Den Beste v. DeMeo

Filed 8/28/07 Den Beste v. DeMeo CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

A breach of contract action by attorneys against a former client resulted in a money judgment for the attorneys. When the attorneys filed an abstract of their judgment, the disgruntled former client filed suit for tort damages allegedly caused by that filing. The attorneys brought a special motion to strike the complaint under Californias anti-SLAPP statute (Code Civ. Proc.,  425.16) on the ground that the filing of the abstract was not actionable because it was covered by the litigation privilege codified in Civil Code section 47, subdivision (b). The trial court granted the attorneys motion, and the former client appealed.

Our independent review leads us to the same conclusion as the trial court, that the filing of the abstract was absolutely privileged. In light of that determination, we further conclude that all of the former clients causes of action are legally deficient and that, in consequence, there was no probability he would prevail on any of his causes of action. Finally, we reject the former clients contention that the filing is exempt from the anti‑SLAPP statute because it qualifies as commercial speech. We thus affirm.

BACKGROUND

In June 2004, attorneys John F. DeMeo and Bradford J. DeMeo (collectively the DeMeos) sued Paul Den Beste for breach of contract. The DeMeos alleged that they had a written agreement to provide legal services to Den Beste; that they provided such services; and that Den Beste had failed to pay as agreed.^[1] After a trial on the merits,[2] the DeMeos obtained judgment in their favor in the amount of $17,879.34. In October 2005, they recorded an abstract of judgment for this amount against Den Beste.

On February 2, 2006, Den Beste filed a complaint for damages against the DeMeos, alleging six causes of action, styled for: slander of title; intentional infliction of emotional distress; extortion; civil harassment; malice; and slander of credit. The complaint was drafted by Den Beste, who at all pertinent times has chosen to represent himself, as he does here. The complaint opened with a recital of indisputable facts, from which Den Beste concluded that the abstract of judgment was absolutely void because the DeMeos breach of contract complaint was absolutely indisputedly time barred under California Code of Civil Procedure 337 & 339. Den Beste alleged that the abstract was a violation of 18 U.S.C.  513-514 and Penal Code sections 115. and 115.5, and was filed in order to commit an extortion upon Plaintiff in violation of California Penal Code Sections 518, 519, 520 and 521. Said violations also were alleged to violate Den Bestes inalienable rights protected and recognized in the California Constitution Article I.

With respect to his specific causes of action, Den Beste alleged that the abstract was recorded: (1) for the express purpose to slander Plaintiffs various real properties, which in fact has occurred; (2) with the intent to cause Plaintiff emotional distress, which in fact has and continues to occur; (3) in anticipation that Defendants will seek, under further color of law, the official services of the Sheriff, and thus, extortion in violation of Penal Code 518, 519, 520, and 521; (4) with the intention to harass Plaintiff, which has and continues to occur; (5) with the harmful intention and desire to inflict injury and harm upon Plaintiff, which in fact has and continues to occur; and (6) with the harmful intention and desire to slander Plaintiffs credit . . ., which in fact has and continues to occur. Den Beste prayed for compensatory and punitive damages of not less than $20 million.

On March 23, 2006, the DeMeos filed their motion to strike Den Bestes complaint in its entirety under the anti-SLAPP statute, Code of Civil Procedure, section 425.16^[3]. The grounds for the motion were that because each of plaintiffs purported causes of action is based on defendants recording of an Abstract . . ., each of them are barred by the litigation privilege of Civil Code  47. Thus plaintiff cannot allege, much less establish, a prima facie case against defendants. . . . However plaintiff may choose to label his claims, they all sound in tort and . . . are therefore all subject to the litigation privilege. The motion also sought an award of attorney fees and costs of $5,664.70.

Den Bestes opposition to the motion was essentially based on section 425.17, subdivision (c), which excludes from the anti-SLAPP procedure any cause of action brought against a person primarily engaged in the business of selling . . . goods or services, when the actionable conduct or statement was made in the course of delivering those goods or services. Den Beste argued that as attorneys the DeMeos were engaged in a mere commercial transaction within the meaning of section 425.17, subdivision (c)(1), and were thus precluded from using the anti-SLAPP mechanism to the simple breach of professional services contract that underlay the current litigation.

