California Court of Appeals, First District, Third Division
Alameda County Superior Court, No. RG12654982 Hon. Robert B. Freedman Judge.
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James S. Madow for Plaintiff and Appellant.
Utretcht & Levin, Ronal D. Schivo and Patrick J. Connolly for Defendant and Respondent.
Plaintiff Loanvest I, LLC (Loanvest) appeals from the dismissal of its cause of action against its former attorneys, Paul F. Utrecht and Utrecht & Lenvin, LLP (collectively Utrecht), after the court granted Utrecht’s special motion to strike under the “anti-SLAPP” statute (Code Civ. Proc., § 425.16). Utrecht is being sued for malpractice by Loanvest, now under the control of James Madow, for allegedly disregarding the interests of Loanvest in order to protect the interests of the person who formerly controlled Loanvest in an action that Madow himself brought against Loanvest. After summarizing the complicated facts underlying the cause of action, we conclude, contrary to the trial court, that the malpractice claim fails to satisfy the first prong of the anti-SLAPP analysis. Thus, we do not reach the second prong of the analysis, leaving for consideration upon a summary judgment motion or other appropriate proceedings the multiple reasons for which the trial court concluded that Loanvest’s claim lacks merit.
The following facts, which are taken from the second amended complaint, appear to be undisputed.
In 2008, Loanvest had a single member, South Bay Real Estate Commerce Group, LLC (South Bay), which was managed by Scott Carter, a relative of George Cresson, and subsequently by Cresson. In 2008, Carter, on behalf of South Bay, signed an “Operating Agreement” naming South Bay as Loanvest’s manager and providing that anyone purchasing a membership interest in Loanvest would have no voting or management rights, and that the manager could be removed only for breach of fiduciary duty and by a ...