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SHALABY v. JACOBOWITZ

April 11, 2003

ANDREW SHALABY, PLAINTIFF,
v.
IRA JACOBOWITZ, SUSAN BURNETT LUTEN, DOES 1 THROUGH 100 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.

MEMORANDUM AND ORDER

This is a pro per suit brought by a lawyer challenging the constitutionality of California's anti-SLAPP statute and the practice of attorneys ghostwriting for ostensibly pro per litigants. Now pending before the Court is the defendant Ira Jacobowitz's motion to dismiss for lack of subject matter jurisdiction.

BACKGROUND

This case stems from a series of five prior lawsuits: four in which plaintiff served as counsel and a fifth in which plaintiff was sued by his former clients for malpractice.*fn1

2. Perez v. King: The first suit, Perez v. King, was a complaint for unlawful detainer, which plaintifi as attorney for the Perezes, filed against their tenant, Carolyn King. King appeared in pro per. The case was settled and it was agreed that King would vacate the premises and Perez family members would move in.
3. Perez v. Omura: While the unlawful detainer matter was pending, plaintiff, on behalf of the Perezes, sued Ann Omura, King's lawyer, who worked for Eviction Defense Center ("EDC"). At the heart of Perez v. Omura was the allegation that EDC lawyers had ghostwritten pleadings on behalf of King, who had appeared in pro per in Perez v. King. The complaint alleged causes of action for abuse of process, barratry, fraud and intentional infliction of emotional distress from Omura's representation The suit was dismissed on Omura's motion under California Code of Civil Procedure section 425.16, which provides a procedure for the early dismissal of an action deemed to be a "Strategic Lawsuit Against Public Participation" ("SLAPP suit"). Section 425.16 also provides for attorney's fees and costs to the prevailing party, and the Superior Court accordingly ordered the Perezes to pay approximately $31,776 to Omura and the EDC. Jacobowitz was not a party to this suit
4. Perez v. Jacobowitz: The Perezes, again represented by plaintiff brought another complaint challenging ghostwritten pleadings, this time based on California's Business and Profession Code. Defendants were the EDC and EDC attorneys Omura and Jacobowitz. This complaint was also dismissed as a SLAPP suit, and the Perezes were again ordered to pay attorney's fees and costs, this time in the amount of 17,290.
5. King v. Perez: Meanwhile, in contravention of the King v. Perez settlement agreement, the Perez family did not move onto the premises during the sixty-day period specified by Berkeley ordinance. King, represented by Jacobowitz, sued the Perezes for wrongful eviction. The case settled when King accepted damages of $75,000 in exchange for a release of all claims against the Perezes.
6. Perez v. Shalaby: Shortly thereafter the Perezes sued plaintiff for malpractice, stemming from his conduct in litigating or precipitating the previous four cases. The suit alleges generally that in handling the aforementioned lawsuits, plaintiff failed to exercise that degree of competence and skill possessed by attorneys who represent landlords. Jacobowitz is not a party to Perez v. Shalaby.
The present action was filed shortly after the Perezes sued plaintiff for malpractice. The complaint alleges the unconstitutionality of the SLAPP statute, asserting that it chills plaintiff's right to free speech and right to petition for redress of grievances, and violates the due process and equal protection clauses of the Fourteenth Amendment. The complaint also seeks damages against Jacobowitz under United States Code Title 42 section 1983, alleging that his representation of King constituted state action because Jacobowitz and the EDC received funding from the cities of Berkeley and Oakland. Plaintiff alleges that this representation was "responsible" for the damages sought by plaintiff's former clients, the Perezes, in the pending malpractice suit. Plaintiff also makes state law claims.

In particular, plaintiff asks for ten statements of declaratory relief relating to claims that section 425.16(c) is unconstitutional; that "attorney-ghostwriting of pleadings for ostensibly pro per litigants is unfair and unjust, should be enjoined, and warrants imposition of sanctions or other appropriate relief" and that "an attorney . . . engaged in unfair business practices, under color of [State law], may be liable under 42 U.S.C. § 1983." Complaint at ¶¶ 25, 28. Plaintiff also brings a claim for injunctive relief under section § 18 1983, and state law claims for abuse of process, violations of the California Unfair Business Practices Act, tortuous interference with contractual relations, tortuous interference with prospective economic advantage, defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Jacoboxvitz seeks dismissal of plaintiff's federal causes of action under Federal Rule of Civil Procedure 12(b)(1), and dismissal of plaintiff's state law causes of action under United States Code Title 28 section 1367(c).

The parties filed a stipulation for an extension of time for Susan Burnett Luten, the other defendant, to file a response to plaintiff's claim. Per this stipulation, Burnett Luten's response to plaintiff's complaint is due on April 14, 2003.

DISCUSSION

I. Applicable Legal Standards

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), even though defendant is moving to dismiss the complaint, plaintiff bears the burden of proving that this Court has jurisdiction to decide his case. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction") (citations omitted). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a cause of action which fails to state a claim upon which relief can be granted. On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Wyler-Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998). The court must draw all reasonable inferences in favor of the non-moving party. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The complaint "should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Hydranautics v. Filmtec Corp., 70 F.3d 533, 535-536 (9th Cir. 1995)).

II. Summary of Plaintiff's Argument

The Perezes, represented by plaintiff, twice sued EDC lawyers for their alleged ghostwriting in Perez v. King. The Perezes lost both times, incurring more than $47,000 in sanctions, and are now suing plaintiff for malpractice for his representation in these matters. In the present suit, plaintiff hopes to establish that ghostwriting is an impermissible practice and have prior sanctions awards against his clients voided. Plaintiff states that he intends to file a cross-complaint for indemnification against the EDC lawyers in the malpractice suit against him, but has hesitated for fear of a SLAPP judgment against him.

III. Strategic Lawsuit Against Public Participation Statute ("SLAPP")

Plaintiff asks for a declaration that California Code of Civil Procedure section 425.16 is unconstitutional because it chills the valid exercise of First Amendment rights.

A federal court is authorized to issue declaratory relief under United States Code Title 28 section 2201. Section 2201 provides that "[in] a case of actual controversy within its jurisdiction . . . a court of the United States . . . may declare the rights and other legal relations of any interested party ...


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