Filed 3/ 17/22 The Law Offices of Paul N. Philips v. Rudich CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE LAW OFFICES OF PAUL N. PHILIPS

, A Professi onal Law Corporation

,
Plaintiff and Respondent

,

v.

DAVID P. RUDICH et al.

,

Defendant s and Appellants

. B 305942

(Los Angeles County Super. Ct. No. 19SMCV00655 )

APPEAL from a n order of the Superior Court of L os Angeles County, Elaine W. Mandel , Judge. Affirmed

. Law Offices of Philip Kaufler and Philip Kaufler for
Defendants and Appellant s

. Law O ffices of Paul N. Philips, Paul N. Philips and
Samantha E. Mirabello for Plaintiff and Respondent.

——————————2 The Law Offices of Paul N. Philips , A Professional Law Corporation (Philips APLC ) sued David P. Rudich and the Law
Office of David Rudich (collectively Rudich) for declaratory relief and defamation per se. Rudich move d to specially strike the
defamation per se cause of action under Code of Civil Procedure
section 425.16 ( anti

- SLAPP statute )

. 1 The trial court denied the
motion , finding Rudich failed to establish the defamation per se allegations were based on protected activity

. Rudich contends th e trial court err ed because his statements were subject to the litigation privilege

. We disagree and affirm.

BACKGROUND

I. The U nderlying L itigation and F ee D ispute
In 2013, Rudich introd uced a high

- profile client to Philips
APLC to represent the client in a music copyright infringement

case

. Pursuant to a written agreement, Rudich and Philips APLC agreed to share legal fees earned from the litigation

. After Philips
APLC achieved a favorable result and substantial fee award

, Rudich and Philips APLC disagreed over Rudich’s share of the fees

. Rudich claimed he was entitled to 50 percent of the total fee award

, while Philips APLC claimed Rudich was entitled to an amount

pro portionate to the number of hours worked

. When Philips APLC refused to pay Rudich the disputed share of legal fees , Rudich allegedly made disparaging remarks about Philips APLC to the high

- profile client involved in the litigation

, and to Philips APLC’s former clients and other professionals in the

1 Subsequent undesignated statutory references are to the Code of Civil Procedure. “SLAPP” is an acronym for strategi c lawsuit against public participation. ( Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4 th 1106, 1109 & fn. 1.)3

entertainment industry

. Rudich allegedly said : (1) Philips APLC holds, takes

, converts, and wrongfully retains client s’ funds; (2) Philips APLC’s business model includes ignoring and being purposely inattent ive to clients; and (3) Philips APLC ’s principal
was fired from his former law firm for being inattentive to clients. 2 Philips APLC sued Rudich for declaratory relief to resolve the fee dispute and for defamation per se for the subsequent statements

to the high

- profile client , Philips APLC’s current, former , and potential client pool , and industry professionals.

II. Rudi ch’s M otion to S trike
Rudich filed a special motion to strike the defamation per se
cause of action under s ection 425.16 , asserting the alleged statements were subject to the litigation privilege

. In support of the motion, Rudich declared he had referred over 10 clients to Paul N. Philips (Philips) individually and each time he was told Philips would pay him 50 percent of all fees he derived from the litigation.
Rudich denied telling the high

- profile client or any other person that Philips APLC or Philips w rongfully retained client funds,

2 At the request of Philips APLC, t h e first amended complaint was filed under seal in the trial court, but no request to seal was filed in this court. We note both sides recite in their trial court brief s and appellate briefs the content of the alleged defamatory
statements , all of which wa s redacted in the publicly accessible version of the first amended complaint

. We also note Philips APLC identifies the high

- profile client’s case information in its opening brief. Though redacted in the trial court, w e would be unable to review the issues on appeal without reciting the alleged defamatory
statements in our opinion

. In all other respects, we have endeavored to refer only generally to redacted allegations.4

i gnored their clients

, or that Philips was fired from a law firm for being inattentive to clients. In opposition, Philips APLC submitted the declarations of Philips and Robert Elliott Clarke

