D and M General Constructor v. Daneshrad CA2/4

Filed 12/12/22 D and M General Constructor v. Daneshrad CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
D AND M GENERAL
B317336
CONSTRUCTOR, INC.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
v. 21STCV18885)
JOSEPH DANESHRAD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Law Office of Roozy J. Saviss and Roozy J. Saviss for
Defendant and Appellant.
Quantum Law Group, Jonathan M. Deer, Steven Morris,
and Dina Adham for Plaintiff and Respondent.
INTRODUCTION
Joseph Daneshrad (Daneshrad) represented D and M
General Constructor, Inc. (D&M) in D and M General
Constructor, Inc. v. Eshaghian, et al., Case Number BC609762
(the underlying matter). D&M subsequently sued Daneshrad for
legal malpractice based on Daneshrad’s alleged failure to
competently represent it in the underlying matter. In response,
Daneshrad moved to strike the complaint under Code of Civil
Procedure section 425.16, the anti-SLAPP statute.1 The trial
court denied the motion in all respects except for striking
allegations in two paragraphs of the complaint in support of
D&M’s first cause of action for legal malpractice that Daneshrad
improperly filed a notice of lien.
On appeal, Daneshrad contends the trial court erred by not
striking the entire complaint. He argues the acts of filing a
motion to withdraw and a notice of lien are protected activities
under the anti-SLAPP statute, and D&M has not demonstrated a
probability of prevailing at trial. We conclude D&M’s claims arise
from Daneshrad’s alleged legal malpractice, and not from
petitioning activity protected under the anti-SLAPP statute (with
the exception of the allegations the trial court struck regarding
the notice of lien). Accordingly, we affirm the trial court’s order.
1 SLAPP is the acronym for strategic lawsuit against public
participation. All further undesignated statutory references are
to the Code of Civil Procedure.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint’s Allegations
The complaint alleges the following facts. D&M engaged
Daneshrad to represent it in the underlying matter. Daneshrad
failed, however, to prosecute the matter reasonably and diligently
on behalf of D&M. Specifically, Daneshrad failed to keep D&M
reasonably informed of developments in the case; did not inform
D&M regarding discovery which was propounded, responses
which were due, and motions to compel which were filed against
D&M; refused to follow the client’s direction with respect to
litigation and settlement; charged D&M for services which were
unnecessary and not competently performed; dismissed and
released parties who had liability and did not obtain his client’s
informed consent before doing so; failed to properly prosecute
discovery or to affirmatively present D&M’s case in response to
discovery propounded on it; and failed to take any depositions
and failed to propound sufficient discovery. The complaint further
alleged Daneshrad “filed a lien in the case without stating an
amount when he knew the amount of the lien in an effort to
interfere with D&M’s settlement.”
Shortly before trial, Daneshrad filed a motion to withdraw.
The complaint alleges Daneshrad knew that filing the motion so
close to the trial date “would cause D&M’s credibility to be
diminished and [make] its prospect at settlement with the
opposing sides more difficult.”
Based on these allegations, D&M sued Daneshrad for
professional negligence, breach of contract, and declaratory relief.
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B. The Special Motion to Strike
Daneshad moved to strike the entire complaint on the
ground that “the gravamen of the conduct complained of is
[Daneshrad’s] act of filing a Motion to Withdraw and a Notice of
Lien,” which constitutes protected activity under section 425.16,
subdivision (e)(2). In opposition, D&M argued Daneshrad’s
“negligent representation of D&M does not ‘arise from’ acts in
furtherance of his constitutional right of free speech and,
therefore, the anti-SLAPP statute does not apply here.”
After a hearing on the special motion to strike, the trial
court denied the motion to the extent it sought to strike the
entire complaint, finding the complaint’s allegations regarding
Daneshrad’s filing a motion to withdraw and notice of lien to
“comprise a relatively minor part of the complaint.”
Although Daneshrad sought only to strike the entire
complaint, the trial court went on to construe the motion as
seeking to strike individual allegations “in the exercise of its
discretion in order to avoid future litigation[.]” Regarding the
motion to withdraw, the court explained: “The [c]ourt denies the
motion to strike allegations that [Daneshrad] filed a motion to
withdraw because this allegation is ‘only incidental to a cause of
action based essentially on nonprotected activity . . . .’ [Citation.]
In fact, [D&M] alleges that [Daneshrad] ‘failed to prosecute the
matter reasonably and diligently’ and ‘effectively abandoned the
case.’ [Citation.]. The motion [to withdraw] is incidental to these
allegations.” Regarding the notice of lien, the court granted the
motion to strike to the extent D&M sought to predicate the
malpractice claim on allegations that Daneshrad filed a notice of
lien for improper purposes because “[a]n attorney filing a lien to
protect his financial interest in a case is protected activity, even if
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the lien is not completed properly.” The court denied the motion,
however, to the extent D&M sought a declaratory judgment
regarding whether the lien itself was void because “the filing of
the lien is incidental to the cause of action [for declaratory relief],
which seeks a decision from [the trial court] whether an
incomplete notice of lien is ‘void, invalid and of no force or effect.’”