The tentative ruling posted by the trial court was as follows: Motion to strike is granted pursuant to [Code of Civil Procedure, section] 425.16. Upon consideration of all relevant pleadings and evidence, the court finds the defendants have made the requisite showing that the causes of action alleged in the complaint arise from protected activity. Plaintiff, however, has not made a sufficient showing of probability of success in connection with his complaint. Plaintiff has not submitted sufficient evidence to support his burden, and would be precluded from establishing probability of success by reason of the litigation privilege under [Civil Code] 47. Plaintiff is also entitled to reasonable attorney fees and costs under [section] 425.16 in the sum of $5,660. Plaintiffs attorney to prepare and serve a proposed order and statement of decision.

The last two sentences of the ruling, which we have italicized, caused some confusion between the parties in preparing a final form of order for filing. The situation was corrected when, after Den Beste did not request a hearing to contest the tentative ruling, the trial court filed its formal order granting the motion to strike Den Bestes complaint and awarding the DeMeos attorney fees and costs of $5,660.[4]

After the trial court denied his motion to vacate the order, Den Beste perfected this timely appeal.

DISCUSSION

General Principles of the anti-SLAPP statute

A SLAPP suita strategic lawsuit against public participationseeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).) Because these meritless lawsuits seek to deplete the defendants energy and drain his or her resources [citation], the Legislature sought  to prevent SLAPPs by ending them early and without great cost to the SLAPP target  [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary‑judgment-like procedure at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; accord, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).)

The anti-SLAPP statute explains the category of claims it is intended to reach and the means of its expedited procedure. A cause of action against a person arising from any act of that person in furtherance of the persons 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. ( 425.16, subd. (b)(1).) As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . . (Id., subd. (e).) To effectuate the Legislatures goals, the statute is to be given a broad construction. (Id., subd. (a).)

In ruling on an anti-SLAPP motion to strike, the trial court undertakes a two-step process. First, the court decides whether the defendant has made made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendants] right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

With respect to the first step of this process, the court looks first at the essence of the defendants words or conduct for which the plaintiff is trying to attach liability. [T]he statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The labels the plaintiff assigns to the causes of action do not control the analysis: The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (Navellier v. Sletten, supra, 29 Cal.4th at p. 92; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187 [a plaintiff cannot avoid operation of the anti-SLAPP statute . . . through artifices of pleading].) [I]t is the principal thrust or gravamen of the plaintiffs cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute. (Martinez v. Metabolife Internat., Inc., supra, at p. 188.)

In deciding the second part of the inquiry, though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. 10.) And while the court must  accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendants evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. [Citation.] (Soukup, supra, 39 Cal.4th 260, 269, fn. 3), the defendants evidence prevails as a matter of law if it establishes a defense or negates a necessary element of the plaintiffs claim. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

An appellate court independently reviews the trial courts order granting or denying a special motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Soukup, supra, 39 Cal.4th 260, 269, fn. 3.) As we recently explained the scope and nature of such review, it includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [plaintiffs] causes of action arose from acts by [defendant] in furtherance of [defendants] right of petition or free speech in connection with a public issue. [Citation.] Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [plaintiff] has established a reasonable probability that he would prevail on his claims. [Citation.] (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645; accord, Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609-610.)

The DeMeos Motion to Strike Was Correctly Granted

Although Den Beste purported to allege a variety of causes of action, their common core is the filing of the abstract of judgment by the DeMeos. Based on the indisputable facts listed at the start of his complaint, it is clear that Den Beste viewed the abstract as having been filed with a number of false fictionsi.e., claimed misrepresentations concerning the underlying judgment in the DeMeos breach of contract action. Each and every one of the causes of action was expressly alleged by Den Beste to be based on the false fictions ABSTRACT OF JUDGMENT. And by invoking Penal Code sections 115 and 115.5, Den Beste treated the abstract as a false and forged document.

