Keith A. Fink & Assocs. v. Finato

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KEITH A. FINK & ASSOCIATES, Cross-complainant and Respondent, v. CLAUDIA FINATO, Cross-defendant and Appellant.

B325604

California Court of Appeals, Second District, First Division

January 19, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. SC126362 Harry Jay Ford III, Judge. Affirmed.

Law Offices of Larry R. Glazer and Nicolette Glazer for Cross-defendant and Appellant.

Law Offices of Olaf J. Muller and Olaf J. Muller for Cross-complainant and Respondent.

BENDIX, J.

Because this appeal is determined by well-settled legal principles we decide the matter by memorandum disposition. (Cal. Stds Jud. Admin., § 8.1.) In litigation between Claudia Finato and her former counsel, Keith A. Fink &Associates (Fink), Fink filed a cross-complaint seeking payment for its services, alleging breach of a fee agreement, quantum meruit and a common count for services rendered. Finato filed a special motion to strike under Code of Civil Procedure^[1]section 425.16, the anti-SLAPP statute. The trial court denied the motion to strike, and Finato appealed. Our review is de novo (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763), and we affirm.^[2]

Section 425.16 "authorizes a special motion to strike a claim '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.' (§ 425.16, subd. (b)(1).)" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) Acts protected under the statute include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)

"A court evaluates an anti-SLAPP motion in two steps. 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] . . .' [Citation.]" (Wilson, supra, 7 Cal.5th at p. 884.) "If the defendant fails to meet its burden, there is no need to proceed to the second step of the process, and the motion must be denied." (Callanan v. Grizzly Designs, LLC (2022) 81 Cal.App.5th 517, 525 (Callanan).) If, however, "the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit."' [Citation.]" (Wilson, at p. 884.)

In assessing whether allegations or claims arise from protected activity, "courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).) "If 'specific elements' of a plaintiff 's claims 'depend[ ] upon the defendant's protected activity,' those claims arise from that protected activity." (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1110, quoting Park, at p. 1064.) "[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." (Park, at p. 1060.)

Here, Finato fails to demonstrate Fink's allegations or claims arise from activity protected under section 425.16. Under the cause of action for breach of contract, Fink's cross-complaint alleged Finato entered into a fee agreement with Fink under which she agreed to pay Fink" '50% . . . of any amount recovered [by Finato],'" " 'due and payable upon receipt by the Client of the proceeds of any settlement, award, or judgment.'" In the event Finato terminated Fink's representation, Fink" 'shall have the right to recover from any settlement, judgment, or other recovery, after it is obtained by Client, compensation for the reasonable value of [Fink's] services and unreimbursed actual costs and expenses advanced by [Fink].'" The cross-complaint further alleged Finato had, after terminating Fink's services, entered into a confidential settlement agreement with the opposing party in the litigation in which Fink had represented her, yet had "refused to pay any portion of her settlement sum" to Fink.

The cross-complaint's causes of action for quantum meruit and services rendered sought compensation for "[t]he reasonable value for the services rendered," which had not been paid despite Fink's repeated demands.

None of these allegations or claims seeks to impose liability based on Finato's statements, writings, or other communicative or petitioning acts. The wrong complained of is simply nonpayment of monies owed. Failure to pay a debt is not protected conduct under section 425.16. (See Century 21 Chamberlain &Associates v. Haberman (2009) 173 Cal.App.4th 1, 7 [cause of action alleging defendant's failure to pay interest owed on a loan "does not arise from any protected activity"].)

Finato contends her termination of Fink's services, entering into the confidential settlement agreement, and litigation in court to dispute Fink's entitlement to payment constitute protected acts. She further asserts that a particular term of the settlement agreement limiting payment of fees to her current counsel is protected.

Assuming arguendo these are protected acts under section 425.16, Fink does not to seek to impose liability on any of these bases. Fink does not allege Finato is liable for firing the firm, settling the case, adding a term to the settlement limiting payment of attorney fees to current counsel, or opposing Fink's claim for fees. Again, the only wrongful act alleged in the cross-complaint is Finato's failure to pay for Fink's services.

It is arguably true that the settlement was a necessary condition...