Daneshrad appeals from the portion of the trial court’s
order denying his special motion to strike.
DISCUSSION
A. The Anti-SLAPP Statute and Standard of Review
SLAPP suits are “generally meritless suits brought by large
private interests to deter common citizens from exercising their
political or legal rights or to punish them for doing so.” (Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 816, disapproved on
another ground in Equilon v. Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68.) To combat these types of suits, the
Legislature enacted section 425.16—known as the anti-SLAPP
statute—to provide a procedural remedy to dispose of lawsuits or
individual causes of action that are brought to chill the valid
exercise of a person’s constitutional rights. (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1055-1056; see Baral v. Schnitt (2016) 1
Cal.5th 376, 395; § 425.16, subd. (b)(1).)
The anti-SLAPP statute requires a two-step process: first,
the moving party must establish that the lawsuit’s claims are
based on activity protected by the statute. (Briganti v.
Chow (2019) 42 Cal.App.5th 504, 508 (Briganti).) If the defendant
meets that burden, the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. (Ibid.)
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“‘[W]ithout resolving evidentiary conflicts,’” the court must
determine whether the plaintiff’s showing, if accepted by the trier
of fact, would be sufficient to sustain a favorable judgment; if not,
the claim is stricken. (Ibid.) “In making these determinations the
court considers ‘the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.’ (§ 425.16, subd. (b)(2).)” (Briganti, supra, at p. 508.)
We review the trial court’s decision to grant or deny an
anti-SLAPP motion de novo. (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 788.)
B. D&M’s Malpractice Action Does Not “Arise From”
Petitioning Activity Protected Under the Anti-
SLAPP Statute
The anti-SLAPP statute provides: “A cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) As relevant here, section 425.16,
subdivision (e) provides, in part: “As used in this section, ‘act in
furtherance of a person's right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (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 . . . .”
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Daneshrad contends D&M’s malpractice action arises from
his petitioning activities in the underlying action (specifically,
filing a motion to withdraw and a notice of lien) and therefore the
entire complaint is protected under section 425.16, subdivisions
(e)(1) and (e)(2). We disagree.
It is beyond dispute that Daneshrad’s filing of a motion to
withdraw and notice of lien are “statement[s] or writing[s] made
before a . . . judicial proceeding . . . .” (§ 425.16, subd. (e)(1).) It
does not follow, however, “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 (Kolar).) Rather, “[t]o qualify for anti-SLAPP protection, the
moving party must demonstrate the claim ‘arises from’ those
activities. A claim ‘arises from’ an act when the act ‘“‘forms the
basis for the plaintiff’s cause of action’ . . . . [Citation.].”’ (Ibid.)
D&M’s malpractice action is not predicated on Daneshrad’s
act of filing the motion to withdraw.2 Rather, as noted by the trial
court, the allegation that Daneshrad filed a motion to withdraw
is “only incidental to a cause of action based essentially on
nonprotected activity . . . . ” (Martinez v. Metabolife Internat., Inc.
(2003) 113 Cal.App.4th 181, 188.) As discussed above, the
complaint alleges Daneshrad “failed to prosecute the matter
reasonably and diligently” and “effectively abandoned the case”
by, among other things, failing to take depositions and propound
sufficient discovery to prosecute the case, failing to keep D&M
2 As noted above, the trial court granted the special motion
to strike to the extent D&M sought to predicate the malpractice
claim on allegations that Daneshrad filed a notice of lien for
improper purposes. The court struck allegations in paragraphs 8
and 11 of the complaint accordingly.
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informed of developments in the case, and dismissing and
releasing parties who had liability without obtaining D&M’s
informed consent. These allegations arise from Daneshrad’s
alleged legal malpractice and not from petitioning activity
protected under the anti-SLAPP statute. (See Kolar, supra, 145
Cal.App.4th at p. 1540 [“A malpractice claim focusing on an
attorney’s incompetent handling of a previous lawsuit does not
have the chilling effect on advocacy found in malicious
prosecution, libel, and other claims typically covered by the anti-
SLAPP statute. In a malpractice suit, the client is not suing
because the attorney petitioned on his or her behalf, but because
the attorney did not competently represent the client’s interests
while doing so. Instead of chilling the petitioning activity, the
threat of malpractice encourages the attorney to petition
competently and zealously. This is vastly different from a third
party suing an attorney for petitioning activity, which clearly
could have a chilling effect”].)
Accordingly, we conclude Daneshrad failed to meet his
burden under the anti-SLAPP statute’s first prong to
demonstrate D&M’s complaint arises from petitioning activity,
with the exception of the allegations regarding the filing of the
notice of lien underlying the malpractice cause of action. The trial
court, therefore, properly denied Daneshrad’s motion to strike the
entire complaint and, instead, struck only the allegations that
Daneshrad improperly filed a notice of lien in support of the first
cause of action for legal malpractice.
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DISPOSITION
The order is affirmed. D&M is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
COLLINS, Acting P.J.
STONE, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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