer may
maintain an action under the CLRA. In addition, the declaratory relief action is against
one consumer—Nunez—thereby eliminating the class action rights of the consumers who
would have been joined in the CLRA class action. Also, under Civil Code section 1784
of the CLRA, it is a defense to a claim for damages if the violation of the CLRA was not
intentional, but a declaratory relief action would not address or resolve that issue. Under
the CLRA, injunctive relief may be awarded (Civ. Code, § 1781), but injunctive relief is
not available in a declaratory relief action under section 1060. It is true that a cross-
complaint can invoke these remedies. But then, there is no reason for declaratory relief.
Once a cross-complaint for damages under the CLRA is filed, the declaratory relief
action would be rendered unnecessary because the cross-complaint presumably would
include the issue of whether the plaintiff (i.e., the cross-defendant) was violating the
CLRA.
It is inequitable for a consumer to be forced to defend a declaratory relief action,
divorced of the incentives and rights under the CLRA, merely because the consumer sent
a CLRA notice, and regardless of whether that consumer decided ultimately to file a
lawsuit under the CLRA. Indeed, the consumer may review responses to the CLRA
Notice and decide not to bring an action. A preemptive request for a declaration of rights
would compel the parties to litigate the matter. Thus, consumers would be deterred from
making claims under the CLRA.
The test set forth in Filarsky, supra, 28 Cal. 4th 419 is whether the declaratory
relief action undermines the statute in question. In view of the factors to which we point,
we believe it does in this case. Because, as a matter of law, plaintiff was precluded from
filing a declaratory relief claim, it cannot demonstrate a probability of prevailing on that
claim.
As to the law firm defendants, plaintiff cannot establish that it had a probability of
prevailing on its declaratory relief claim against them because there is no actual
controversy between them and plaintiff. “‘The fundamental basis of declaratory relief is
26
the existence of an actual, present controversy over a proper subject.’ [Citation.]” (City
of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.) Section 1060 states that “[a]ny
person . . . who desires a declaration of his or her rights or duties with respect to
another . . . may, in cases of actual controversy relating to the legal rights and duties of
the respective parties, bring an original action . . . for a declaration of his or her rights and
duties . . . .”
Plaintiff’s declaratory relief action is based on Nunez’s claim that plaintiff’s
advertising for Amberen violated the CLRA and caused her damages. Civil Code section
1780, however, provides that only consumers who have suffered damage may bring an
action under the CLRA. As noted above, Civil Code section 1780, subdivision (a), states
that, “Any consumer who suffers any damage as a result of the use or employment by any
person of a method, act, or practice declared to be unlawful by Section 1770 may bring
an action against that person to recover or obtain any of the following: [¶] (1) Actual
damages, but in no case shall the total award of damages in a class action be less than one
thousand dollars ($1,000). [¶] (2) An order enjoining the methods, acts, or practices.
[¶] (3) Restitution of property. [¶] (4) Punitive damages. [¶] (5) Any other relief that
the court deems proper.” A “consumer” is defined in Civil Code section 1761,
subdivision (d), part of the CLRA, as “an individual who seeks or acquires, by purchase
or lease, any goods or services for personal, family, or household purposes.”
The law firm defendants represented Nunez with respect to her claim and provided
plaintiff with several prelawsuit communications regarding Nunez’s claim. Regardless of
whether they were the “driving force” behind the CLRA claims, as plaintiff contends,
they are not consumers. Thus, there is no actual controversy between plaintiff and the
law firm defendants. Accordingly, plaintiff cannot prevail on its claims against the law
firm defendants.
B. Attorney Fees
Plaintiff contends that the trial court erred because it awarded defendants
excessive attorney fees on their anti-SLAPP motions. It contended before the trial court
27
that the attorney fees requested were unreasonably inflated and that the time records were
inadequate.
