Filed 4 / 27 / 22 Garcia v. Daily CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HELEN GARCIA,

Plaintiff and Respondent,

v.

LEANNE H. DAILY et al.,

Defendant and Appellant. G060969

(Super. Ct. No. 20CV365883)

O P I N I O N

Appeal from an order of the Superior Court of Santa Clara County, Sunil R.

Kulkarni, Judge. Affirmed.

Murphy, Pearson, Bradley & Feeney, Janet L. Everson and Suzie M.

Tagliere for Defendants and Appellant s

.

Hovore Law and F. Thomas Hovore for Plaintiff and Respondent.

* * *2 LeeAnne H. Daily and the Daily and Daily Law Firm appeal from an order

denying their special motion to strike Helen Garcia ’ s complaint pursuant to Code of Civil

Procedure section 425.16 (the anti

- SLAPP statute). Appellants contend the trial court

erred in determining that the anti

- SLAPP statue did n ot apply to Garcia ’ s claims for legal

malpractice and breach of fiduciary duty. The trial court correctly determined the anti

SLAPP statute did not apply to the claims; we affirm.

I

F ACTUAL AND P ROCEDURAL B ACKGROUND

A. Complaint

On March 30, 2020, Garci a filed a complaint against appellants, alleging

claims for professional negligence and breach of fiduciary duty. The complaint alleged

that in 2015, Garcia filed for divorce from her now ex

- husband Anthony Roy Loaiza. By

court order, Loaiza was allowed to remain in the community residence, but was solely

responsible for all payments to maintain the residence. Defendants LeeAnne H. Daily, a

certified family law specialist, and her firm, the Daily and Daily Law Firm, represented

Loaiza in the matter.

F ollowing settlement discussions in December 2016, the parties entered

into a written Stipulation and Order, which was signed by Garcia, Loaiza, Daily, and the

settlement officer. The complaint alleged that “ the parties and signatories agreed to be

bound ” by the terms of the Stipulation and Order, which included that the community

residence would be sold and the sale proceeds deposited into the trust account of

LeeAnne H. Daily and “ shall be held in that account until the written agreement of the

parties or further order of the Court. ”

The complaint alleged the community residence was sold on February 7,

2018, but defendants improperly permitted Loaiza to allocate noncommunity debts to

reduce the sale proceeds. Furthermore, contrary to the written Stipul ation and Order, the

sales proceeds were not deposited into Daily ’ s trust account but entrusted to Loaiza. The3

complaint further alleged that on June 18, 2019, Loaiza informed the court he had spent

the entire proceeds from the sale and could not pay Garc ia her share of the sale proceeds.

The first cause of action for professional negligence alleged that

“ [p]ursuant to the terms of the Stipulation and Order, executed by Defendants, the

Defendants had a duty to provide Plaintiff with the competence, care and skilled required

and reasonably expected of a c ertified s pecialist in f amily l aw. In particular, by signing

the Stipulation and Order in December 2016, the Defendants undertook [] a duty to

safeguard the funds from the community residence in their tr ust account. ” The second

cause of action for breach of fiduciary duty alleged that by virtue of the Stipulation and

Order, “ the Defendants owed fiduciary duties to safeguard proceeds from the sale of the

community residence, ” and breached those duties by entrusting the proceeds to Loaiza.

B. Anti

- SLAPP Motion

Appellants filed a special motion to strike the complaint pursuant to Code

of Civil Procedure section 425.16 (the anti

- SLAPP motion). 1 A ppellants a sserted

Garcia ’ s claims arose from Daily ’ s petitioning activity and thus were within the scope of

section 425.16, subdivision (e). Appellants acknowledged that section 425.16 does not

apply to legal malpractice claims, but argued Garcia ’ s claims are not legal malpractice

claims because Garcia was never Daily ’ s client and Daily was not a party to the written

Stipulation and Order. Appellants further asserted that Daily signed the agreement as

attorney for Loaiza, and her signature did not indicate an intent to be bound to the

agreement. Finally, a ppellants argued Garcia would not be able to show a probability of

success on the merits because, among other reasons, the claims were barred by the

litigation privilege.

Garcia opposed the anti

- SLAPP motion on the grounds that her claims did

not arise f rom protected conduct. Rather, the claims were based on defendants agreement

1 All further statutory citations are to the Code of Civil Procedure.4

to undertake the duty to act as an escrow agent with regard to the proceeds from the sale

of the community residence and the breach of that duty, which are not protected conduct

under section 425.16.

In reply, appellants argued Daily was never subject to any fiduciary duties

of an escrow holder because she never received any of the sale proceeds.

The trial court denied the anti

- SLAPP motion, finding the showing did not

satisf y the first prong of the statute. It determined that Garcia ’ s claims did not fall within

the ambit of section 425.16 because “ the injurious conduct at issue in the Complaint is

not entering into the stipulation, but failing to safeguard the proceeds from the sale of the

community residence. ” “ The alleged failure to safeguard the settlement funds is neither

communicative nor connected with an issue of public interest. ”

II

D ISCUSSION

The Legislature enacted the anti

- SLAPP statute in 1992 in response to “ a

disturbing increase in lawsuits brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the redress of grievances. ”

(§ 425.16, subd. (a).) Such lawsuits “ are commonly known as SLAPP suits (strat egic

lawsuits against public participation)

— litigation of a harassing nature, brought to

challenge the exercise of protected free speech [or petition] rights. ” ( Fahlen v. Sutter

Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.)