The recording of an abstract of judgment is but a continuation of litigation, a preparatory step to executing on the judgment. ( 674; Laubisch v. Roberdo (1954) 43 Cal.2d 702, 707; Sampsell v. Straub (9th Cir. 1951) 194 F.2d 228, 230.) One Court of Appeal termed it an extension of the judicial process that is logically and legally related to the realization of a litigation objectivethat is, collection of a judgment (OKeefe v. Kompa (2000) 84 Cal.App.4th 130, 134-135 (OKeefe))and thus within the privilege granted by Civil Code section 47, subdivision (b), that A privileged publication or broadcast is one made: [] . . .[] (b) In any . . . judicial proceeding . . . . OKeefe comes close to being dispositive here, but it was not an anti-SLAPP case and did not address whether the anti‑SLAPP statute would require a different conclusion.

The threshold issue here in determining whether Den Bestes complaint was subject to the anti-SLAPP statute is whether the filing of the abstract by the DeMeos qualified as protected activity. (Rusheen, supra, 37 Cal.4th 1048 at p. 1056.) And Rusheen leads to the conclusion that it did.

In Rusheen, attorney Cohen had been sued by Rusheen for abuse of process, i.e., attempting to execute on a default judgment that was eventually reversed on appeal. The trial court reasoned that Cohens conduct was covered by the litigation privilege and there was thus no reasonable probability Rusheen could prevail, and granted Cohens special motion to strike. (Rusheen, supra, 37 Cal.4th 1048 at p. 1054.) The Supreme Court framed the issue before it as follows: Are actions taken to collect a judgment, such as obtaining a writ of execution and levying on a judgment debtors property, protected by the litigation privilege of Civil Code section 47, subdivision (b), as communication[s] in the course of a judicial proceeding? The courts conclusion was that where the cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act. In this case, because the claim for abuse of process was based on the communicative act of filing allegedly false declarations of service to obtain a default judgment, the postjudgment enforcement efforts, including the application for writ of execution and [the] act of levying on property, were protected by the privilege. (Id. at. p. 1052.)

The court began its analysis by establishing that the tort of abuse of process consists of misuse of the courts process for an improper purpose. (Rusheen, supra, 37 Cal.4th 1048, 1056-1057.) It then examined the nature and scope of the litigation privilege, noting that  communications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege. (Id. at p. 1057, quoting Rubin v. Green (1993) 4 Cal.4th 1187, 1193.) Significantly, the court accepted that the privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (Ibid.)

The court then explained what constitutes a communication protected by the privilege: Because the litigation privilege protects only publications and communications, a threshold issue in determining the applicability of the privilege is whether the defendants conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature. [Citations.] (Rusheen, supra, 37 Cal.4th 1048, 1058.) Even abuse of process claims alleging the filing of false or perjurious testimony or declarations can qualify as communicative, and thus protected. (Ibid.)

Next, the court considered a number of Court of Appeal decisions which had held that the litigation privilege applied to postjudgment collection activities alleged to constitute abuse of process. One of those decisions was OKeefe, supra, 84 Cal.App.4th 130, where, as previously noted, one of the defendants acts was filing an allegedly fraudulent abstract of judgment. The Supreme Court summarized the OKeefe result: The Court of Appeal held that those efforts to enforce the judgment were privileged because they were an extension of th[e] judicial process and were logically and legally related to the realization of a litigation objectivethat is, collection of a judgment. [Citation.] The court reasoned that the fact the conduct occurred outside the courtroom and after trial (rather than before or during trial, as in the vast majority of cases) was immaterial. [Citation.] (Rusheen, supra, 37 Cal.4th 1048, 1059-1060.)

Rusheen also cited our decision in Merlet v. Rizzo (1998) 64 Cal.App.4th 53, where we held that the litigation privilege extended to the attorney-defendants unsuccessful attempt to obtain a writ of sale, because that was an action clearly permitted by law in the course of a judicial proceeding. (Id. at pp. 65-66.) The court also cited Brown v. Kennard (2001) 94 Cal.App.4th 40, which involved an attorney sued for abuse of process after he obtained a writ of execution and tried to levy upon the plaintiffs exempt funds, and where the Court of Appeal, following OKeefe and Merlet, held that the application for the writ was privileged because it was an extension of a judicial proceeding and related to a litigation objective. (Id. at pp. 49-50.)

