In Bergstein v. Strook & Strook & Lavan LLP, 2015 DJDAR 5177, the California Court of Appeal for the Second District ruled that a plaintiff cannot establish the requisite “probability of success on the merits” in a SLAPP suit motion where the claims are barred as a matter of law by the litigation privilege.
The Plaintiff sued the Defendants’ attorneys, alleging among other things that they aided and abetted another party’s alleged breach of fiduciary duty. The allegations focused on an alleged improper attempt to obtain the Plaintiff’s proprietary information to use in litigation. The Defendants’ attorneys moved to strike the complaint under the anti‑SLAPP statute. The court granted the Defendants’ motion and awarded reasonable attorney fees.
The Plaintiff appealed and the court affirmed. The court noted that under California Code of Civil Procedure Section 425.16(b)(1), the anti‑SLAPP statute, a defendant may bring a special motion to strike a cause of action arising from that person’s rights of free speech under the United States and California Constitutions. To prevail, the moving party has to show that the challenged cause of action arises from protected activity. “Statements made in litigation, or in connection with litigation, are protected” by Section 425.16(c). If the moving party meets its burden, the other party has to show a probability of prevailing in the litigation. In this case, the court ruled that the Defendants’ litigation activities were at the “core” of the Plaintiff’s claims and were thus protected. Thus, the court of appeal concluded that the trial court correctly granted the Defendants’ SLAPP suit motion.