No. _________ ================================================================

In The

Supreme Court of the United States

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JP BUILDERS, INC.,

Petitioner, v.

LISA LEEBOVE and STEVE STEINBERG,

Respondents.

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On Petition for a Writ of Certiorari to the Court of Appeal of the

State of California, First Appellate District

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PETITION FOR A WRIT OF CERTIORARI

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BENJAMIN NATKIN LAW OFFICES OF BENJAMIN NATKIN 3520 Overland Avenue, Suite A1 Los Angeles, California 90034 (310) 836-8780 benjamin@natkinlaw.com

Counsel of Record for Petitioner

KENNETH H. NATKIN LAW OFFICES OF KENNETH H. NATKIN 1901 Harrison Street, 14th Floor Oakland, California 94612 (510) 273-8650 ken@natkinlaw.com

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED FOR REVIEW

Does the Fourteenth Amendment to the United States Constitution impose upon each of the several States the obligation to give due regard to its current law and treat similarly situated litigants the same?

May the common-law doctrine of stare decisis constitutionally be altered by so-called “no-citation” rules that, when coupled with a lack of mandatory standards for publication and discretionary high-court review, deny precedential status to unpublished appellate decisions, if such rules nevertheless allow appellate courts to disregard current law or treat similarly situated litigants differently?

ii

TABLE OF CONTENTS

Page

Question Presented for Review ........................... i

Table of Contents ................................................. ii

Table of Authorities ............................................. iv

Opinions Below .................................................... 1

Jurisdiction .......................................................... 2

Constitutional Provisions, Treaties, Statutes, Ordinances, and Regulations Involved in the Case .................................................................. 2

Statement of the Case ......................................... 3

The Federal Question Below ............................... 6

Why the Writ Should Issue .................................. 14

I. A Bedrock Principle on Which the United States Judicial System Is Built Is that Like Cases Should Be Decided Alike. Un-reasoned Departures from Precedent Vio-late Equal Protection and Due Process ..... 14

II. The Circuit Split that Nevertheless Agrees that Precedent May Not Be Ignored; that Is, Cases Like JPB’s Shouldn’t Happen ...... 18

III. Respected Jurists and Scholars Over-whelmingly Agree that No-Citation Rules that Deny Precedential Status to Un-published Opinions Undermine this Bed-rock Principle Leading to the Results Typified by the Decision in JP Builders, Inc. v. Leebove ............................................ 19

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TABLE OF CONTENTS – Continued

Page

IV. This Is an Issue of National Importance Affecting Every Federal Circuit, Forty-One States, and the District of Columbia, Each of Which Has Some Form of a No-Citation Rule, and Is Not Going Away ...... 24

V. Uniform Construction and Application of California’s Anti-SLAPP Statute May In-form Federal Courts Should the United States Enact Federal Anti-SLAPP Legisla-tion Under Consideration by Congress ....... 28

Conclusion............................................................ 29

Appendix

Opinion of California Court of Appeal ................ App. 1

Order Modifying Opinion and Denying Rehear-ing [No Change in Judgment] ....................... App. 18

Order on Anti-SLAPP Motion by Hon. Char-lotte Walter Woolard, Judge, San Francisco Superior Court ............................................... App. 20

Order on Attorney’s Fees by Hon. Charlotte Walter Woolard, Judge, San Francisco Supe-rior Court ........................................................ App. 23

Order of California Supreme Court Denying Review and Requests for Publication ............ App. 25

Rule 14.1(f ) Materials ....................................... App. 26

iv

TABLE OF AUTHORITIES

Page

CASES

American Humane Ass’n v. Los Angeles Times Communications, 92 Cal. App. 4th 1095, 112 Cal. Rptr. 2d 488 (2001) .......................................... 23

American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 104 S. Ct. 3049, 110 L. Ed. 2d 200 (1990) ....................................................................... 14

Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc) ....................... 18, 19, 20, 22

Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 20 Cal. Rptr. 321, 369 P.2d 937 (1962) ......................................................................... 8

Batzel v. Smith, 330 F.3d 1018 (9th Cir. 2003) .......... 28

Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 2d 873 (1954) ......................... 21

City of Cotati v. Cashman, 29 Cal. 4th 69, 124 Cal. Rptr. 2d 519, 52 P.3d 695 (2002) ....................... 7

Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988) ......................................... 27

Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507, 52 P.3d 685 (2002) ...................................................... 7, 8

Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) ................................................ 15

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S. Ct. 560, 64 L. Ed. 989 (1920) ................. 15

v

TABLE OF AUTHORITIES – Continued

Page

Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) ........................................... 16

Haight Asbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 110 Cal. Rptr. 3d 129 (2010) ................................ 4, 17, 22

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993) .......... 14

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) .................................................................. 18, 19

Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994) .............. 17

Ketchum v. Moses, 24 Cal. 4th 1122, 104 Cal. Rptr. 2d 377, 17 P.3d 735 (2001) ............................... 3

Mann v. Cracchiolo, 38 Cal. 3d 18, 210 Cal. Rptr. 762, 694 P.2d 1134 (1985) .............................. 23

Navellier v. Sletten, 29 Cal. 4th 82, 124 Cal. Rptr. 2d 530, 52 P.3d 703 (2002) ............................... 7

Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 124 Cal. Rptr. 3d 256, 250 P.3d 1115 (2011) ......................................................................... 7

Payne v. Tennessee, 501 U.S. 808, 11 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) ............................... 19

People v. Ramirez, 25 Cal. 3d 260, 158 Cal. Rptr. 316, 599 P.2d 622 (1979) .................................. 6

Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) ................................................ 15

vi

TABLE OF AUTHORITIES – Continued

Page

Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1069, 112 Cal. Rptr. 2d 397 (2001) ......................... 23

South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634, 123 Cal. Rptr. 3d (2011) ....................................................................... 23

Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., 122 Cal. App. 4th 1049, 18 Cal. Rptr. 3d 882 (2004) .................................................. 23

United States v. International Business Ma-chines Corp., 517 U.S. 843, 116 S. Ct. 1793, 135 L. Ed. 2d 124 (1996) ......................................... 19

Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 25 Cal. Rptr. 3d 298, 106 P.3d 958 (2005) ......................................................................... 3

Wallace v. McCubbin, 196 Cal. App. 4th 1169, 128 Cal. Rptr. 3d 205 (2011) ........................... passim

Wilcox v. Superior Court, 27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446 (1994) ....................................... 3

CONSTITUTIONS

California Constitution, Article I, Section 7 ...... 2, 6, 13

United States Constitution, Amendment I .................. 2

United States Constitution, Amendment XIV, Section 1 .......................................................... passim

United States Constitution, Article III .............. passim

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TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1257(a) ....................................................... 2

California Business and Professions Code Section 17000 et seq. ............................................... 10

California Civil Code Section 1750 et seq. ................ 10

California Code of Civil Procedure Section 425.16 .................................................................... 2, 3

California Code of Civil Procedure Section 431.10 ...................................................................... 11

RULES

California Rule of Court 8.204 ................................... 12

California Rule of Court 8.500 ........................... passim

California Rule of Court 8.504 ..................................... 2

California Rule of Court 8.1105 ..................... 2, 5, 9, 25

California Rule of Court 8.1115 ............................. 2, 13

California Rule of Court 8.1120 ............................... 2, 5

Federal Rule of Appellate Procedure 32.1 ................. 25

OTHER AUTHORITIES

Administrative Office of the United States Courts, Judicial Business of the United States Courts: 2011 Annual Report of the Director (2011) ......................................................... 25

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TABLE OF AUTHORITIES – Continued

Page

California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions, Report and Recommendations, November 2006 (2006) ............................................ 25

David R. Cleveland, Ending the Unpublication System, 92 MARQ. L. REV. 685 (2009) ..................... 27

David R. Cleveland, Overturning the Last Stone: The Final Step in Returning Preceden-tial Status to All Opinions, 10 J. APP. PRAC. & PROCESS 61 (2009) ............................................... 26

H.R. 4364, 111th Cong., 1st Sess. (2009) ................... 28

http://www.nonpublication.com .................................. 27

J. Clark Kelso, A Report on the California Appellate System, 45 HASTINGS L.J. 433 (1994) ....................................................................... 21

Joseph Story, Commentaries on the Constitu-tion of the United States (1883) .............................. 15

Judge Patricia M. Wald, The Rhetoric of Re-sults and the Results of Rhetoric: Judicial Writings 62 U. CHI. L. REV. 1371 (1995) ................ 21

Judge Richard S. Arnold, Unpublished Opin-ions: A Comment, 1 J. APP. PRAC. & PROCESS 219 (1999) .......................................................... 18, 20

