OptimisCorp v. Zilberman CA2/8

Filed 9/2/15 OptimisCorp v. Zilberman CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

OPTIMISCORP, B256442

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC121529) v.

LEONID ZILBERMAN et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard A. Stone, Judge. Affirmed. Ogloza Fortney, Darius Ogloza, David Fortney and Brian D. Berry for Plaintiff and Appellant. Robie & Matthai, Edith R. Matthai and Kyle Kveton for Defendants and Appellants Leonid Zilberman and Wilson Turner Kosmo LLP. Van Vleck Turner & Zaller, Daniel J. Turner, and Damion D. D. Robinson for Defendant and Appellant Laura Brys.

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A SLAPP suit is “a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved of on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In response to SLAPP suits, the Legislature enacted Code of Civil Procedure section 425.16,1 known as the anti-SLAPP statute, which permits early dismissal of SLAPP suits. Section 425.16 provides in pertinent 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 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.” (§ 425.16, subd. (b)(1).) The test for analyzing an anti-SLAPP motion is well established. “In ruling on an anti-SLAPP motion, the trial court conducts a two-part analysis: The moving party bears the initial burden of establishing a prima facie case that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity, as defined in the anti-SLAPP statute. [Citations.] If the moving party meets its burden, the burden shifts to the plaintiff to establish a probability that he or she will prevail on the merits.” (Anderson v. Geist (2015) 236 Cal.App.4th 79, 84.) The second step is necessary only if the defendant satisfies its burden on the first step. (Id. at p. 85.) In the context of a claim for legal malpractice, there is no categorical bar to the anti-SLAPP statute. (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1170 (Fremont Reorganizing).) But, the anti-SLAPP statute does not apply when the gravamen of the lawsuit does not concern a statement made in connection with litigation but instead concerns the breach of a professional duty. (Ibid.) In this lawsuit alleging legal malpractice and breach of attorneys’ fiduciary duties, the trial court concluded that the principal thrust was the breach of professional duties, and we agree.