Section 425.16, subdivision (c) provides that “a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney’s fees and costs.” “The
fee-shifting provision was apparently intended to discourage such strategic lawsuits
against public participation by imposing the litigation costs on the party seeking to ‘chill
the valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.’ [Citation.] The fee-shifting provision also encourages private
representation in SLAPP cases, including situations when a SLAPP defendant is unable
to afford fees or the lack of potential monetary damages precludes a standard contingency
fee arrangement.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131.)
A trial court, in assessing attorney fees, “begins with a touchstone or lodestar
figure . . . . We expressly approved the use of prevailing hourly rates as a basis for the
lodestar, noting that anchoring the calculation of attorney fees to the lodestar adjustment
method ‘“is the only way of approaching the problem that can claim objectivity, a claim
which is obviously vital to the prestige of the bar and the courts.’” [Citation.] [¶] [The
lodestar] may be adjusted by the court . . . .” (Ketchum v. Moses, supra, 24 Cal.4th at pp.
1131-1132.)
Defendants had the burden of establishing their entitlement to attorney fees in
connection with their anti-SLAPP motions, including the reasonable amount of those
fees. (Christian Research Institute v. Alnor (2008) 165 Cal. App. 4th 1315, 1320.)
“‘[T]he court may require [a] defendant[] to produce records sufficient to provide “‘a
proper basis for determining how much time was spent on particular claims.’” [Citation.]
The court also may properly reduce compensation on account of any failure to maintain
appropriate time records. [Citation.]’ [Citation.] The evidence should allow the court to
consider whether the case was overstaffed, how much time the attorneys spent on
particular claims, and whether the hours were reasonably expended. [Citation].” (Ibid.)
An attorney fee award must be based on a “‘careful compilation of the time spent and
reasonable hourly compensation of each attorney . . . involved in the presentation of the
28
case.’” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1131-1132.) “We review the amount
of attorney fees awarded for abuse of discretion. [Citation.] A trial court’s attorney fee
award will not be set aside ‘absent a showing that it is manifestly excessive in the
circumstances.’ [Citation.]” (Raining Data Corp. v. Barrenechea (2009) 175
Cal. App. 4th 1363, 1375.)
Plaintiff relies on Bankes v. Lucas (1992) 9 Cal. App. 4th 365, 371-372 and Nazemi
v. Tseng (1992) 5 Cal. App. 4th 1633, 1637-1641 (both of which cases were superseded by
statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th
1187, 119) in support of its contention that “a lack of evidence [to support a fee award] is
a legal defect subject to de novo review.” These cases do not support plaintiff’s
contention. In Nazemi v. Tseng, supra, 5 Cal. App. 4th 1633, the court reversed the trial
court’s award of attorney fees because the trial court “abused its . . . discretion” by
considering defendant’s untimely motion for attorney fees. (Id. at pp. 1640-1641.) In
Bankes v. Lucas, supra, 9 Cal. App. 4th 365, the court reversed the trial court’s award of
attorney fees to property owners as prevailing parties because they were not the
prevailing parties and, citing Nazemi v. Tseng, supra, 5 Cal. App. 4th 1633, their motion
for attorney fees was untimely. (Id. at pp. 369-371.)
The trial court awarded $104,293.75 in attorney fees to Nunez and Newport, and
$57,765.63 in attorney fees to Wasserman, for a total award of $162,050.38. In arriving
at the award of attorney fees, the trial court applied a “multiplier of 1.25” to “reflect the
contingent nature of the fees.”
Plaintiff contends that defendants submitted “block billing” of their attorney fees
that did not amount to careful compilations of the time spent. The evidence submitted in
support of the motions for attorney fees, however, was sufficient to allow the trial court
to determine “whether the case was overstaffed, how much time the attorneys spent on
particular claims, and whether the hours were reasonably expended.” (Christian
Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)
Plaintiff similarly contends that defendants failed to meet their burden of proof to
document the hours expended because they submitted declarations of counsel as to the
29
time they spent of various tasks and “did not even supply time records to [support]
their . . . after-the-fact time estimates.” A defendant, however, can carry its burden of
establishing its entitlement to attorney fees by submitting a declaration from counsel
instead of billing records or invoices. (City of Colton v. Singletary (2012) 206
Cal. App. 4th 751, 785.)
