Howden US Services, LLC vs. Acrisure of California, LLC

First Prong – Protected Activity

A claim may be struck pursuant to section 425.16 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.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884). “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, 1 Cal.5th at 394 [cleaned up]; see also Newport Harbor Offices v.

Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43.) While the California Supreme Court has rejected the “gravamen” test to evaluate anti-SLAPP motions directed to an entire cause of action or complaint, the court did not disprove of its use when used to determine the acts on which liability is based or whether protected activity allegations are incidental to background. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1011-1012.)

CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 270-271, provides instructive examples of when a lawsuit filed after a protected activity arising from the protected activity. CKE cites to Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 and City of Cotati v. Cashman (2002) 29 Cal.4th 69 as examples.

Equilon is particularly instructive. There, a consumer group, Consumer Cause, Inc., filed a Proposition 65 notice against the successor-in-interest to two oil companies. It alleged that the oil companies had polluted the groundwater by discharging benzene, toluene and lead into the soil. Rather than respond to the notice, Equilon filed an action for declaratory and injunctive relief. It claimed that the notice had not been properly served and sought a declaration that the notice failed to comply with the California Code of Regulations by not describing the toxic discharges with sufficient particularity.

It also sought an injunction barring Consumer Cause from filing a Proposition 65 enforcement action. Consumer Cause moved to strike Equilon's complaint under the anti-SLAPP statute. The court concluded that the pleadings and affidavits established that Equilon's actions arose from Consumer Cause's act of filing a Proposition 65 notice and was therefore subject to a motion to strike. (Equilon, supra, 29 Cal.4th 53, 67.) Cotati illustrates the opposite situation—a lawsuit was filed after the protected activity took place, yet did not arise from that activity.

In Cotati, a group of mobilehome park owners challenged the constitutionality of a rent stabilization ordinance. The owners filed a declaratory relief action in federal court alleging that the city's ordinance constituted a taking. The city claimed the ordinance was constitutional and filed a declaratory relief action in state court in an attempt to gain a more favorable forum in which to litigate the matter. The mobilehome park owners moved to strike the city's complaint, alleging that the city's action constituted a SLAPP suit.

The Supreme Court disagreed, concluding that both actions concerned constitutionality of the ordinance. The city's complaint referred to the validity of the ordinance, but made no reference to the federal action itself, and therefore was not subject to a motion to strike. (Cotati, supra, 29 Cal.4th 69, 79-80.) (CKE, supra, 159 Cal.App.4th 262, 270-271.)

Plaintiffs’ lawsuit is similar to the claims in Cotati and dissimilar to the claims in Equilon and CKE. Similar to Cotati, both lawsuits relate to the same subject matter, the enforceability of certain contract provisions. Unlike Equilon and CKE Plaintiffs did not quote Defendants’ lawsuits, they merely reference them as evidence of a controversy; they do not challenge the permissibility of Defendants’ act of filing their lawsuits; nor do they arise wholly from Defendants filing their lawsuit. Thus, Defendants have failed to establish the first prong and their motion fails.

Attorney’s Fees

“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16(c)(1).)

The Court finds Defendants had a good faith argument that their claims were more similar to Equilon and CKE than Cotati and, thus, the Motion was not frivolous or filed solely for the purpose of delay. The delay in discovery was incidental or merely one factor contributing to the filing of the Motion. Therefore, Plaintiffs’ request attorney’s fees is denied.

7 25-01524396 Motion to Set Aside/Vacate Default

Livers vs. Beamer Defendant Tyson Beamer’s Motion to Set Aside Default is MOOT in light of this Court signing the parties’ stipulation to set aside default.

8 20-01146344 Motion for Attorney Fees

Mena vs. 3711 West Plaintiff’s Motion for Post-Judgment Attorney Fees and Costs on Balboa Blvd Appeal against Defendant Christopher P. Schroeder is GRANTED. Homeowners' Association Procedural History:

This Court entered judgment on the arbitration award in favor of Plaintiff against Defendant Schroeder on 1/30/24. The judgment included monetary damages and non-monetary relief and provided interest of 10% per annum would accrue until the judgment was paid. Defendant appealed and the appellate court issued an opinion affirming the judgment on 12/4/25.

The appellate court stated Plaintiff is “to recover her costs (including attorney fees) incurred on appeal. The trial court is directed to award [Plaintiff] all reasonable fees and costs on appeal.” (Opinion, p. 19, emphasis in original.) The opinion directed this Court to “award [Plaintiff] all reasonable attorney fees and costs incurred on appeal including but not limited to those fees incurred responding to this court’s order regarding sanctions, and those fees incurred after this opinion is filed.” (Id. at p. 18.)

Plaintiff now moves for an order that Defendant Schroeder pay (1) attorney fees on appeal totaling $49,648.50, (2) costs of $729.25, (3) post-judgment interest of $35,997.76, and (4) fees incurred in related bankruptcy proceedings totaling $41,101.00.

Legal Standard:

A party seeking an award of fees has the burden of establishing entitlement to an award, and of documenting the appropriate hours