Judge Samuel A. Alito, Jr., Report of Advisory Committee on Appellate Rules (May 6, 2005) ............................................................ 21, 22, 27

ix

TABLE OF AUTHORITIES – Continued

Page

Judicial Council of California, 2011 Court Statistics Report: Statewide Caseload Trends, 2000-2001 through 2009-2010 (2011) ..................... 25

Penelope Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitu-tional, 17 WM. & MARY L. REV. 955 (2009) ............. 21

Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) ..................... 21

Peter Kurdock, The Need for Federal Anti-SLAPP Legislation, American Bar Associa-tion, March 30, 2011 ............................................... 28

Professor J. Clark Kelso & Joshua Weinstein, A White Paper on Unpublished Opinions of the Court of Appeal (2001) ...................................... 23, 27

Stephen R. Barnett, From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. APP. PRAC. & PROCESS 1 (2002) ..................................................... 20

Tim Reagan et al., Citations to Unpublished Opinions in the Federal Courts of Appeals (Fed. Jud. Ctr. 2005) ............................................... 26

Timony J. Vrana et al., Survey of State Courts’ Treatment of Their Own Not-for-Publication Appellate Opinions (2011) ....................................... 24

William D. Bader & David R. Cleveland, Prece-dent and Justice, 49 DUQ. L. REV. 35 (2011) .......... 21

1

OPINIONS BELOW

The opinion of the California Court of Appeal, as modified, is unreported. The unmodified opinion is available at 2011 Cal. App. Unpub. LEXIS 7687 and is reprinted in the appendix.1 The order modifying the opinion and denying rehearing is available at 2011 Cal. App. Unpub. LEXIS 8365 and is reprinted in the appendix.2

The orders of the California Superior Court for the County of San Francisco are unreported and are reprinted in the appendix.3

The order of the California Supreme Court deny-ing the petition for review and requests for publica-tion is unreported. It is available at 2012 Cal. LEXIS 432, and is reprinted in the appendix (App.).4

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1 App. 1-17. 2 App. 18-19. 3 App. 20-24. 4 App. 25.

2

JURISDICTION

Date of Order Sought to Be Reviewed:

January 18, 2012

Statutory Provision on Which Jurisdiction Is Believed to Be Conferred on this Court:

28 U.S.C. § 1257(a)

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CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES, ORDINANCES, AND

REGULATIONS INVOLVED IN THE CASE

United States Constitution

Article VI Amendment I Amendment XIV, Section 1

California Constitution

Article I, Section 3 Article I, Section 7 Article VI, Section 6 Article VI, Section 12 Article VI, Section 14

California Code

Code of Civil Procedure Section 425.16

California Rules of Court

Rule 8.500 Rules 8.1100-8.1125

3

The text of these Provisions, Treaties, Statutes, Ordinances and Regulations appear in the attached Appendix at App. 26.

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STATEMENT OF THE CASE

In JP Builders, Inc. v. Leebove, Division One of the First District Court of Appeal for the State of California adopted and applied against Petitioner JP Builders, Inc. (JPB) and in favor of Respondents Lisa Leebove and Steve Steinberg (Respondents), a con-struction of California’s anti-SLAPP statute5 that, in

5 CAL. CIV. PROC. CODE § 425.16. SLAPP is an acronym for Strategic Lawsuit Against Public Participation: suits, including counter-suits, asserting claims that seek to punish or prevent the exercise of the rights of free speech or petition. Wilcox v. Superior Court, 27 Cal. App. 4th 809, 817, 33 Cal. Rptr. 2d 446 (1994). The California Legislature determined vindication of these rights is so important, and may otherwise be so prohibi-tively expensive to litigate, that is, that the SLAPP would achieve its purpose of tying up the defendant’s or cross-defendant’s resources, the statute provides a right of immediate appeal, CAL. CIV. PROC. CODE § 425.16(i); Varian Medical Sys-tems, Inc. v. Delfino, 35 Cal. 4th 180, 192-96, 25 Cal. Rptr. 3d 298, 106 P.3d 958 (2005), and, to encourage private attorneys to take on these cases, provides a prevailing defendant or cross-defendant is entitled to mandatory attorney’s fees, while a prevailing plaintiff or cross-complainant “may” be permitted to recover fees only if the motion is “frivolous or solely intended to cause unnecessary delay.” CAL. CIV. PROC. CODE § 425.16(c)(1); Ketchum v. Moses, 24 Cal. 4th 1122, 104 Cal. Rptr. 2d 377, 17 P.3d 735 (2001).

4

Wallace v. McCubbin,6 Division Five of the First District Court of Appeal for the State of California had thoroughly considered and rejected as contraven-ing California Supreme Court precedent, likely to lead to arbitrary, anomalous results, and simply untenable.7 Division One refused to recognize, distin-guish, or criticize Wallace v. McCubbin or the other cases on which Wallace v. McCubbin and JPB relied,8 most notably Haight Asbury Free Clinics, Inc. v. Happening House Ventures (Haight Asbury).9

JPB and its attorneys expended well over $150,000 in reliance on the law as expressed in Wallace v. McCubbin, Haight Asbury, and its prede-cessors, and JPB has had and will have to continue to expend further resources it would not have had to expend had Division One followed Wallace v. McCubbin. Division One’s departure from the law and its application of this departure was as arbitrary and unjustified as Division Five opined it would be when it rejected the rule Division One adopted.

6 Wallace v. McCubbin, 196 Cal. App. 4th 1169, 128 Cal. Rptr. 3d 205 (2011) 7 Id. at 1188-91. 8 [JPB’s] Opening Brief; Respondents’ Brief; [JPB’s] Reply Brief; [JPB’s] Petition for Rehearing; Order Denying Petition for Rehearing, App. 18-19. 9 Haight Asbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 110 Cal. Rptr. 3d 129 (2010) [Haight Asbury].

5

The two opinions are hopelessly irreconcilable, providing a basis both for publication of the opinion,10 and for review by the California Supreme Court.11 Nevertheless, Division One designated the opinion as “not to be published,”12 and two requests for publica-tion,13 one by JPB and one by non-party California Building Industry Association, were denied.14 The California Supreme Court denied review of JP Build-ers, Inc. v. Leebove without commenting on the di-chotomy or addressing JPB’s assertion Division One’s decision violated JPB’s civil rights under the United States Constitution.15 Thus, the parties in JP Build-ers, Inc. v. Leebove, although in an identical situation to the parties in Wallace v. McCubbin, have been subjected to disparate treatment and JPB was de-prived of a fair hearing. Such a result is, or should be, prohibited by the Fourteenth Amendment to the United States Constitution.

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10 CAL. R. CT. 8.1105(c)(5). 11 CAL. R. CT. 8.500(b)(1). 12 App. 1. 13 CAL. R. CT. 8.1120. 14 App. 25. 15 [JPB’s] Petition for Review; [JPB’s] Reply to Answer to Petition for Review; Order Denying Petition for Review, App. 25.

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THE FEDERAL QUESTION BELOW

The federal question presented in this petition did not arise until the Court of Appeal decision be-came final; therefore, the first opportunity to raise the federal question was in a petition for review of the Court of Appeal decision in the California Su-preme Court:

The [California] Supreme Court’s role [in re-viewing appellate decisions] is necessary to preserve the integrity of the courts and pro-tect litigants from arbitrary adjudicative procedures, a liberty interest protected by the due process clauses of section 1 of the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution. (See People v. Ramirez (1979) 25 Cal.3d 260, 264, 268 [158 Cal.Rptr. 316, 599 P.2d 622].) Essentially, the outcome of a case must not depend upon which court the case randomly happens to be assigned, whether that be through an appel-late court’s reaching a contradictory opinion to its fellow appellate courts (Cal. Rules of Court, Rule 8.500(b)(1)), failure to follow binding precedent and thus acting in excess of its jurisdiction (Cal. Rules of Court, Rule 8.500(b)(2)), or rendering a decision without the concurrence of at least two of the justices hearing the case (Cal. Rules of Court, Rule 8.500(b)(3).) This is particularly true where, as here, the court is considering only ques-tions of law. As discussed in parts II-V, post,

7

both clauses (1) and (2) of subdivision (b) of Rule 8.500 are implicated by this case.

. . . .

