Bian vs. Latreill

The third from the last paragraph shall read:

Here, Plaintiff has not asserted claims for false imprisonment, wrongful termination or civil rights violations. The claim is that he was personally injured while working. Plaintiff has not shown any

applicable exception to workers’ compensation exclusivity. Nor has Plaintiff demonstrated that these pleading defects can be cured by amendment. Nonetheless, as this is Plaintiff’s first attempt to plead his claims, the Court will grant leave to amend.

Defendant Certified Enterprises, Inc. to give notice.

112 Bian vs. Latreill Anti-SLAPP Motion

Plaintiff/Cross-Defendant Wenqiang (“Wayne”) Bian (“Bian”) moves to strike the second and third causes of action from Defendant/Cross-Complainant Rene Francis (“Ray”) LaTreill’s (“LaTreill”) Cross- Complaint (“XC”) pursuant to Code of Civil Procedure section 425.16.

Code of Civil Procedure section 425.16 provides, in relevant part: “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 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(a).)

Code of Civil Procedure section 425.16(e) sets forth four categories of protected speech for an anti-SLAPP motion, which includes “any written or oral statement or writing made before a . . . judicial proceeding.” (Code Civ. Proc., § 425.16(e)(1).)

The court’s determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party’s right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Assn. (2006) 136 Cal.App.4th 464, 476 [emphasis in original; internal quotes omitted].)

Here, the Cross-Complaint’s second cause of action for “breach of contract – conflict waiver agreement” and third cause of action for “promissory estoppel – promise not to sue” allege that Bian breached the Conflict Waiver Agreement and breached his promise not to bring claims against LaTreill by filing this lawsuit. (XC ¶¶ 39, 46.) Thus, the claims are based on statements made before a judicial proceeding and therefore arise out of protected speech.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Wells Fargo Bank, Na. v. FSI,

Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.)

Both of the challenged claims involve an element of damages. LaTreill contends he has made a prima facie showing of damages in that he has incurred and continues to incur attorney’s fees, costs, and other expenses defending against claims Bian promised not to bring and prosecuting the cross-complaint. (Oppn. at 14:20-23; 16:4-7.)

“California follows the American rule regarding attorney's fees. Under that rule, litigants are ordinarily responsible for paying their own attorney's fees, unless a statute or agreement provides otherwise. (Travis v. Brand (2023) 14 Cal.5th 411, 417 (citing Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1257; Code Civ. Proc., § 1021.) Another exception is that “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred.” (De La Hoya v. Slim's Gun Shop (1978) 80 Cal.App.3d Supp. 6, 8.)

As observed by the Court in De La Hoya v. Slim’s Gun Shop:

In Pacific Coast Title Ins. Co. v. Hartford Accident & Indemnity Co. (1958), 7 Utah 2d 377, 325 P.2d 906, at page 907, the court recognized the rule that attorney fees are not generally recoverable unless expressly provided for by contract or statute. It stated, however, that the rule applies only to claims for attorney fees within the action itself (exactly as Prentice v. North America Title Guarantee Corp., supra, had stated (59 Cal.2d, at pp. 620-621.)).

(De La Hoya v. Slim's Gun Shop (1978) 80 Cal.App.3d Supp. 6, 10.)

In this case, the purported agreement does not address attorney’s fees. (See Bian Decl., Exh. 8.) Further, LaTreill points to no statute or any provision that would allow him to recover attorney’s fees and costs as damages. The cases cited by LaTreill in support of his argument that attorney’s fees may be recovered as damages involved contracts with attorney’s fees clauses.

As LaTreill has not met his burden of proof, the motion is GRANTED.

Attorney’s fees and costs to be determined pursuant to Code Civ. Proc., § 425.16(c)(1) via noticed motion.

Bian’s objections to the LaTreill declaration are OVERRULED.

The Court declines to rule on LaTreill’s objections to Bian’s declaration as they are immaterial to the disposition of this motion.

Moving Party to give notice.