Stating that it agreed with these decisions, the court in Rusheen then examined several policy considerations favoring, and opposing, extending the litigation privilege to actions intended to collect or execute on a judgment, concluding that on balance the factors favored extension: the salutary policy reasons for an absolute [litigation] privilege supersede individual litigants interests in recovering damages for injurious publications made during the course of judicial proceedings. (Rusheen, supra, 37 Cal.4th 1048, 1064.) Extending the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act is consistent with public policy considerations. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. (Id. at p. 1063.)

The opinion then moved to its end: [W]e conclude that if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct . . . . Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies. [] . . . Because the trial court correctly found that there was no reasonable probability Rusheens abuse of process claim would prevail on the ground Cohens allegedly wrongful conduct was privileged (Civ. Code,  47, subd. (b)), it properly granted the anti-SLAPP motion . . . . (Rusheen, supra, 37 Cal.4th 1048, 1065.)

The DeMeos argue in their brief that the setting here is factually analogous to, and legally indistinguishable from, Rusheen. The trial court evidently agreed with this assessment, as there are three citations to Rusheen, and no other case, in the formal order granting the DeMeos special motion to strike. Following our independent review of the record, we agree.

First, there can be no doubt that Den Beste is challenging communicative actions by the DeMeos. The actions at issue include not only the filing of the abstract of judgment, but a number of statements attending the abstract.[5] The undisputed thrust or gravamen of Den Bestes complaint seeks to hold the DeMeos liable for those communicative actions. (Navellier v. Sletten, supra, 29 Cal.4th 82, 92; Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th 181, 188.)

Second, it is no less clear that what the DeMeos did qualifies as protected speech for purposes of the anti-SLAPP statute, a conclusion which follows from the analysis in Rusheen of what is privileged under Civil Code section 47, subdivision (b). Under that analysis, the filing of an abstract is an established continuation of litigation efforts. Even if, as Den Beste alleged, the abstract was attended by perjurious statements (and there is no evidence of this), that does not remove it from the litigation privilege. (Rusheen, supra, 37 Cal.4th 1048, 1058.) And because the abstract is expressly authorized by a statute ( 674), it is not illegal. (See Merlet v. Rizzo, supra, 64 Cal.App.4th 53, 65-66 [privilege applies to action if clearly permitted by law in the course of a judicial proceeding].) There is, in short, no basis for viewing it, as does Den Beste, as outside the scope of the privilegeand the anti-SLAPP statuteby reason of illegality. (Cf. Flatley v. Mauro, supra, 39 Cal.4th 299, 317, 320 [demand letter amounting to extortion not protected]; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296-1297 [orchestrated campaign of physical and emotional harassment, including bombings and home invasions, not protected ].)

In sum, the abstract was protected by the litigation privilege because it was  extension of th[e] judicial process and [was] logically and legally related to the realization of a litigation objectivethat is, collection of a judgment. (Rusheen, supra, at pp. 1059-1060, quoting OKeefe, supra, 84 Cal.App.4th 130, 134-135.) That privilege applies to preclude derivative tort liability.[6] And it is absolute. (Flatley v. Mauro, supra, 39 Cal.4th 299, 322; Rusheen, supra, at pp. 1062-1063.)

Lastly, in light of the foregoing, the filing of the abstract of judgment was protected because it was made in connection with a judicial proceeding. ( 425.16, subd. (e).) Thus, Den Bestes complaint is based exclusively on statements that are absolutely privileged. And because the DeMeos established that absolute defense, they also established that there was no reasonable probability Den Beste could prevail on the merits. (Id., subd. (b)(1); Rusheen, supra, 37 Cal.4th 1048, 1065; Carver v. Bonds, supra, 135 Cal.App.4th 328, 344.)

The Exception to the anti-SLAPP Statute Established

by Section 425.17 Does Not Apply

Den Beste fundamentally argues that the order striking his complaint must be reversed because he is not seeking to impose liability on the DeMeos for anything that qualifies as protected speech, but is seeking damages as the victim of mere commercial speech which the Legislature has excepted from the scope of the anti-SLAPP statute. Such argument relies on section 425.17. It is not availing.