When the appellate court found [Respon-dents’] first and second causes of action were based on allegations of JPB “abusing the lien and litigation processes” and the entire third cause of action was based on JPB’s record-ation of an allegedly improper mechanic’s lien (Opinion p. 4),[16] it was bound by the doctrine of stare decisis to find JPB met the first prong. (Oasis,[17] supra, 51 Cal.4th at p. 815-820, Equilon,[18] supra, 29 Cal.4th 53 at page 66, Cashman,[19] supra, 29 Cal.4th at pages 77-78, and Navellier v. Sletten,[20] su-pra, 29 Cal.4th at pages 89-95, all holding a cause of action is one “arising from” protected conduct when the cause of action is “based on” protected conduct.) By finding the first, second, and third causes of action were based on protected conduct, but concluding the causes of action did not “arise from” protected conduct because it was not the “predominant

16 App. 6. 17 Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 124 Cal. Rptr. 3d 256, 250 P.3d 1115 (2011). 18 Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507, 52 P.3d 685 (2002). 19 City of Cotati v. Cashman, 29 Cal. 4th 69, 124 Cal. Rptr. 2d 519, 52 P.3d 695 (2002). 20 Navellier v. Sletten, 29 Cal. 4th 82, 124 Cal. Rptr. 2d 530, 52 P.3d 703 (2002).

8

conduct” on which the entire cross-complaint was based, the appellate court acted in ex-cess of its jurisdiction. (Cal. Rules of Court, Rule 8.500(b)(2); Auto Equity Sales,[21] supra, 57 Cal.2d at pp. 455-456.) Indeed, the “pre-dominant conduct” rule appears remarkably like the discredited “intent to chill” require-ment in Equilon, supra.

The “predominant conduct” rule articulated by the appellate court also squarely contra-dicts the holding in Wallace v. McCubbin, supra, 196 Cal.App.4th at pages 1181-1191, which rejected a “gestalt or gist” rule identi-cal to the “predominant conduct” rule ad-vanced by the appellate court in this case. . . .

. . . .

Indeed, the only remarkable difference be-tween Wallace v. McCubbin and this case is the outcome. The Wallace v. McCubbin court applied one set of rules to the facts in its case and determined defendants had met the first prong and examined the second prong (Wal-lace v. McCubbin, supra, 196 Cal.App.4th at pp. 1180-1195), and the court in this case ap-plied a rule the Wallace v. McCubbin court had rejected to this case’s substantially iden-tical facts and determined JPB had not met the first prong and declined to examine the

21 Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 20 Cal. Rptr. 321, 369 P.2d 937 (1962).

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second prong. (Opinion p. 9-10.)[22] This is precisely the sort of result this Court’s role in establishing uniformity of decision (Cal. Rules of Court, Rule 8.500(b)(1)) and in de-ciding jurisdictional questions (Cal. Rules of Court, Rule 8.500(b)(2)) is designed to pre-vent, and implicates the due process rights of every litigant, whether SLAPP plaintiff or SLAPP defendant, whose appeal from an or-der granting or denying an anti-SLAPP is heard, at least in the First Appellate District.

Although the court was provided the oppor-tunity to rehear the case in light of the Wal-lace v. McCubbin opinion, which was published while this case was pending, the court declined to rehear the case. (Petition for Rehearing; October 31, 2011 Order Modi-fying Opinion and Denying Rehearing [Ex. 2].[23]) Even though the court established a rule contrary to Wallace v. McCubbin, it de-nied a request to publish the opinion that cited the dichotomy as establishing a stan-dard for publication under California Rules of Court, Rule 8.1105(c)(5) along with other standards cited in that request and a non-party request for publication. (JPB Oct. 19, 2011 Request for Publication, Ex. 4; Oct. 31, 2011 Order Denying Request for Publication, Ex. 5; Non-party Oct. 27, 2011 Request for

22 App. 14-16. 23 App. 18-19.

10

Publication, Ex. 6; Oct. 28, 2011 Order Deny-ing Request for Publication, Ex. 7.)24

In their answer [to JPB’s petition for review] [Respondents] admit the first and second causes of action of their cross-complaint are based, in part, on JPB’s protected conduct of recording its lien and suing to foreclose on it, and the third cause of action of their original cross-complaint is based on JPB’s lien. (An-swer pp. 2, 24.) This admission effectively concedes the appellate court erred in holding JPB failed to establish the first prong of the anti-SLAPP statute and erred in failing to reach the second prong, and thus acted in ex-cess of its jurisdiction and violated JPB’s civ-il rights. . . .

. . . .

In their answer, [Respondents] admit their cross-complaint based the first and second causes of action for violations of the Con-sumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.) and Unfair Practices Act (UPA) (Bus. & Prof. Code, § 17000 et seq.), in part, on “incidental allegations re-garding JPB’s misuse of the lien process among several grounds of predicate miscon-duct” and the third cause of action of the original cross-complaint on JPB’s lien (an-swer p. 2), and that “JPB’s placement of the

24 [JPB’s] Petition for Review, pp. 13, 21-26.

11

lien violated the CLRA and the [UPA].” (An-swer p. 24.)

Their answer is self-contradictory – allega-tions cannot be both incidental and predi-cates for liability (that is, “material” (Code Civ. Proc., § 431.10, subd. (a)) (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1183 [128 Cal.Rptr.3d 205]) – and fails to address JPB’s assertion the appellate court recog-nized that [Respondents] had based their first, second, and third causes of action on this protected activity and that this recogni-tion obligated the appellate court, under the doctrine of stare decisis, to find JPB met the first prong of the anti-SLAPP analysis and reach the second prong, and that consequent-ly the appellate acted in excess of its juris-diction and violated JPB’s civil rights. (Petition, parts I.B and IV.A-B.1.)

Their answer likewise fails to address Wal-lace v. McCubbin, supra, 196 Cal.App.4th at pages 1181-1191, which squarely rejected a “gestalt or gist” rule identical to the predom-inant-conduct rule employed in this case, and which recognized it was bound by this Court’s precedent to reject such a rule: “In-deed, our Supreme Court has made clear that the statutory language focuses on acts: ‘In short, the statutory phrase “cause of ac-tion . . . arising from” means simply that the defendant’s act underlying the plaintiff ’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]’ ([Citation], first & third

12

italics added.) We are admonished to exam-ine the act underlying the cause of action, not the gist of the cause of action.” (Id., 196 Cal.App.4th at p. 1190.)

This is a concession the appellate court erred in failing to reach the second prong and vio-lated JPB’s civil rights. . . .

. . . .

California Rules of Court, Rule 8.500(b)(1), establishes review is appropriate when nec-essary to secure uniformity of decision. No-where in this rule is a requirement the opinion creating the conflict must be a pub-lished opinion in order to satisfy this ground, and [Respondents] have cited no authority in support of this contention as required by Cal-ifornia Rules of Court, Rules 8.204(a)(1)(B), 8.504(a), and none appears to exist; there-fore, the court may treat the point as waived. . . . Indeed, as JPB argued in its pe-tition, an argument [Respondents] failed to address, such a rule would subject litigants to arbitrary adjudicative procedures in viola-tion of their right to due process under the California and United States Constitutions. (Petition, parts I.B and IV.A-B.1; see part I, ante.)

. . . .

[The trial court] was obligated by the doc-trine of stare decisis to apply this rule to JPB’s anti-SLAPP motion and reach the second prong, and all trial courts are still

13

obligated to apply this rule to anti-SLAPP motions against mixed causes of action, and litigants may only rely on this rule in decid-ing whether to bring or oppose an anti-SLAPP motion against a mixed cause of ac-tion, and in deciding whether to appeal an adverse ruling on an anti-SLAPP motion. (Cal. Rules of Court, Rule 8.1115.) Division One of the First District Court of Appeal is now applying a different rule, but without publishing the rule. This creates a trap for the unwary, and subjects all litigants in anti-SLAPP motions to an arbitrary adjudicative procedure based on nothing more than to which division an appeal is randomly as-signed, violating these litigants’ due-process rights under article I, section 7 of the Cali-fornia Constitution and section 1 of the Four-teenth Amendment to the United States Constitution. This is an intolerable situation that only this Court or the United States Su-preme Court may correct. This Court should grant review to do so.25

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25 [JPB’s] Reply to Answer to Petition for Review, pp. 2, 7-10, 13.

14

WHY THE WRIT SHOULD ISSUE

I. A Bedrock Principle on Which the United States Judicial System Is Built Is that Like Cases Should Be Decided Alike. Un-reasoned Departures from Precedent Vio-late Equal Protection and Due Process

This Honorable Court has recognized that its own power is constrained by the Constitution such that like cases must be decided alike: “ ‘[T]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.’ ”26

As Justice (Professor) Joseph Story wrote:

Ours is emphatically a government of laws, and not of men; and judicial decisions of the highest tribunal, by the known course of the common law, are considered, as establishing the true construction of the laws, which are brought into the controversy before it. The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind fu-ture cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been

26 Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993) (quoting American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 214, 104 S. Ct. 3049, 110 L. Ed. 2d 200 (1990) (Stevens, J., dissenting)).