. Philips declared he learn ed in April 2019 Rudich had begun a smear campaign against him and his firm. He sent Rudich a cease and desist letter that garnered no response. Philips later learned Rudich continued to defame him
and his law firm to the high

- profile client , other former clients, and lawyers and professionals in Los Angeles, Beverly Hills, West Hollywood and entertainment communities, prompting the first amended complaint’s cau se of action for defamation per se

. Clarke declared Rudich introduced him to Philips in 2013 to handle a case for his late father. After losing touch with Philips,
Clarke called Rudich in July or August of 2017 to inquire about his
father’s case. Clar ke declared Rudich said he did not know about the case, but that Clarke should check with Philips because his office had been stealing money from clients for years and probably had all his father’s money. Clarke then called Philips, who assured
him his fa ther’s case had been handled appropriately and recovery from his case had been properly distributed.
The court denied the motion to strike, finding, Rudich did “ not provide specific allegations as to how such representations relate to or are necessary t o prepare for anticipated litigation. That the parties were involved in a dispute over fees does not, on its own, render any and all representation [s] made by [Rudich] about5

[Philips APLC] protected petitioning activity. [Rudich] fail [ed] to establish th e allegations are based on protected activity.”

R udich timely appealed

. 3

DISCUSSION

I. Overview

The anti

- SLAPP statute provides a procedure for the early dismissal of what are commonly known as SLAPP suits

— li tigation of a harassing nature, brought to challenge the exercise of protected free speech rights. ( Fahlen v. Sutter Central Valley Hospitals (2014)
58 Cal.4 th 655, 665, fn. 3.) “The anti

- SLAPP statute does not
insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. ” ( Baral v. Schnitt (2016) 1 Cal.5 th 3 76, 384 .)
Pursuant to section 425.16, subdivision (b)(1), a litigant may move
to strike 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 Cons titution in connection with a public issue.” We review an order granting or denying a special motion to
strike de novo. ( Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4 th 811, 820.) In evaluating an anti

- SLAPP motion, we first
determine whether the moving defendant has made a threshold showing that the challenged action arises from protected activity, i.e., activity in furtherance of the rights of petition or free speech. ( Rusheen v. Cohen (2006) 37 Cal.4 th 1048, 1056; § 425.16, subd. (e) .)

3 An order denying an anti

- SLAPP motion is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)6

If the defendant makes that threshold showing, the burden shifts to the plaintiff to demonstrate a probability of success on the merits. ( Oasis West Realty, LLC v. Goldman

, supra , 51 Cal.4 th at pp. 819

– 820.) We consider the pleadings and supporting and opposin g affidavits stating the facts upon which the liability or defense is based. (§ 425.16, subd. (b)(2) ; see Navellier v. Sletten (2002)
29 Cal.4 th 82, 89 .) We examine the complaint in a fair and commonsense manner, and we broadly construe the anti

- SLAPP

st atute. (See § 425.16, subd. (b)(2).) “[W]e neither ‘weigh credibility [nor] compare the weight of the evidence.’ ” ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4 th 260, 269, fn. 3.)

II. The Defamation Per Se Cause of Action Does Not Arise From Protected Activity
Section 425.16, subdivision (e) identifies the categories of
conduct protected under the anti

- SLAPP statute that may support a
motion to strike. As relevant here, t he anti

- SLAPP statute defines
acts in furtherance of the constitut ional right to petition to include

“ any written or oral statement or writing made in connection with an issue under consideration or review by a

. . . judicial body.” (§ 425.16, subd. (e)(2).) Rudich contends the alleged defamatory statements are prote cted by the absolute litigation privilege in Civil Code
section 47. Rudich seems to assume a statement subject to the litigation privilege automatically qualifies as protected activity
under the anti

- SLAPP statute

. Rudich is mistaken

. While there is a relationship between the litigation privilege
statute and the anti

- SLAPP statute, t hey do not serve the same

purposes. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 323

– 324.) “The litigation privilege embodied in Civil Code section 47,7

subdivision (b) serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth. Applying the litigation privi lege to some forms of unlawful litigation

- related activity may advance those broad goals notwithstanding the ‘occasional unfair result’ in an individual case.” ( Id. at p. 324.)
T he anti