The anti

- SLAPP statute authorizes a special motion to strike meritless

claims early in the litigation if the claims “ aris[e] 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).) Resolution of an anti

- SLAPP motion involves two steps. First, the

defendant must establish that the challenged claim arises from activity protected by

section 425 .16. ( Taus v. Loftus (2007) 40 Cal.4th 683, 712.) If the defendant makes the5

required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim

by establishing a probability of success. ( Id. at p. 713.) “ [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 v. Board of

Trustees of California State University (2017) 2 Cal.5th 1057

, 1060.)

We review de novo the grant or denial of an anti

- SLAPP motion. ( Soukup

v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 ( Soukup ).) “ We review

the record independently to determine whether the asserted cause of action arises fro m

activity protected under the statute. ” ( Schwarzburd v. Kensington Police Protection &

Community Services Dist. Bd

. (2014) 225 Cal.App.4th 1345, 1350.) We do not, however,

weigh the evidence, but accept plaintiff ’ s submissions as true and consider only whether

any contrary evidence from the defendant establishes its entitlement to prevail as a matter

of law. ( Soukup

, supra, at p. 269, fn. 3.) “ [C]laims with the requisite minimal merit may

proceed. ” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 94.)

Appellants contend Garcia ’ s claims arose from protected activity because

the only conduct at issue is Daily ’ s signing of the Stipulation and Order as “ counsel for

[Loaiza], ” and her signature on the agreement was protected petitioning activity. (See,

e.g

., Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963 [ “ [S]ettlement negotiations are

an exercise of the right to petition and statements made as part of such negotiations are in

connection with the underlying lawsuit for purposes of section 425.16, subdivi sion

(e)(2). ” ].) However, Garcia ’ s claims are not based solely on Daily ’ s signature. The

complaint alleged that as a signatory, Daily agreed to be bound to the terms of the

Stipulation, including ensuring that the sale proceeds would be deposited into Da ily ’ s

trust account and held until further written agreement by the parties or order of the Court.6

The complaint further alleged that Daily breached her duties under the Stipulation. As

framed by the complaint, the conduct at issue therefore is appellant s ’ breach of a duty,

not the entry into the stipulation. (See Old Republic Construction Program Group v. The

Boccardo Law Firm

, Inc. (2014) 230 Cal.App.4th 859

, 869 ( “ [T]here was nothing

wrongful about the stipulation itself; entry into it is not the inju rious conduct alleged.

Rather,

. . . Old Republic ’ s injury arose from defendants ’ withdrawal of the funds that

were the subject matter of the stipulation ” ]; see also Chodos v. Cole (2012)

210 Cal.App.4th 692, 706 [ “ Malpractice involves a breach of duty by neglecting to do an

act or doing an act, not the right of petition. ” ].)

Relying on Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781 (Monster

Energy ), appellants argue Daily ’ s signature on the Stipulation did not create any duty on

her part. Their reliance is misplaced. First, the case did not discuss the first step of an

anti

- SLAPP motion analysis. (See id. at p. 788.) At the first step, “ ‘ [w]e do not consider

the veracit y of [ the plaintiff ’ s] allegations ’ [citation] nor do we consider ‘ [m]erits based

arguments. ’” (See Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156.) Whether Daily

intended to be bound by the Stipulation or received any sale proceeds goes to the merit s

of Garcia ’ s claims, not to whether the claims fall within the ambit of section 425.16.

Second, Monster Energy does not support appellants ’ argument that as a

matter of law Daily ’ s signature on the Stipulation and Order did not create a duty owed to

Ga rcia. There, after the parties to a tort action agreed to settle their lawsuit, “ [a]ll parties

signed the agreement and their lawyers signed under a notation that they approved the

written agreement as to form and content. ” ( Monster Energy

, supra

, 7 Cal.5th at p. 785.)

In contrast, Daily did not sign the Stipulation and Order with a notation that she approved

only its form and content. Even had she done so, “ the notation does not preclude a

factual finding that counsel both recommended their clients sign the document and

intended to be bound by its provision. ” ( Id. at pp. 785

- 786.) Rather, “ counsel could

consent to be bound by the agreement ’ s provisions, and, ordinarily, ‘ [i]n the absence of7

fraud, mistake, or another vitiating factor, a signature on a written contract is an objective

manifestation of assent to the terms set forth there. ’” ( Id. at p. 789, quoting Rodriguez v.

Oto (2013) 212 Cal.App.4th 1020, 1027.) Appellants failed to meet their burden to show

the claims arose from conduct protec ted under section 425.16.

III

D ISPOSITION

The order is affirmed. Respondent is entitled to her costs on appeal.

ZELON, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

SANCHEZ, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.