15

considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the ca-price or will of judges. A more alarming doc-trine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

This known course of proceeding, this settled habit of thinking, this conclusive effect of ju-dicial adjudications, was in the full view of the framers of the constitution. It was re-quired, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.27

If a state has an appellate system, it must com-port with equal protection and due process.28 “The Equal Protection Clause directs that ‘all persons similarly circumstanced shall be treated alike.’ ”29 The

27 Joseph Story, Commentaries on the Constitution of the United States §§ 377-78 (1883). 28 Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). 29 Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920)).

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Due Process Clause guarantees the right to be heard, which:

is a basic aspect of the duty of the govern-ment to follow a fair process of decision mak-ing when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment – to minimize substantively unfair or mistaken depriva-tions of property. . . . 30

As this Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis. . . . Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial. In fact, most of our due process decisions in-volve arguments that traditional procedures provide too little protection and that addi-tional safeguards are necessary to ensure compliance with the Constitution. . . .

Nevertheless, there are a handful of cases in which a party has been deprived of liberty or property without the safeguards of common-law procedures. . . . When the absent proce-dures would have provided protection

30 Fuentes v. Shevin, 407 U.S. 67, 80-81, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

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against arbitrary and inaccurate adjudica-tion, this Court has not hesitated to find the proceedings violative of due process.31

When an appellate court ignores precedent, it deprives litigants of the equal protection of the laws and of due process of law. By ignoring the precedent established by Wallace v. McCubbin and the cases upon which Wallace v. McCubbin and JPB relied, most notably Haight Asbury, Division One imposed upon JPB, and because the opinion is unpublished only upon JPB (and anyone else Division One may decide should be unworthy of fair process), a re-quirement beyond that imposed on every other liti-gant. Under Wallace v. McCubbin and Haight Asbury,32 every other litigant need only show that at least one act on which liability is predicated is an act in furtherance of the right of free speech or petition to meet the first prong of the anti-SLAPP analysis, whereas JPB was required to additionally show that those acts are the predominant conduct on which the entire cross-complaint is based,33 the very additional requirement Wallace v. McCubbin rejected.34 This deprived JPB of the equal protection of the law, as well as deprived JPB of a fair hearing on the issue that was really before the appellate court: whether

31 Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 430, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994) (citations omitted). 32 Haight Asbury, 184 Cal. App. 4th at 1550-52. 33 App. 14-16. 34 Wallace v. McCubbin, 196 Cal. App. 4th at 1188-91.

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Respondents had shown a probability of success on the merits. Indeed, just like Wallace and Owen’s first cause of action, Respondents’ third cause of action was entirely based on absolutely privileged conduct, and thus, regardless of the evidence adduced, JPB was entitled to at least partial reversal.35

II. The Circuit Split that Nevertheless Agrees

that Precedent May Not Be Ignored; that Is, Cases Like JPB’s Shouldn’t Happen

In Anastasoff v. United States (Anastasoff),36 a three-judge panel of the Eighth Circuit Court of Appeals, in an opinion authored by Judge Richard S. Arnold, unanimously held the Eighth Circuit’s Rule 28(A)(i), which declared that unpublished opinions are not precedent, is unconstitutional because it exceeded the scope of the federal court’s Article III powers.

In Hart v. Massanari (Hart),37 a three-judge panel of the Ninth Circuit Court of Appeals, in an opinion authored by Judge (now Chief Judge) Alex Kozinski, unanimously criticized the holding in Anastasoff, and held the Ninth Circuit’s Rule 36-3, which declared

35 Compare Wallace v. McCubbin, 196 Cal. App. 4th at 1182-84, with JP Builders, Inc. v. Leebove, App. 6. 36 Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc) [Anastasoff]. 37 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) [Hart].

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that unpublished opinions are not binding precedent, is a constitutional exercise of the federal court’s Article III powers.

As a case arising from state court, this case does not implicate Article III; however, the split is never-theless highly informative because, although the opinions disagree as to what cases should be prece-dential, they agree that once precedent is set, courts may not make unreasoned departures from it; that is, cases like JPB’s simply should not happen.38

III. Respected Jurists and Scholars Over-

whelmingly Agree that No-Citation Rules that Deny Precedential Status to Un-published Opinions Undermine this Bed-rock Principle Leading to the Results Typified by the Decision in JP Builders, Inc. v. Leebove

While it is the result – that is, failure of the courts to follow current law and similarly situated

38 Compare Anastasoff, 233 F.3d at 905 (“courts ‘have always required a departure from precedent to be supported by some “special justification,” ’ ” citing United States v. Interna-tional Business Machines Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 135 L. Ed. 2d 124 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842, 11 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (Souter, J., concurring)) with Hart, 266 F.3d at 1170, 1180 (“we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence . . . [s]o long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities . . . [w]e agree with Anastasoff that we – and all courts – must follow the law”).

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litigants being subjected to disparate treatment – and the existence of a system that allows such a result that JPB contends is unconstitutional, there is a general consensus amongst jurists and scholars that the doctrine of stare decisis, properly applied, pre-vents such results and that the lynchpin of stare decisis is the ability to cite all decisions as precedent and that no-citation rules remove this lynchpin.39

Critics of no-citation rules, which include numer-ous members of the bench, the bar, and scholars, have widely criticized no-citation rules as creating an environment ripe for abuse wherein appellate courts may freely engage in results-oriented decision-making, making unwarranted departures from estab-lished vertical or horizontal precedent or creating new poorly-reasoned rules without fear that these decisions will be followed by lower courts, overturned by higher courts, or subjected to criticism.40 They

39 See, e.g., Anastasoff, supra. The American Bar Associa-tion’s Sections on Criminal Justice, Tort, and Insurance Practice and the Senior Lawyers Division reported to the ABA’s House of Delegates a resolution labeling no-citation rules “contrary to the best interests of the public and the legal profession.” Stephen R. Barnett, From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. APP. PRAC. & PROCESS 1, 26 nn. 4 & 5 (2002). 40 See, e.g., Judge Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219 (1999) (“[i]f, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device

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argue that where the decisions create new rules, whether poorly- or well-reasoned, no-citation rules deprive other litigants from relying on the decision, which they contend is a prior restraint on free speech, resulting in a greater workload on litigants, their lawyers, and the courts.41 They argue that even if the appellate courts never use the no-citation rule to shield bad decisions, the mere perception that they may be used to do so undermines the integrity of the judicial branch.42 Finally, they argue it creates uncer-tainty and consequently promotes litigiousness;43 that

of an abbreviated, unpublished opinion, and no one will ever be the wiser”); Judge Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings 62 U. CHI. L. REV. 1371, 1374 (1995) (“a double-track system allows for deviousness and abuse. I have seen judges purposely compromise on an un-published decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls”). 41 See, e.g., Penelope Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Uncon-stitutional, 17 WM. & MARY L. REV. 955 (2009); Judge Samuel A. Alito, Jr., Report of Advisory Committee on Appellate Rules 4:1-10 (May 6, 2005) [hereinafter “Alito Memo”]. 42 See, e.g., William D. Bader & David R. Cleveland, Prece-dent and Justice, 49 DUQ. L. REV. 35 (2011); Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) (also arguing the practice of unpublished cases began as a judicial backlash against Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 2d 873 (1954)); Alito Memo, supra n. 41, at 6-7. 43 See, e.g., J. Clark Kelso, A Report on the California Appellate System, 45 HASTINGS L.J. 433, 447-50 (1994) (“reject-ing narrow rules of law in favor of general standards to be applied by a fact finder makes every case a possible winner for

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which has been settled remains unsettled if it was settled in an unpublished opinion, and even that which has been settled in a published opinion re-mains unsettled, as it may be abrogated ad hoc in an unpublished opinion, as occurred here.