Section 425.17 was enacted in 2003 (Stats. 2003, ch. 338,  1), by a Legislature which had found that there has been a disturbing abuse of Section 425.16. ( 425.17, subd. (a).) So, the Legislature specified a number of situations where the anti-SLAPP statute would not apply, one of which was defined as follows:

(c) Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:

(1) The statement or conduct consists of representations of fact about that persons or a business competitors business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting or securing sales or leases of, or commercial transactions in, the persons goods or services, or the statement or conduct was made in the course of delivering the persons goods or services.

(2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue. ( 425.17, subd. (c) (subdivision (c).)

Den Beste assigns section 425.17 a very broad reach, seeing it as applicable to every setting that has a commercial context. His dispute with the DeMeos is entirely and exclusively commercial in nature, Den Beste argues, because the DeMeos are in the business of selling their services as attorneys. The underlying agreement with him was a commercial contract, he contends, and the statements/conduct at issue were made in that context. Finally, the DeMeos purpose in filing suit against Appellant for alleged breach of the . . . contract was to advance their financial self interest by forcing Appellant, a former client, into court proceedings which are costly and commercial in nature. Den Bestes reading of subdivision (c) is unconvincing.

Granted, the vast majority of attorneysand virtually every person who provides labor or services for payare not motivated exclusively by eleemosynary impulses. They do recognize the profit motive. It may also be conceded that most attorneys who accept private clients are primarily engaged in the business of selling . . . services. The DeMeos were doubtless motivated by a pecuniary impulse when they sued Den Beste for the monetary values of legal services they had provided him. Nevertheless, the fact that litigation is set against the backdrop of a commercial setting does not transform it into what the Legislature meant to exempt from the anti-SLAPP statute.

To begin with, the subject of Den Bestes causes of action, the filing of the abstract of judgment, does not fit comfortably under the mantle of commercial speech. None of the reported decisions discussing section 426.17whether holding it applicable or notremotely resemble what the DeMeos did. (See, e.g., Sunset Millennium Associates v. LHO Grafton Hotel (2006) 146 Cal.App.4th 300 [claim that defendant breached contract by statements made in administrative proceedings and prior lawsuit not within  425.17]; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834 [promises made in settling prior lawsuit not within  425.17]; Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324 [allegedly false statements made in connection with corporate restructuring within  425.17]; Physicians Com. for Responsible Medicine v. Tyson Foods, Inc. (2004) 119 Cal.App.4th 120 [poultry producers allegedly false statements about products within  425.17].) Nor, we note, do any of the cases involve professionals engaged in providing services.

The decisions have a common theme that can be discerned from a careful examination of subdivision (c), the crucial part of section 425.17. The subdivisions opening languagea person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instrumentsdoes appear, as the DeMeos argue, to focus on types of commercial transactions more characteristic of advertising or marketing of any products or services, which is the traditional benchmark of commercial speech. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 956, 960-961; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 486-487.) The statutory language does not seem compatible with the ordinary practice of law.

More significant, and devastating to Den Bestes argument, is the remainder of the language in subdivision (c)(1). To be exempt from the anti-SLAPP statute, the defendants statement or conduct must consist[] of representations of fact about that persons or a business competitors business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting or securing sales or leases of, or commercial transactions in, the persons goods or services, or the statement or conduct was made in the course of delivering the persons goods or services. An attorney who, like the DeMeos here, files an abstract of judgment against a former client seeking money owed for services already rendered is hardly making a representation[] of fact about that persons . . . services. Even less likely is the attorney making a representation[] of fact about . . . a . . . competitors . . . . services. If matters have reached the point where an attorney has already obtained a judgment against a former client for nonpayment, the attorney is certainly not promoting or securing future transactions in[ the attorneys] services from the party being sued. Nor can any such statement or conduct by the attorney be deemed in the course of delivering . . . serviceswhich have already been delivered.

