Golden State Seafood, Inc. v. Schloss

53 Cal.App.5th 21

266 Cal.Rptr.3d 608

GOLDEN STATE SEAFOOD, INC., Plaintiff and Respondent,

v.Jamie R. SCHLOSS, Defendant and Appellant.

B295937

Court of Appeal, Second District, Division 8, California.

Filed July 22, 2020

Jamie R. Schloss, in pro. per.; Turner Law Firm, Keith J. Turner, Pacific Palisades, and Justin Escano, Santa Monica, for Defendant and Appellant.

Law Offices of Collin Seals and Collin Seals ; Charles L. Murray III, Los Angeles, for Plaintiff and Respondent Golden State Seafood, Inc.

STRATTON, J.

INTRODUCTION

Golden State Seafood filed an action for malicious prosecution and unfair business competition against William Cohen (Cohen) and his attorney appellant Jamie R. Schloss (Schloss). The complaint alleged Schloss filed a prior lawsuit against Golden State Seafood on behalf of his client Cohen, knowing he lacked probable cause to bring the action. Golden State Seafood also alleged Schloss maliciously refused to dismiss the prior action and engaged in unfair business practices.

Schloss filed an anti-SLAPP motion. The trial court denied the motion because Golden State Seafood demonstrated a likelihood of success on the merits of its claims, thereby satisfying the second prong of the anti-SLAPP test. Schloss filed a motion for reconsideration. That motion was also denied.

Schloss now appeals the orders denying his two motions. We affirm both orders.

FACTUAL AND PROCEDURAL BACKGROUND

A. Relevant Factual Background

Golden States Seafood (GSS) is a wholesale seafood distributor based in downtown Los Angeles. On August 19, 2015, GSS was making a delivery to Bellaj Banquet Hall (Bellaj) in Burbank. While making the delivery, the GSS truck driver parked in a space reserved for drivers with valid handicap placards on display. At that point, William Cohen parked his car and confronted the GSS driver for parking improperly. He "pulled out a camera and began taking photographs" while the GSS driver apologized and moved the delivery truck.

Cohen contacted GSS, demanding personal financial compensation because its driver had improperly parked in the handicap parking spot. GSS did not offer compensation.

Cohen, represented by attorney Schloss, then filed a lawsuit against GSS, alleging violations of: 1) the Unruh Act ( Civ. Code, § 51 et seq. ) premised upon a violation of the Americans with Disabilities Act of 1990 (ADA); and 2) the California Disabled Persons Act (DPA) ( Civ. Code, § 54 et seq. ).

On May 23, 2017, when trial by jury commenced, Cohen's evidence unfolded in an unexpected way. In his complaint, Cohen had initially alleged a denial of access to goods and services at Bellaj. His complaint read: "On Wednesday August 19, 2015 at approximately 3:30 p.m., William Cohen was trying to eat at the Bellaj Banquet Hall ... but was prevented from doing so because he could not park in the handicapped parking space." However, at trial, Cohen testified he was actually seeking and was denied access to the 7-11 convenience store located adjacent to the Bellaj because he needed to get a drink as he felt dehydrated. Similarly, Schloss represented to the jury that Cohen was denied access to the nearby 7-11 store, as opposed to Bellaj.

Also unusual was that Cohen presented no documentary evidence at trial that he had a valid handicap placard at the time of the incident at Bellaj, a placard he needed to display to park legally in the space blocked by the GSS driver. (The record on appeal does not include a complete transcript of Cohen's oral testimony; all we have is Schloss's post-trial declaration that Cohen testified he had been issued a valid placard, but had lost the receipt showing when it went into effect.) Thus, at trial, Cohen proved, at most, that the GSS driver committed a parking violation when he parked his truck in a space reserved for vehicles displaying handicap placards. For its part and in response to the allegations in the operative complaint, GSS presented evidence that Bellaj was not open for business on the day in question, casting doubt on Cohen's story as pled in the complaint. On May 24, 2017, the jury returned a verdict in favor of GSS. The jury found Cohen was not disabled at the time of the alleged incident.

B.GSS's Subsequent Civil Complaint

One year later, on May 24, 2018, GSS filed a civil complaint against Cohen and Schloss, seeking damages, injunctive relief, and attorney fees and costs. The complaint alleged three causes of action: 1) wrongful use of civil proceedings (against Cohen alone); 2) malicious prosecution (against Cohen and Schloss); and 3) violation of Business and Professions Code section 17200 et seq. (against Schloss alone).