Proponents of no-citation rules, comprised pri-marily of a not-insignificant number of appellate bench officers and their staff attorneys, contend unpublished cases add nothing to the body of law, that the rules are never used to shield bad decisions, and claim the rules are necessary to level the playing-field between litigants with unequal resources, and to streamline the decision-making process in an increas-ingly overburdened court system.44

JP Builders, Inc. v. Leebove exemplifies every one of the criticisms leveled by no-citation-rule critics. In addition to the wholesale departure from the horizontal precedent established by Wallace v. McCubbin and Haight Asbury, and the horizontal and vertical precedent on which those opinions are based, JP Builders, Inc. v. Leebove established two new rules that themselves contravened analogous precedent,45

both plaintiff and defendant. . . . [d]eveloping stable, certain, and predictable rules of law may be the most important thing appellate courts can do to reduce not only their own caseloads, but also the burden placed upon trial courts”). 44 See, e.g., Anastasoff, supra; Hart, supra; Alito Memo, supra n. 41, at 4-6. 45 JP Builders, Inc. v. Leebove is the only appellate opinion addressing the procedural propriety of a party filing a “second

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and a non-party, the California Building Industry Association, would like the case to be citable as it believes the decision is favorable to its members.46

In A White Paper on Unpublished Opinions of the Court of Appeal, California’s Appellate Process Task Force flatly rejected no-citation-rule critics’ premise that California’s no-citation rule allows California Courts of Appeal to hide bad decision-making from scrutiny and suggested the California Supreme Court would, in such a situation, exercise its discretion to review such a case.47 However true this statement

cross-complaint” after dismissing the original cross-complaint without prejudice, App. 6-8, 12-13, which, in context, created an apparent conflict with other opinions prohibiting amendment of a complaint following an anti-SLAPP motion, Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., 122 Cal. App. 4th 1049, 1054-56, 18 Cal. Rptr. 3d 882 (2004); Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1069, 1073-74, 112 Cal. Rptr. 2d 397 (2001), or assertion of identical claims in a new com-plaint. South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634, 659-67, 123 Cal. Rptr. 3d (2011). JP Builders, Inc. v. Leebove is also the only appellate opinion addressing the timing of the consideration of the merits of final appealable orders, App. 8-11, 13-14, which also, in context, created apparent conflicts with other opinions: American Humane Ass’n v. Los Angeles Times Communications, 92 Cal. App. 4th 1095, 1097, 1103-04, 112 Cal. Rptr. 2d 488 (2001) and Mann v. Cracchiolo, 38 Cal. 3d 18, 28-30, 210 Cal. Rptr. 762, 694 P.2d 1134 (1985). 46 October 27, 2011 California Building Industry Association Request for Publication. 47 Professor J. Clark Kelso & Joshua Weinstein, A White Paper on Unpublished Opinions of the Court of Appeal 6 (2001). Notwithstanding Professor Kelso’s co-authorship of this white paper, Professor Kelso is himself a critic of California’s no-citation rule. See n. 43, supra.

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might have been when it was made in March of 2001, JP Builders, Inc. v. Leebove conclusively demon-strates this statement is not true today.

IV. This Is an Issue of National Importance

Affecting Every Federal Circuit, Forty-One States, and the District of Columbia, Each of Which Has Some Form of a No-Citation Rule, and Is Not Going Away.

Twenty-three States, including California, and the District of Columbia have rules that prohibit the citation of opinions designated “not for publication” except by the parties to the case in limited circum-stances.48 An additional eighteen States have rules otherwise limiting the citation of opinions designated “not for publication.”49 Although Federal Rule of Appellate Procedure 32.1 prevents the federal circuit courts of appeals from prohibiting or restricting the citation of unpublished opinions, “it says nothing about what effect a court must give to one of its

48 Timony J. Vrana et al., Survey of State Courts’ Treatment of Their Own Not-for-Publication Appellate Opinions (2011). The twenty-three States are Arizona, California, Colorado, Georgia, Idaho, Illinois, Indiana, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming. Id. at 4. 49 The eighteen States are Alaska, Connecticut, Delaware, Hawaii, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, New York, Tennessee, Washington, and Wisconsin. Id. at 4-5.

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unpublished opinions or to the unpublished opinions of another court.”50

Ninety-one percent of California’s appellate decisions are designated “not for publication.”51 Eighty percent of responding California appellate justices and ninety-six percent of responding Califor-nia attorneys indicated they have been involved in a case with an unpublished opinion that they thought satisfied the publication criteria of California Rule of Court 8.1105.52 Fifty-eight percent of responding California appellate justices and ninety-two percent of responding California attorneys indicated they used unpublished opinions in their work.53

By way of contrast, eighty-five percent of federal appellate decisions are designated “not for publica-tion.”54 “Forty-four percent of judges in circuits that

50 FED. R. APP. P. 32.1, comment. 51 Judicial Council of California, 2011 Court Statistics Report: Statewide Caseload Trends, 2000-2001 through 2009-2010 23 (2011), available at http://www.courts.ca.gov/documents/ 2011CourtStatisticsReport.pdf. 52 California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions, Report and Recom-mendations, November 2006 39 (2006), available at http://www. courts.ca.gov/documents/sc_report_12-7-06.pdf. 53 Id. at 41. 54 Administrative Office of the United States Courts, Judicial Business of the United States Courts: 2011 Annual Report of the Director 38 (Table S-3) (2011), available at http:// www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/ JudicialBusiness2011.pdf.

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allowed citation said they found citations to un-published decisions helpful ‘occasionally,’ ‘often,’ or ‘very often.’ Moreover thirty percent of those judges noted that unpublished opinions are ‘occasionally,’ ‘often,’ or ‘very often’ inconsistent with published precedent.”55

There has been minimal legislative or quasi-legislative action to address the issue. One scholar has identified no fewer than thirty-six petitions for certiorari, beginning in 1976, directly presenting the issue, and an additional seven petitions in which the issue was discussed at length, but without being part of the question presented.56 Clearly, this is an issue that has, and will continue to, come up again and again.

There are over 150 articles by jurists and schol-ars fully dissecting all of the arguments on both

55 David R. Cleveland, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. APP. PRAC. & PROCESS 61, 170 (2009) (citing Tim Reagan et al., Citations to Unpublished Opinions in the Federal Courts of Appeals 39-40 (Tables K & L) (Fed. Jud. Ctr. 2005), available at http://www.fjc.gov/public/pdf.nsf/lookup/citatio2.pdf/$file/citatio2.pdf). Cf. Alito Memo, supra n. 41, at 10. 56 David R. Cleveland, Ending the Unpublication System, 92 MARQ. L. REV. 685, 688-89, n. 14, 714-18 (2009).

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sides,57 thus the discussion is well developed and ripe for a decision by this Court.58

Because no-citation rules affect the rights of petition and free speech, guaranteed by the First Amendment to the United States Constitution and imposed upon the States through the Fourteenth Amendment to the United States Constitution, they must be subjected to strict scrutiny and may only stand in the face of a compelling state interest and must be narrowly drawn.59 In adopting Federal Rule of Appellate Procedure 32.1, this Court rejected the rationale advanced by no-citation-rule proponents.60 California courts and other States with no-citation rules advance the same rationale;61 thus, it cannot be considered “compelling.”

57 See http://www.nonpublication.com, LAW REVIEW ARTICLES, for a comprehensive list. 58 Cleveland, Ending the Unpublication System, supra n. 56, at 686, 702. 59 Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988). 60 Alito Memo, supra n. 41. 61 See Kelso & Weinstein, supra n. 47.

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V. Uniform Construction and Application of California’s Anti-SLAPP Statute May In-form Federal Courts Should the United States Enact Federal Anti-SLAPP Legisla-tion Under Consideration by Congress

As Congress considers federal anti-SLAPP legis-lation,62 California decisional law construing Califor-nia’s anti-SLAPP statute, and its uniform application, will likely be of importance to federal courts should the legislation be enacted.63

--------------------------------- ---------------------------------

62 See, e.g., H.R. 4364, 111th Cong., 1st Sess. (2009); Peter Kurdock, The Need for Federal Anti-SLAPP Legislation, American Bar Association, March 30, 2011 at http://apps. americanbar.org/litigation/committees/firstamendment/articles/ 033011-kurdock-federal-anti-SLAPP.html. 63 See, e.g., Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (applying California anti-SLAPP statute in diversity action).

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CONCLUSION

Appellate courts should no longer be allowed to pretend, with a wink and a nod, that a system that denies precedential status to unpublished cases is not delivering second-class justice to the vast majority of persons in the United States. For the above reasons, a writ of certiorari should issue to review the judg-ment and opinion of the California Court of Appeal.

Respectfully submitted,

BENJAMIN NATKIN LAW OFFICES OF BENJAMIN NATKIN 3520 Overland Avenue, Suite A1 Los Angeles, California 90034 (310) 836-8780 benjamin@natkinlaw.com

Counsel of Record for Petitioner

KENNETH H. NATKIN LAW OFFICES OF KENNETH H. NATKIN 1901 Harrison Street, 14th Floor Oakland, California 94612 (510) 273-8650 ken@natkinlaw.com

App. 1

JP BUILDERS, INC., Plaintiff, Cross-Defendant and Appellant, v. LISA LEEBOVE et al., Defendants, Cross-Complainants and Respondents.

A130270

COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE

2011 Cal. App. Unpub. LEXIS 7687

October 7, 2011, Filed

NOTICE: 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 CERTI-FIED FOR PUBLICATION OR ORDERED PUB-LISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY:

San Francisco City & County Super. Ct. No. CGC-09-494044.

JUDGES: Marchiano, P.J.; Margulies, J., Banke, J. concurred.