The language of subdivision (c)(2) is equally unhelpful to Den Beste. An attorney suing a former client for fees is hardly likely to be intending to communicate with an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer. Litigation caused by the break-down of a former attorney-client relationship does not sound like an advertising lure for new clients. And what the DeMeos did was certainly not connected with a regulatory approval process, proceeding, or investigation.

In construing statutes, courts must take account of the consequences a particular construction would entail. (E.g., In re J. W. (2002) 29 Cal.4th 200, 213; Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977-978.) Den Bestes approach to what constitutes commercial speech for purposes of section 425.17 comes close to being all-inclusive, as it is a rare dispute that does not have money or pecuniary interest as a motive or a consideration in some form. Put another way, it is hard to imagine what kind of litigation could still be protected by section 425.16 under Den Bestes view, particularly because Den Beste envisages the judicial process as itself being commercial in nature. In short, what Den Beste proposes would make section 425.17, subdivision (c), the exception that would swallow the rule, virtually eviscerating the anti-SLAPP statute of a great deal of its effectiveness. We have consulted the legislative history of section 425.17, and have found nothing to suggest that the Legislature intended such a preposterous result. Section 425.17 does not stand in the way of the DeMeos motion to strike.

In conclusion, we have determined from our independent review of the record that the motion to strike was correctly granted because Den Bestes complaint was both legally insufficient and without reasonable probability of success on the merits. ( 425.16, subd. (b)(1); Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th 811, 821.)[7]

DISPOSITION

The order of dismissal is affirmed. The DeMeos are entitled to costs and attorney fees on appeal ( 425.16, subd.(c)), the amounts to be determined by the trial court.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] The DeMeos complaint states that it has five pages, but only the first two have been included in the record. Den Bestes wife was also named as a defendant, but she plays no part in the current litigation.

[2] Support for this statement appears from the documents attached to Den Bestes complaint. The abstract of judgment recites that the underlying judgment was entered on October 11, 2005; and there are excerpts of a reporters transcript for October 11, 2005, when Bradford DeMeo testified before Judge Elaine Rushing of the Sonoma County Superior Court.

In his brief, Den Beste states that Judge Rushing is corrupt, and that she joined with the DeMeos in a criminal conspiracy . . . to issue a false fraudulent void judgment. Such claimed conspiracy is repeated in an Updated Certificate of Interested Parties Revealing Potential Conflict of Interest of First District Court of Appeal [sic] Judge Conrad Rushing, filed on February 15, 2007. There is absolutely nothing in the record before us to provide the least support for these scurrilous accusations.

[3] Statutory references are to this code unless otherwise indicated.

[4] Den Beste vehemently insists that the initial tentative ruling is the only valid order before us, and that the trial court lacked any legitimate authority to amend it. This is not correct. The trial court, like any court, had the inherent power to correct errors in an order (particularly one that was purely interim or interlocutory) so that it reflected the courts actual intended ruling. (E.g., Le Francois v.Goel (2005) 35 Cal.4th 1094, 1108-1109; In re Candelario (1970) 3 Cal.3d 702, 705; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment,  69, p. 597.)

[5] Den Beste states in his brief that all of his causes of action are based on the 26 indisputable facts detailed in his complaint. A fair number of those facts deal with factual recitals made by the DeMeos on the abstract, such as listing themselves as the judgment creditor and Den Beste as the judgment debtor on the basis of a judgment entered on October 11, 2005.

[6] Den Beste concedes at the start of his brief that he is seeking to impose only tort liability, not liability based on contract. (See Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1491-1494 [privilege does not apply to breach of contract action by client against former attorney].)

[7] Miscellaneous other arguments Den Beste advances rely on materials and considerations that are not germane to our review. For example, Den Beste repeatedly emphasizes an arbitration conducted by the Sonoma County Bar Association in March 2004, which he reports was resolved in his favor. We merely note that, if such a proceeding were conducted, and if it had any relevance to his dispute with the DeMeos, the time to have argued it was in the subsequent trial before Judge Rushing. The same is true for the purported violations of the State Bar Act and State Bar rules allegedly committed by the DeMeos, and Den Bestes contention that the DeMeos complaint was time-barred. (See Crane v. Cummings (1902) 137 Cal. 201, 202 [judgment not void because statute of limitations had run on complaint].)