We do not discuss the first cause of action filed solely against Cohen because he is not a party to this appeal. As to the second cause of action for malicious prosecution, GSS alleged Cohen and Schloss (collectively defendants) knowingly filed a "meritless and malicious lawsuit" that was based on "fabricated facts and a non-cognizable legal theory."

The GSS complaint alleged no reasonable attorney would have filed the parking case, but Schloss did so knowing he could not prove GSS had violated the Unruh Act or the DPA. GSS alleged defendants’ parking case had "absolutely no merit" in that 1) defendants both knew there is no private right to enforce parking violations; 2) defendants did not have standing to privately prosecute a motor vehicle violation; 3) the facility Cohen visited was owned and operated by Bellaj, not GSS; 4) Bellaj was not open for business at the time of the incident; 5) GSS did not operate or own any facility that denied access to Cohen; and 6) Cohen was neither disabled nor handicapped on the date of the incident.

The complaint further alleged defendants continued to proceed with litigation "despite being informed of the reasons why no reasonable attorney would bring such allegations on the alleged facts" and after the trial court denied their ADA claims. GSS alleged defendants "perpetrated this precise scheme on at least one other occasion in an attempt to extort money from another company making a delivery. Considering [Cohen]’s own testimony that he has filed approximately twenty (20) ADA cases, (where he is often represented by [Schloss] ), ... [Cohen] in essence makes income prosecuting ADA cases."¹

GSS alleged Cohen and Schloss, for the first time at trial, claimed Cohen was trying to access the 7-11 rather than Bellaj. "By changing the allegation at such a late date, ... [Cohen] and [Schloss] knew that [Cohen] was never actually denied access to either [Bellaj] (which was not open), or 7-11 (which he could have freely entered)."

The third cause of action alleged Schloss engaged in unfair competition in violation of Business and Professions Code section 17200 et seq., in that Schloss, a licensed attorney, has earned income in the past several years by filing nearly 20 ADA lawsuits. He and Cohen have a contractual relationship where Schloss is retained to prosecute "meritless legal lawsuits" based on alleged ADA and Unruh Act violations against persons and entities for improperly parking in handicap spaces. GSS sought attorney fees and injunctive relief to enjoin defendants from further engaging in such litigation.

C. Special Motion to Strike the Complaint

Schloss entered a general denial, and on August 30, 2018, filed a special motion to strike GSS's complaint as a strategic lawsuit against public participation under the anti-SLAPP statute, Code of Civil Procedure section 425.16.²

On October 16, 2018, the trial court issued an order denying Schloss's special motion to strike in its entirety. In doing so, the trial court issued an extensive ruling discussing the many bases upon which it found GSS would likely be successful in prevailing on the merits of both claims.

D. Motion for Reconsideration

Ten days later, on October 26, 2018, Schloss filed a motion requesting the court to reconsider its denial of his anti-SLAPP motion because of new evidence—namely, a record from the Department of Motor Vehicles (DMV) showing Cohen was issued a disabled parking placard prior to the August 19, 2015 incident. He contends Cohen's causes of action were thus factually and legally viable, and GSS had not shown any evidence of malice or credible evidence establishing a lack of probable cause.

At the hearing on the motion for reconsideration, the trial court found Schloss did "not present new facts, circumstances or law to warrant reconsideration of the denial of the anti-SLAPP motion, as required by CCP § 1008(a)." The DMV record (purportedly indicating Cohen had a valid handicap placard at the time of the incident) "was available when the anti-SLAPP motion was heard, notwithstanding Schloss’ assertion that it took 5 hours to obtain the Registration Information Request form and that it was not worth the time and expense to obtain this document for the trial" in Cohen's initial lawsuit against GSS.

The court denied Schloss's motion for reconsideration. In doing so, the trial court expressly allowed GSS "to file a motion for sanctions pursuant to CCP § 1008(d)."

On February 22, 2019, Schloss filed a notice of appeal from the trial court's denial of the anti-SLAPP motion and denial of the motion for reconsideration.

DISCUSSION

A. Applicable Law

Section 425.16 provides, inter alia, that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).) An " ‘act in furtherance of a person's right of petition or free speech ... in connection with a public issue’ " is defined in section 425.16 to include, in relevant part: "any written or oral statement or writing made before a...