OPINION BY: Marchiano

OPINION

Defendants/cross-complainants Leebove and Stein-berg (Homeowners) hired plaintiff/cross-defendant JP

App. 2

Builders, Inc., a general contractor (Contractor) to remodel their home. A dispute arose over alleged construction defects and unpaid bills. Contractor sued Homeowners, who countersued Contractor for defects. Contractor invoked the Anti-SLAPP statute (Code Civ. Proc., § 425.16)1. The primary issues on appeal involve the trial court’s resolution of a procedural morass under that statute in favor of Homeowners. We reject Contractor’s appellate contentions and affirm.

I. STATUTORY BACKGROUND

The anti-SLAPP statute provides that “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 under the United States Constitution or the 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); see Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043 (Braun); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 858-859 (Lafayette Morehouse).)2

1 All further code references are to the Code of Civil Proce-dure unless otherwise indicated. 2 “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 858.)

App. 3

Acts in furtherance of the right of petition or free speech include: “(1) any written or oral statement or writing made before a legislative, executive, or judi-cial 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 author-ized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitu-tional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e); see Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 102.)

The statute “posits . . . a two-step process for determining whether an action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action [arises] from protected activity. [Cita-tion.]” (Navellier, supra, 29 Cal.4th at p. 88; see Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)

“A defendant meets this burden by demonstrat-ing that the act underlying the plaintiff ’s cause [of action] fits one of the categories spelled out in section

App. 4

425.16, subdivision (e). . . .” (Braun, supra, 52 Cal.App.4th at p. 1043.) And whether a cause of action “aris[es] from” protected activity, within the scope of section 425.16, subdivision (b)(1), “means simply that the defendant’s act underlying the plain-tiff ’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cashman); see ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.)

If the trial court finds that the defendant has satisfied the first step, and shown the cause of action arises from protected activity, the court turns to the second step. The court “must then determine whether the plaintiff has demonstrated a probability of pre-vailing on the claim. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 88; see Equilon, supra, 29 Cal.4th at p. 67.)

This requires an evidentiary showing by the plaintiffs, who must show not only that their com-plaint is legally sufficient, but is supported by a prima facie showing of facts sufficient to sustain a judgment in their favor. (See Navellier, supra, 29 Cal.4th at pp. 88-89; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45 (Nagel).)

“In ruling on a motion to strike, the trial court does not weigh the evidence or determine questions of credibility; instead the court accepts as true all of the evidence favorable to the plaintiff. [Citation.]” (Nagel, supra, 109 Cal.App.4th at pp. 45-46.) The trial court

App. 5

does consider the defendant’s evidence against the plaintiff, “but only to determine if it defeats the plain-tiff ’s showing as a matter of law. [Citation.]” (Kash-ian v. Harriman (2002) 98 Cal.App.4th 892, 906.)

This two-step process is also described as a two-pronged test. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89.)

II. FACTUAL & PROCEDURAL BACKGROUND

We take the basic factual background from the parties’ pleadings. We emphasize that we present general allegations for background purposes only. The true facts of this case have yet to be determined, and the merits of the parties’ dispute are not before us.

Homeowners hired Contractor in October 2008 to perform substantial remodeling of their home, a converted former warehouse. The work allegedly in-volved construction or reconstruction of, inter alia, two bedrooms, an office, a bathroom/laundry area, closets, and a kitchen, and included extensive plumbing and electrical work. Homeowners informed Contractor they wanted the work to be completed, or perhaps substantially completed, by late February 2009, because they were expecting twin sons at that time.

App. 6

Homeowners’ twin sons were born premature. The parties agreed Homeowners would have occupan-cy of their house by January 29, 2009, apparently without completion of the work.

The relationship between Homeowners and Contractor deteriorated. Homeowners allege that Contractor performed “shoddy, unworkmanlike, defective work,” and that they and their architect prepared a “punch list” of nearly 100 construction defects. Homeowners also allege that Contractor refused to repair the “punch list” items and aban-doned the project, filing a mechanic’s lien on the property.

Contractor sued Homeowners for breach of contract and quantum meruit, claiming an unpaid portion of the contract price of over $90,000. Contrac-tor also sought foreclosure of its mechanic’s lien.

Homeowners filed a cross-complaint alleging five causes of action: (1) violation of the California Con-sumers Legal Remedies Act (Civ. Code, § 1750 et. seq.) (CLRA) for, inter alia, Contractor’s misrepresenting the quality of its services, missing deadlines, demand-ing full payment for defective work, overcharging, demanding payment for unsolicited overtime, and abusing the lien and litigation process; (2) violation of the California Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) (UPA) for similar behavior; (3) removal of an improper mechanic’s lien; (4) unjust enrichment; and (5) violation of Civil Code section 1584.5, which prohibits charging for unsolicited overtime.

App. 7

On May 13, 2010, without answering the cross-complaint, Contractor filed a demurrer to all but the second cause of action of the cross-complaint; a mo-tion to strike portions of the cross-complaint (motion to strike); and an anti-SLAPP special motion to strike the first, second, and third causes of action of the cross-complaint (anti-SLAPP special motion to strike). Contractor argued the three causes of action were “Strategic Litigation Against Public Policy” within the meaning of the anti-SLAPP statute because, by chal-lenging Contractor’s filing a lawsuit and a mechanic’s lien, the causes of action sought to punish Contrac-tor’s exercise of its constitutional right to petition for redress of grievances. The anti-SLAPP special motion to strike included a request for attorney’s fees.

The demurrer, motion to strike, and anti-SLAPP special motion to strike were set for hearing on June 10, 2010.

On May 25, 2010, Homeowners voluntarily dis-missed their cross-complaint without prejudice and filed a second cross-complaint.3 The second cross-complaint alleged causes of action for violation of CLRA and UPA, breach of agreements, and the covenant of good

3 Apparently, the clerk would not accept the new pleading for filing unless it was captioned “First Amended Cross-Complaint” and it was so changed by handwritten interlinea-tion. Homeowners claim “amended” is a misnomer because it was a new pleading following the dismissal. Since one cannot amend a dismissed pleading, we refer to the pleading as the second cross-complaint.

App. 8

faith and fair dealing, unjust enrichment, and viola-tion of Civil Code section 1584.5. The second cross-complaint omitted any allegations regarding the abuse of the litigation and mechanic’s lien processes, and deleted the cause of action for lien foreclosure. Homeowners admit the purpose of the new complaint was to render moot Contractor’s anti-SLAPP motion to strike, with the possible exception of the issue of attorney’s fees.4

Contractor took its demurrer and motion to strike off calendar, but filed a memorandum arguing Homeowners could not avoid liability for attorney’s fees on the anti-SLAPP special motion to strike by voluntarily dismissing their cross-complaint. Con-tractor also argued Homeowners had admitted the anti-SLAPP special motion to strike was meritorious by not opposing the motion, and by dismissing their cross-complaint and filing the second cross-complaint.

On the day before the June 10, 2010 hearing on the anti-SLAPP special motion to strike, the trial court issued this tentative ruling:

“The anti-SLAPP motion was meritorious and cross-defendant [Contractor] is the prevailing party. [Contractor] is awarded $7,429 as reasonable attor-ney fees and costs in the prosecution of its anti-SLAPP motion.”

4 They also intended to moot the demurrer and the other motion to strike, but the focus was clearly on the anti-SLAPP motion to strike.

App. 9

At the outset of the June 10, 2010 hearing, the court indicated that its complete tentative ruling should have been that the anti-SLAPP motion itself was moot; that nevertheless the anti-SLAPP motion was meritorious and Contractor is the prevailing party; and Contractor is awarded $7,429 as reasona-ble attorney fees and costs in the prosecution of its anti-SLAPP motion. The court then stated its belief that the dismissal of the cross-complaint mooted the motion, but kept alive the issue of attorney’s fees. The court explained it had reviewed the pleadings, deter-mined the motion was meritorious, and awarded fees.

After hearing argument, the court concluded that Contractor should bring a separate motion for attor-ney’s fees. The court ruled:

“The anti-SLAPP motion is deemed moot consid-ering that the . . . cross-complaint that it was ad-dressing is no longer before the Court. However, [Contractor] may bring a motion for attorney fees and costs.”5

On June 25, 2010, Contractor filed a motion for attorney’s fees and costs regarding its anti-SLAPP special motion to strike. That same day, Contractor

5 During the course of the hearing, Contractor’s counsel questioned whether it was procedurally proper to file a second cross-complaint in the same case after the first was dismissed, as opposed to filing the second cross-complaint as a new, separate action. Counsel also question whether one could amend a cross-complaint that had been dismissed. The court determined that those procedural questions could be left to future proceedings.