- SLAPP statute is “not concerned with securing for litigants freedom of access to the judicial process.” ( Flatley v.
Mauro

, supra , 39 Cal.4 th at p. 324

. ) Rather, the purpose of the
anti

- SLAPP statute is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of judicial process, “by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights.” ( Ibid. ) Nevertheless, because the two statutes are related, courts “have looked to the litigation pr ivilege as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two

- step anti

- SLAPP inquiry.” ( Flatley v. Mauro

, supra , 39 Cal.4th at pp. 322

– 323; Bel Air Internet, LLC v. Morales (2018) 20 Cal .App.5 th 924, 941, fn. 6.)
“The statute does not accord anti

- SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must
occur in connection with ‘an issue under consideration or review’ in the proceeding.” ( Paul v. Friedman (2002) 95 Cal.App.4th 853,
866

. ) “[I]t is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection
with an issue under review in that proceeding.” ( Id. at p. 867.) A

“ lawyer ’ s attempt to inject an issue into a proceeding does not8

render the issue relevant, nor can the attempted injection of an
irrelevant matter transform it into an issue ‘ under consideration or
review ’ i n the proceeding. By definition, irrelevant matters have no tendency in reason to prove or disprove any disputed fact of consequence to the determination of a matter, and are specifically
excluded from consideration. Irrelevant matters thus are not

‘ unde r consideration or review ’ in an official proceeding. ” ( Id. at

pp. 867

– 868, f

n. omitted.) We acknowledge communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the scope of conduct protected under section 425.16 and under Civil Code section 47, subdivision (b). ( Briggs v. Eden Council for Hope & Opportunity

, supra , 19 Cal.4 th at p. 1115; Neville v. Chudacoff (2008) 160 Cal.App.4 th 1255, 1268.) However,
the “ requirement to show that litigation is seriously contemplated ensures that prelitigation communications are actually connected to litigation and that their protection therefore furthers the anti

SLAPP statu t e’s purpose of early dismissal of meritless lawsuits that arise from prote cted petitioning activity. ” ( Bel Air Internet,
LLC v. Morales

, supra , 20 Cal.App.5 th at p. 941.) Thus, under section 425.16, which protects conduct including “ ‘ any written or oral statement or writing made in connection with an issue under
consideration or review by a . . . judicial body, ’ ” a statement has
sufficient “ ‘ connection ’ ” with anticipated litigation if the person making the statement is engaged in a serious effort to encourage or counsel litigation by another. ( Id. at p. 943.)
Rudich has no t sufficiently connected the alleged defamatory statements to this litigation or to anticipated litigation. Rudich

argues without evidentiary support the alleged defamatory statements were protected activity because they were part of a9

preparatory investi gation in anticipation of the instant fee dispute and because he made them to the client in the underlying copyright litigation. This contention is not contained in the first amended complaint or in the declarations. The gravamen of the defamation

per se cause of action is that Rudich retaliated against Philips APLC by making defamatory statements to the high

- profile client, former clients, and other industry professionals, that Philip APLC misappropriated client funds, and that Philips APLC and its princ ipal were inattentive to clients. While Rudich points out the statements were alleged to have been made to the client whose fees are in dispute in the instant action, Rudich fails to address the others. Even if we were to accept Rudich’s argument absent allegations or evidence th at he contacted the former clients and industry professionals to gather probative information from potential witnesses, he has not explained how the alleged defamatory statements were relevant to the present litigation.
Rudich dec lared he referred several clients to Philips APLC in the past, but glaringly absent are facts describing how those former clients or industry professionals, or the subject matter of the alleged statements, were connected to this case or an issue under

cons ideration in any other proceeding. Without more, Rudich’s alleged defamatory statements appear wholly unconnected to the instant action and thus do not meet the threshold showing of protected activity under the first prong of our anti

- SLAPP analysis.
Even if the court considers Rudich is alleged to have contacted the high

- profile client, the contact alone does not satisfy a connection to this or any anticipated litigation.
Rudich’s reliance on Malin v. Singer (2013) 217 Cal.App.4th
1283 ( Malin )

