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Personal Court Reporters, Inc v. Gary Rand et al

April 20, 2012


APPEAL from an order of the Superior Court of Los Angeles County, Michael Harwin, Judge. (Los Angeles County Super. Ct. No. LC089469)

The opinion of the court was delivered by: Suzukawa, J.



Defendants Gary Rand and Suzanne Rand-Lewis appeal from the order denying their special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. Finding no error, we affirm the order of denial. We also conclude the appeal is frivolous and award attorney fees to plaintiff.


Plaintiff Personal Court Reporters, Inc. filed a complaint for breach of contract and common counts against defendants "Gary Rand DBA Rand & Rand-Lewis and Suzanne Rand-Lewis DBA Rand & Rand-Lewis." The complaint alleged that pursuant to the parties' agreement, plaintiff had provided court reporting services for which defendants owed a balance of $32,323.45 plus interest.

Defendants filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, which was based on the following assertions: Both defendants are attorneys who, through their respective professional law corporations, represented clients in prior lawsuits. Plaintiff provided court reporting services to defendants' clients in the prior lawsuits. On behalf of their clients, defendants protested that plaintiff's court reporting fees were "illegal, excessive, and unnecessary." In retaliation for those protests, plaintiff sued defendants in their individual capacities (even though they are not individually liable for the disputed fees) and under the nonexistent "DBA Rand & Rand-Lewis."

With regard to the threshold showing of whether the challenged cause of action arises from protected activity (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67), defendants argued that all of the conduct alleged in the complaint had occurred during protected legal proceedings: "Plaintiff's Complaint, while masquerading as a simple breach of express contract action, is in reality a bad faith attempt to retaliate against the individual Defendants, who had no contractual relationship with Plaintiff whatsoever, because the clients of Defendants' Professional Law Corporations complained about paying Plaintiff's exorbitant, illegal, and unnecessary charges. Plaintiff has hired the 'evil attorney'[*fn1 ] to bring this action, who has improperly named individual Defendants, and a non-existent 'dba,' in complete disregard of the Professional Law Corporations of public record, and who has ignored all attempts by defense counsel to meet and confer in this regard. [Internal record reference omitted.] In conclusion, all conduct alleged in the Complaint took place during, and as part of, legal proceedings rendering same privileged, and subject to the protection afforded by CCP §425.16. As Plaintiff has failed and refused to name the proper parties to this lawsuit, and persists in proceeding against individuals who it had absolutely no contractual relationship with, this motion is necessary and must be granted."

Plaintiff disagreed that the threshold showing had been met. Plaintiff argued that the conduct alleged in the complaint did not arise from protected speech or petitioning activities, but from the nonpayment of a bill, which is not a protected activity. Plaintiff contended that its action did not fall within the scope of the anti-SLAPP statute because the purpose of its lawsuit was to collect an outstanding debt, not to impinge on protected speech or petitioning activities. Plaintiff stated in relevant part: "The subject matter of Plaintiff's complaint is not the Defendant's vague, general conduct in prior judicial proceedings. Defendants were sued for nonpayment of invoices, an omission. The Defendant[]s fail to explain what 'free speech' actually occurred. Is it possible they contend that the omission of bill payment may [fall] under the 'free speech' safeguards of CCP §425.16? This makes no sense."

The trial court denied the special motion to strike based on its determination that the threshold showing had not been met, stating: "The Court has read and considered the moving papers, opposition, reply and hears argument in this matter. [¶] The Court is not satisfied that the motion under CCP Section 425.16 is appropriate to this action and the motion is denied."


I. The Anti-SLAPP Statute

"A SLAPP suit--a strategic lawsuit against public participation--seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.) The Legislature enacted Code of Civil Procedure section 425.16--known as the anti-SLAPP statute--to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865.)

"In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc.[, supra,] 29 Cal.4th [at p.] 67.) Under Code of Civil Procedure section 425.16 '[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 . . . shall be subject to a special motion to strike. . . .' (Code Civ. Proc., § 425.16, subd. (b)(1).) 'A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) 'Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action. (Ludwig v. Superior ...

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