App. 10

filed three other documents: (1) a demurrer to the second cross-complaint, arguing, inter alia, that the court lacked subject matter jurisdiction over the sec-ond cross-complaint because there was no authority for filing a second cross-complaint, or an amended cross-complaint, after a voluntary dismissal; (2) a motion to strike the second cross-complaint, arguing, inter alia, “there is no such thing as a second cross-complaint or amendment of a dismissed cross-complaint”; and (3) a second anti-SLAPP special motion to strike the CLRA and UPA causes of action of the second cross-complaint. The second anti-SLAPP spe-cial motion to strike included a request for attorney’s fees.

On July 20, 2010, Contractor filed a motion for sanctions under section 128.7 against Homeowner’s counsel for filing a second cross-complaint when there was no legal basis for such a document. (§ 128.7, subd. (b)(2).)

Homeowners opposed all five of Contractor’s filings. In their opposition to the motion for attorney’s fees on the first anti-SLAPP special motion to strike, Homeowners argued that the first motion was with-out merit or of minimal merit.

After oral argument on August 27, 2010, the trial court ruled as follows6:

6 We do not discuss aspects of the rulings not pertinent to the issues on appeal.

App. 11

Motion for Attorney’s Fees Regarding First anti-SLAPP special motion to strike: Denied: “[Homeowners] have demonstrated a probability of prevailing on their claims and the court, upon presen-tation of all the evidence at a special hearing, would have denied the underlying anti-SLAPP motion.”7

Demurrer to the Second Cross-Complaint: Overruled with regard to Contractor’s claim that the court lacked subject matter jurisdiction.

Motion to Strike Second Cross-Complaint: Denied with regard to Contractor’s claim that a second cross-complaint was not authorized by law.

Second anti-SLAPP Special Motion to Strike: Denied.

Motion for Sanctions Under Code of Civil Procedure section 128.7: Denied. The court stated at the hearing that Homeowners’ counsel’s dismissal and filing of the second cross-complaint was “unor-thodox,” but not frivolous.

On September 27, 2010, Homeowners filed an amended cross-complaint, which added an allegation that Contractor had recorded an invalid mechanic’s lien and refused to remove it.

7 We see no issue regarding the trial court initially indicat-ing in the tentative ruling that the first anti-SLAPP special motion to strike was meritorious, but later carefully reconsider-ing and finding to the contrary.

App. 12

On October 26, 2010, Contractor filed a notice of appeal from the rulings regarding the two anti-SLAPP special motions to strike.

III. DISCUSSION

Contractor first contends the voluntary dismissal of the cross-complaint deprived the trial court of subject matter jurisdiction, because “there is no such thing” as a second cross-complaint. To answer this contention we need not engage in a metaphysical discussion of civil procedure. We need only indulge in some procedural common sense.

It is clear that a party targeted by an anti-SLAPP special motion to strike may voluntarily dismiss his pleading while the motion is pending. The dismissal renders the motion moot, but the trial court maintains limited jurisdiction to rule on the merits of the motion in order to decide the issue of attorney’s fees. (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 879; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 908, fn. 4.)

Thus, Homeowners’ voluntary dismissal was proper. The only question is its effect. A dismissal “without prejudice” means that the dismissing party may file a new action based on the same allegations, so long as the new filing is within the statutory limitations period. (Cardiff Equities, Inc. v. Superior Court (2008) 166 Cal.App.4th 1541, 1550; Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6.)

App. 13

However, the dismissed pleading was, as the parties agree, a compulsory cross-complaint. As such, it had to be filed in the action initiated by Contractor to avoid multiplicity of litigation. (§ 426.30; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1177, pp. 607-609; see Carroll v. Import Motors, Inc. (1995) 33 Cal.App.4th 1429, 1437 (Carroll).) When Homeown-ers dismissed their cross-complaint, the only action in which they could file the second cross-complaint was the action initiated by Contractor. (Cf. Carroll, supra, 33 Cal.App.4th at pp. 1436-1437 [plaintiff voluntarily dismissed his complaint after cross-complaint was filed; court held he could not file new action, but should have filed a compulsory cross-complaint in the initial action]; Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 445 [compulsory cross-complaint is “required to be brought and adjudicated in the action initiated by the plaintiff”].)

While we agree the dismissal and immediate refiling may have been unusual, if not unorthodox, we do not see a procedural bar and do not agree the trial court was divested of subject matter jurisdiction.

Second, Contractor contends that the trial court committed prejudicial error by requiring Contractor to file a separate, subsequent motion for attorney’s fees on its first anti-SLAPP special motion to strike, which it claims had the effect of the court considering a “late opposition” to the first motion to strike. Con-tractor seems to contend that it was mandatory for the court to consider the attorney’s fees issue at the time of determining the motion—in this case,

App. 14

determining the motion was moot except for the attorney’s fees issue.

The mechanism of a separate motion for attor-ney’s fees has been recognized as a valid tool in anti-SLAPP cases. (See, e.g., American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103.) We see no reason why a trial court would lack the power to proceed in that fashion. And of course, as noted in the authorities discussed above, the trial court would have to consider the merits of the anti-SLAPP special motion to strike to determine the issue of attorney’s fees. We see no error in this procedure.8

Third, Contractor contends the second cross-complaint is a classic SLAPP action, brought to interfere with its right to petition for redress of grievances, i.e., Contractor’s filing of a lawsuit and

8 We are not entirely clear about Contractor’s “late opposi-tion” reference. Presumably this refers to Homeowners’ opposi-tion to the second anti-SLAPP special motion to strike. In any case, the trial court properly reviewed the merits of the first motion at the time it denied the request for attorney’s fees based on that motion. Contractor also appears to argue that Homeowners’ dismis-sal is tantamount to an admission of the merits of the first anti-SLAPP special motion to strike. Under the authorities discussed above, this is an incorrect characterization. The only authority cited by Contractor involves the failure to file opposition to a noticed motion without a dismissal. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 9.105.10, p. 9(I)-81.)

App. 15

recording a mechanic’s lien. The parties have devoted a great deal of briefing to this issue, but we need not address the various subarguments because the an-swer to Contractor’s contention is simple. While litigation involves the right to petition the govern-ment for the redress of grievances, which falls within the anti-SLAPP statute’s protective scope (see Navellier, supra, 29 Cal.4th at p. 90; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115), Homeowners’ cross-complaint does not “arise from” Contractor’s act of filing its lawsuit or recording its lien. Rather, it arises predominantly, and almost entirely, from Contractor’s alleged con-duct connected to the construction project, such as its alleged shoddy workmanship, overbilling, etc. Thus, the anti-SLAPP statute simply does not apply here.

This is made clear by the companion cases of Navellier and Cashman. In Navellier, the defendant was sued for the very act of filing litigation in federal court. But for the litigation and related conduct, the plaintiff ’s claims against defendant had no basis. Thus, plaintiff ’s claims arose from matters protected by the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at p. 90.)

In contrast, the City of Cotati filed a declaratory relief action against defendants after, and in response to, federal litigation filed by the defendants challeng-ing a City ordinance. (Cashman, supra, 29 Cal.4th at p. 72.) City’s action involved the same ordinance, but did not refer to the federal action and simply sought a declaration that the ordinance was valid. (Id. at

App. 16

pp. 72, 77.) The California Supreme Court made it clear that actions which are merely responsive do not necessarily “ ‘aris[e] from’ ” the initial action. As the court noted, this “would in effect render all cross-actions potential SLAPP’s. We presume the Legisla-ture did not intend such an absurd result. [Citation.]” (Id. at p. 77.) The court also observed that “to suggest that all cross-actions arise from the causes of action in response to which they are pled would contravene the statutory scheme governing cross-complaints[,]” including compulsory cross-complaints. (Ibid.)

The trial court did not err by denying the anti-SLAPP special motions to strike and related requests for attorney’s fees.

Fourth, Contractor argues the trial court used the wrong standard in assessing its motion for sanc-tions against Homeowners’ counsel. The court found the dismissal and refiling was not frivolous. Contrac-tor correctly argues the standard for sanctions under section 128.7, subdivision (b)(2) is whether the dis-missal and refiling was authorized by law. We have found that it was. Thus, the trial court’s use of the standard of frivolousness is harmless error.

App. 17

IV. DISPOSITION

The rulings regarding the two anti-SLAPP spe-cial motions to strike are affirmed.9

Marchiano, P.J.

We concur:

Margulies, J.

Banke, J.

9 Contractor also argues the trial court erred by staying the entire action pending this appeal. Obviously, this contention is moot since this appeal has now been resolved. On page 48 of its opening brief, Contractor requested an order for immediate lifting of the stay. But such requests should be made by separate motion (Cal. Rules of Court, rule 8.54), and not buried in a brief.