, Cayley v. Nunn (1987) 190 Cal.App.3d 300 ( Cayley )

, and Dickens v. Provident Life & Accident Ins. Co (2004)10

117 Cal.App.4th 705 ( Dickens ) is unavailing

. Each of these cases involved statements directly connected to pending litigation or official proceedings.
In Malin

, an attorney sent a demand letter and a draft complaint on behalf of his client to the plaintiff. The letter threatened to disclose salacious personal informa tion about the plaintiff if the plaintiff did not agree to settle the claim. ( Malin

, supra , 217 Cal.App.4th at p. 1288

. ) The plaintiff sued the attorney for civil extortion and the attorney moved to strike the complaint as a SLAPP suit, arguing the state ments in the demand letter and draft complaint were made in contemplation of litigation. ( Id. at

pp. 1288

– 1290.) The trial court denied the motion, but the appellate court reversed, finding the attorney’s allegations were logically connected to a litigat ion that was seriously contemplated in good faith when the letter was sent. ( Id. at pp. 1301

– 1302.)
Unlike in Malin

, here Rudich has not shown how the alleged defamatory statements to former Philips APLC clients and industry professionals were related to any litigation that was being seriously contemplated by Rudich in good faith. Cayley is not an anti

- SLAPP case. There, defendants applied to the city council for a height variance which their neighbor plaintiffs opposed. ( Ca y ley

, supra , 190 Cal.App.3d at p. 302

. )
D efendants responded by circulating a petition around their neighborhood to support the variance application. ( Ibid. ) While circulating the petition, defendants told neighbors plaintiffs had illegally installed a listening device to defendan ts’ phone lines. ( Ibid. ) P laintiffs sued defendants for slander and defendants moved for summary judgment, arguing the statements were subject to the litigation privilege. The court found the alleged statements were made in the process of marshalling ev idence for the purpose of11

achieving the defendants’ goal of getting the variance at the city council meeting and therefore privileged. ( Id. at p. 304.)
In Dickens

, supra , 117 Cal.App.4 th at page 707 , an insurer investigated its insured for fraud and r eported its findings to law
enforcement

, which resulted in a fraud indictment . A jury acquitted the insured of all charges, and the insured sued the insurer for malicious prosecution, claiming it presented false
information to law enforcement to ini tiate the prosecution. ( Ibid. ) The insured brought an anti

- SLAPP motion to strike the malicious prosecution cause of action. ( Ibid. ) The court held the insurer’s statements to law enforcement were subject to the litigation privilege

, because the statem ents constituted reports about a possible violation of law that were preparatory to commencing an official proceeding authorized by law. ( Id. at p. 714.)
Neither Cayley nor Dickens su pport s Rudich’s contention the alleged defamatory statements were subjec t to the litigation privilege or were protected activity under the anti

- SLAPP statute.
Unlike Cayley , there is no evidenc e the alleged statements were made in the process of marshalling evidence for an official proceeding. Only in his reply brief on appe al does Rudich argue his contacts with Philips APLC’s former clients and other industry professionals were an attempt to reach out to potential witnesses. Even so, Rudich has not explained how the alleged defamatory statements that Philips APLC stole from clients or was inattentive to clients has any bearing on the fee dispute. Further, unlike in
Dickens , Rudich has not shown how telling former Philips APLC clients and industry professionals Philips APLC misappropriates
client funds and is inatte ntive to clients was in furtherance of the objects of this litigation or preparatory to commencing an official proceeding.12 Rudich has no t met his initial burden to show the alleged defamatory statements were protected activity under the anti

SLAPP statute. As su ch, we do not address the second prong of whether Philips APLC’s defamation per se cause of action is likely
to succeed on the merits.

DISPOSITION

The order is affirmed. Law Offices of Paul N. Philips, A Professional Law Corporation is awarded its costs on appeal.
NOT TO BE PUBLISHED.

KNILL , J. *

We concur:

LAVIN

, Acting P. J.

EGERTON, J.

* Judge of the Orange County Superior Court , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.