Perez v. Kouretas

Filed 9/4/13 Perez v. Kouretas NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

RAFAEL PEREZ et al., C068234

Plaintiffs and Appellants, (Super. Ct. No. 34201000086964CUCOGDS) v.

JAMES KOURETAS,

Defendant and Respondent.

Plaintiffs Rafael Perez (Rafael), Pedro Perez (Pedro), and David Hurley (Hurley) (sometimes collectively, plaintiffs) appeal the trial court‟s order granting defendant James Kouretas‟s special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16 (hereafter § 425.16)). We conclude the court erred in granting the anti-SLAPP motion and reverse the order and judgment of dismissal as well as the attorney‟s fee award in Kouretas‟s favor.

1

FACTS AND PROCEEDINGS The following facts are taken from plaintiffs‟ complaint and the declarations supporting and opposing the motion to strike. Faye Stearns, an elderly woman, owned a card room in Sacramento called Duffy‟s. She held the gambling license for the establishment. In December 2004, Duffy‟s was destroyed by a fire. Although Stearns wanted to reopen the business, she did not have the financial means to do so. Through acquaintances at the card room, Rafael learned that Stearns was seeking help to reopen Duffy‟s. Stearns and Rafael met several times following the fire. On January 7, 2005, they executed a written partnership agreement to reopen the card room (Rafael-Stearns Agreement). That same day Stearns also executed a Gambling Control Commission form designating Rafael as her agent to “represent all of [D]uffy‟s future license transactions, Table fees, and business promotions,” and, as her designated agent, Rafael submitted an application to the Gambling Commission to renew Stearns‟s state gambling license. The Rafael-Stearns Agreement lists the nature of the partnership‟s business as “Card Room License (Game Room).” According to the agreement, Rafael and Stearns would contribute capital and split profits and losses on a 60-40 percent basis, respectively. Rafael was to have sole control over managing the business and was responsible for paying all start up expenses, including application and licensing fees and employee salaries. The place of business in Sacramento was yet to be determined. The partnership between Rafael and Stearns was to last five years; Rafael would then become the sole owner of the business. The Rafael-Stearns Agreement was assignable, and Stearns did not object to Rafael securing investors to fund the project. Rafael contacted his father, Pedro, and Hurley to invest in the card room. By early February, Rafael, Hurley and Pedro executed an agreement entitled “Duffy‟s Card Room Agreement[:] Statement to Establish a Business Partnership” (Perez-Hurley Agreement)