Alphapet, Inc. vs. Wagner

# Case Name Tentative 2 25-01477343 Motion to Strike - Anti SLAPP

Alphapet, Inc. vs. The Anti-SLAPP Motion to Strike Portions of Second Amended Wagner Complaint (SAC) by Defendants Kutak Rock LLP; Brian J. Wagner and Amir Farahani is GRANTED in part.

Defendants’ request for judicial notice is granted as to the existence of court records, although the Court does not assume the truth of matters stated in court filings.

Defendants move to strike portions of the SAC, including paragraphs 15, 18, 19, 20, 21, 23, 27, 28, 32, and 40 or portions thereof.

Legal Standard:

Code of Civil Procedure section 425.16 states, “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.” (Code Civ. Proc., § 425.16(b)(1).)

“Section 425.16 posits ... a two-step process for determining whether an action is a [strategic lawsuit against public participation]. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.” (Id. at 89.)

A defendant has the initial burden of demonstrating that the suit arises from conduct described in Code Civ. Proc. § 425.16, and that is it not subject to the exceptions contained in Code Civ. Proc. § 425.17. (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330.) Defendant need only make a prima facie showing of protected activity under Section 425.16, and the burden then shifts to plaintiff to establish, as a matter of law, that no such protection exists. (Code Civ. Proc. § 425.16(b), and Governor Gray Davis Committee v.

American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458 to 459.) Once the burden shifts, the plaintiff must thus demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 472.)

Procedural History:

On 11/20/25, the Court partially granted moving Defendants’ prior anti- SLAPP motion regarding the FAC as to paragraphs 35, 36, 41, 53, and 62, which alleged Defendants’ wrongful filing and/or service of legal documents in underlying litigation.

The Court denied the anti-SLAPP motion as to the following paragraphs, which alleged garden-variety professional negligence rather than protected litigation activity:

“25. As AlphaPet’s majority member, Homman is not subject to attorney-client privilege concerning the company’s internal matters. Nevertheless, Kutak refused to disclose any information regarding its engagement with AlphaPet or its knowledge derived from that representation.

26. Upon numerous requests, Defendants refused to provide Kutak’s records including but not limited to its legal services agreement entered with AlphaPet and invoices issued and paid by AlphaPet. Defendants also refused to disclose Kutak’s conflict-of-interest policies or to explain how its concurrent representation of Harold Epps and other interested individuals did not impair its obligations to AlphaPet.”

Because the prior anti-SLAPP motion did not completely dispose of any of Plaintiff’s causes of action, the Court also ruled on Defendants’ demurrer, sustaining with leave to amend as to the first cause of action, overruling as to the second cause of action, and sustaining without leave as to the third cause of action.

Plaintiff filed its SAC on 12/9/25.

Merits:

Defendants contend Plaintiff improperly made over 300 changes in the SAC, including re-framing the previously stricken paragraphs 35, 36, 41, 53, and 62 in violation of the anti-SLAPP statute.

Although a Plaintiff generally is not permitted leave to amend after their complaint has been determined a SLAPP, here the SLAPP ruling did not completely dispose of any cause of action and Plaintiff was permitted leave to amend its first cause of action for professional negligence. However, in granting leave to amend, the Court did not intend to allow Plaintiff to

re-plead allegations related to Defendants’ protected litigation conduct.

“[S]ection 425.16 provides no mechanism for granting anti-SLAPP motions with leave to amend. [Citations] Trial courts should either grant or deny such motions in toto, i.e., without leave to amend, prior to ruling on any pending demurrers. A proper ruling on the anti-SLAPP motion

would, in most cases, obviate the need to rule on the demurrer at all or, at the very least, in its entirety.” (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 629.)

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)

The motion is denied to the extent the SAC seeks to re-allege claims that the Court found were not subject to the SLAPP statute, i.e. paragraphs 25 and 26 which alleged the law firm wrongfully represented certain of the LLC’s members and refused to provide information related to its representation of the LLC to the other member. This includes the SAC’s paragraphs 15, 18, and portions of paragraph 40 (except paragraph 40’s references to making false statements to “the court”). The motion is also denied as to the “incorporating” allegations at paragraphs 28 and 32. However, to the extent discovery reveals any of these allegations are based on protected conduct, they may be subject to dismissal at a later stage.

The motion is granted as to Plaintiff’s attempt to re-allege claims which were previously stricken in the 11/20/25 order, i.e. claims which arise from Defendants’ filing and service of legal documents and/or asserting certain positions in active litigation. This includes the remaining allegations at paragraphs 19, 20, 21, 23, 26, and 27, which are attempts at “sham pleading” to avoid the effect of the anti-SLAPP ruling. It also includes the allegation in paragraph 40 that Defendants made “false representations...to...the court. 4 24-01376047 Motion to Strike or Tax Costs

Curran vs. Rivian Plaintiff Elizabeth Curran’s Motion to Tax Costs is GRANTED. Automotive, Inc. Defendants’ memorandum of costs seeks only discretionary costs. The parties do not dispute the FEHA and non-FEHA claims are inextricably intertwined, thus, Government Code section 12965(c)(6) applies to all costs instead of Code of Civil Procedure section 1032.

For a defendant to recover costs under Government Code section 12965(c)(6) the court must find “the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)

“The clerk has no authority to exercise discretion in awarding costs, let alone to make the frivolousness finding required by Government Code section 12965; the cost memorandum was therefore an ineffective means of seeking costs in this FEHA case. This same conclusion was drawn in Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015- 1016. In Anthony, the court concluded the appellant was not required to file a timely cost memorandum to preserve its right to seek expert costs