Plaintiff contends that the amount awarded to defendants for attorney fees—
$104,293.75 to Nunez and Newport, and $57,765.63 to Wasserman—was excessive.10
“In challenging attorney fees as excessive because too many hours of work are claimed, it
is the burden of the challenging party to point to the specific items challenged, with a
sufficient argument and citations to the evidence. General arguments that fees claimed
are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges
in the trial court forfeits the claim on appeal.” (Premier Medical Management Systems,
Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564.) The trial court
was familiar with the issues in this case. Because plaintiff did not to point to the specific
items challenged, with a sufficient argument and citations to the evidence, in support of
its contention that the amount of awarded attorney fees was excessive, plaintiff forfeited
this claim on appeal. (Ibid.)
Plaintiff contends that the attorney fee award should be reduced to $15,000,
apparently in reliance on the reduction of the attorney fee awards in other cases.
However, “each fee application under section 425.16, subdivision (c) must be assessed on
its own merits . . . taking into account what is reasonable under the circumstances.
[Citation.]” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee
Assn., supra, 163 Cal.App.4th at p. 561.) Because each attorney fee application stands on
its own, we cannot reduce the attorney fee award to $15,000 based on the awards made in
other cases.
Plaintiff argues that the multiplier of 1.25 was erroneous because “the requested
amount was already enormous, and . . . [the] requested fees were excessive.” But this
10
Plaintiff does not contend that the trial court erred in approving and applying the
hourly rates charged by defendants’ attorneys.
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contention has nothing to do with the multiplier. Among the factors that may be
considered by the trial court in adjusting the lodestar are the contingent nature of the fee
award, the novelty and difficulty of the questions involved, and the skill displayed in
presenting them. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1131-1132; Serrano v.
Priest (1977) 20 Cal. 3d 25, 49.) Excessive underlying attorney fees are not included
among the factors listed in Ketchum and Serrano that may be considered by the trial court
in awarding a multiplier.
Plaintiff did not raise before the trial court that any specific items did not relate to
the anti-SLAPP motions. (See Christian Research Institute v. Alnor, supra, 165
Cal.App.4th at p. 1320.) Thus plaintiff has forfeited any such contention. Moreover, we
cannot ascertain from the record if any such items were included in the fee award.
Because defendants prevailed on this appeal, they are entitled to recover their
appellate attorney fees. “A statute authorizing an attorney fee award at the trial court
level includes appellate attorney fees unless the statute specifically provides otherwise.
[Citations.] Under section 425.16, subdivision (c), a prevailing defendant on a special
motion to strike a SLAPP suit ‘shall be entitled to recover his or her attorney’s fees and
costs.’ The statute does not preclude recovery of appellate attorney fees by a prevailing
defendant-respondent; hence they are recoverable.” (Evans v. Unkow (1995) 38
Cal. App. 4th 1490, 1499-1500; Lucky United Properties Investment, Inc. v. Lee (2010)
185 Cal. App. 4th 125, 138-139.) On remand, the trial court shall determine the
reasonable amount of fees to be awarded for attorney services rendered on the appeal.
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DISPOSITION
The orders granting defendants’ anti-SLAPP motions and awards of attorney fees
are affirmed. As the prevailing parties on the special motions to strike, defendants are
entitled to recover from plaintiff the reasonable amount of attorney fees and costs
incurred on appeal pursuant to section 425.16, subdivision (c)(1). We remand the matter
to the trial court to determine the reasonable amount of such attorney fees and costs.
CERTIFIED FOR PUBLICATION
MOSK, J.
We concur:
TURNER, P. J.
GOODMAN, J.

Judge of Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
32