App. 18

JP BUILDERS INC., Plaintiff, Cross-defendant and Appellant, v. LISA LEEBOVE et al.,

Defendants, Cross-complainants and Respondents.

A130270

COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE

2011 Cal. App. Unpub. LEXIS 8365

October 31, 2011, Filed

NOTICE: 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 CERTI-FIED FOR PUBLICATION OR ORDERED PUB-LISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY:

San Francisco City & County Super. Ct. No. CGC-09-494044.

JUDGES: Marchiano, P.J.

OPINION BY: Marchiano

OPINION

ORDER MODIFYING OPINION AND DENYING REHEARING

[No Change in Judgment]

App. 19

THE COURT:

It is ordered that the opinion filed herein on October 7, 2011, be modified as follows:

On pages 9-10, the first sentence of the fourth full paragraph, the words “second cross-complaint” should be changed to “cross-complaint” so the sen-tence reads:

Third, Contractor contends the cross-complaint is a classic SLAPP action, brought to interfere with its right to petition for redress of grievances, i.e., Contractor’s filing of a lawsuit and recording a mechanic’s lien.

The petition for rehearing in [sic] denied.

Date:

P.J.

App. 20

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JP BUILDERS, INC.

Plaintiff,

vs.

LEEBOVE, et al.

Defendants,

and related cross-action.

Case No. CGC-09-494044

ORDER ON PLAINTIFF/ CROSS-DEFENDANT JP BUILDERS, INC.’S SPE-CIAL MOTION TO STRIKE (ANTI-SLAPP) THE FIRST, SECOND, AND THIRD CLAIMS FOR RELIEF OF DEFENDANTS/CROSS-COMPLAINANTS LEEBOVEAND STEINBERG’S CROSS-COMPLAINT AND MO-TION FOR AN AWARD OF ATTORNEY’S FEES AND COSTS

(Filed Aug. 27, 2010)

Judge: Hon. Charlotte Walter Woolard Dept.: 302 Date: 10 June 2010 Time: 9:30 a.m.

On 10 June 2010, in Department 302 of the above-entitled court, located at 400 McAllister Street, San Francisco, California, Plaintiff/Cross-Defendant JP Builders Inc.’s Special Motion to Strike (Anti-SLAPP) the First, Second, and Third Claims for Relief of the Cross-Complaint of Defendants/Cross-Complainants Lisa Leebove and Steve Steinberg and

App. 21

Motion for an Award of Attorney’s Fees and Costs came on regularly for hearing before the Honorable Charlotte Walter Woolard, Judge, presiding. Kenneth H. Natkin appeared on behalf of the moving party, Plaintiff/Cross-Defendant JP Builders, Inc. Samer Danfoura appeared on behalf of Defendants/Cross-Complainants Lisa Leebove and Steve Steinberg.

IT IS ORDERED THAT:

Inasmuch as the Cross-Complaint filed by Defendants/Cross-Complainants Lisa Leebove and Steve Steinberg had been dismissed on May 25, 2010, the Special Motion to Strike (Anti-SLAPP) the First, Second, and Third Claims for Relief therein is moot and the court declines to issue any ruling regarding the Second Cross-Complaint/First Amended Cross-Complaint.

IT IS FURTHER ORDERED THAT:

/s/ CWW

The anti-SLAPP motion is meritorious and Cross-Defendant JP Builders, Inc., is the prevailing party. The court declines to rule on the concurrently filed Motion for attorney fees and costs, preferring Plaintiff/Cross Defendant JP Builders [may] bring a separately noticed motion for attorney fees and costs incurred in the prosecution of its anti-SLAPP motion.

Date: ___ June 2010 8-27-10

App. 22

/s/ Charlotte W. Woolard Hon. Charlotte Walter Woolard, Judge

App. 23

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO- LIMITED JURISDICTION

JP BUILDERS, INC., a California Corporation;

Plaintiff,

vs.

LISA LEEBOVE and STEVE STEINBERG, husband and wife, and DOES 1 through 20, inclusive

Defendant.

)))))))))))))))))))))))

Case No.: CGC-09-494044

[PROPOSED] ORDER ON PLAINTIFF/CROSS-DEFENDANT JP BUILDERS, INC.’S MOTION FOR AN AWARD OF ATTOR-NEY’S FEES AND COSTS ON PLAINTIFF/CROSS-DEFENDANT JP BUILDERS, INC.’S MOTION TO STRIKE (ANTI-SLAPP) FIRST, SECOND AND THIRD CLAIMS FOR RELIEF, ETC.

(Filed Aug. 27, 2010)

Date: August 27, 2020 [sic]Time: 9:30 a.m. Dept.: 302 Judge: Hon. Charlotte W. Woolard

The motion to [sic] for an award of attorney’s fees and costs in connection with Plaintiff JP BUILDERS, INC.’s May 13, 2010 special motion to strike (Anti-S.L.A.P.P.) the first, second, and third claims for relief herein, came on in Department 302 for hearing by the

App. 24

Court on August 27, 2010. Kenneth Natkin, Esq. and Benjamin Natkin, Esq. appeared for Plaintiff; Samer Danfoura, Esq. appeared for Defendants. The Court, having read and considered the supporting and opposing points and authorities and evidence, and having heard the oral arguments of the attorneys, and good cause appearing therefor,

IT IS ORDERED that the motion to [sic] for an award of attorney’s fees and costs on JP BUILDER’S INC. first anti-S.L.A.P.P. motion be, and hereby is, DENIED. Defendants/Cross-Complainants have dem-onstrated a probability of prevailing on their claims and the court, upon presentation of all of the evidence at a special hearing, would have denied the underly-ing anti-S.L.A.P.P. motion.

Dated: August 27, 2010

/s/ CHARLOTTE WALTER WOOLARD JUDGE OF THE SUPERIOR

COURT

App. 25

Court of Appeal, First Appellate District, Division One – No. A130270

S197623

IN THE SUPREME COURT OF CALIFORNIA

En Banc

(Filed Jan. 18, 2012)

JP BUILDERS INC., Plaintiff, Cross-defendant and Appellant,

v.

LISA LEEBOVE et al., Defendants, Cross-complainants and Respondents.

The motion to strike the answer, filed on Decem-ber 5, 2011, is denied.

The motion to vacate the stay, filed on December 5, 2011, is denied.

The petition for review is denied.

The requests for an order directing publication of the opinion are denied.

/s/ CANTIL-SAKAUYE Chief Justice

App. 26

Rule 14.1(f) Materials:

United States Constitution, Article VI

. . . .

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

. . . .

United States Constitution, Amendment I

Congress shall make no law respecting an establish-ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assem-ble, and to petition the government for a redress of grievances.

United States Constitution, Amendment XIV, Section 1

. . . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process

App. 27

of law; nor deny to any person within its jurisdiction the equal protection of the laws.

California Constitution, Article I, Section 3

(a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

(b) (1) The people have the right of access to infor-mation concerning the conduct of the people’s busi-ness, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protect-ing that interest.

(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures

App. 28

governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.

(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confi-dentiality of law enforcement and prosecution rec-ords.

(6) Nothing in this subdivision repeals, nulli-fies, supersedes, or modifies protections for the confi-dentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.

App. 29

California Constitution, Article I, Section 7

(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing con-tained herein or elsewhere in this Constitution im-poses upon the State of California or any public entity, board, or official any obligations or responsibil-ities which exceed those imposed by the Equal Protec-tion Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforc-ing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transpor-tation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal deci-sional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

. . . .

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

App. 30

California Constitution, Article VI, Section 6

(a) The Judicial Council consists of the Chief Justice and one other judge of the Supreme Court, three judges of courts of appeal, 10 judges of superior courts, two nonvoting court administrators, and any other nonvoting members as determined by the voting membership of the council, each appointed by the Chief Justice for a three-year term pursuant to procedures established by the council; four members of the State Bar appointed by its governing body for three-year terms; and one member of each house of the Legislature appointed as provided by the house.

(b) Council membership terminates if a member ceases to hold the position that qualified the member for appointment. A vacancy shall be filled by the appointing power for the remainder of the term.

(c) The council may appoint an Administrative Director of the Courts, who serves at its pleasure and performs functions delegated by the council or the Chief Justice, other than adopting rules of court administration, practice and procedure.

(d) To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommenda-tions annually to the Governor and Legislature, adopt rules for court administration, practice and proce-dure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute.

App. 31

(e) The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge’s consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court.

(f) Judges shall report to the council as the Chief Justice directs concerning the condition of judicial business in their courts. They shall cooperate with the council and hold court as assigned.

California Constitution, Article VI, Section 12

(a) The Supreme Court may, before decision, trans-fer to itself a cause in a court of appeal. It may, before decision, transfer a cause from itself to a court of appeal or from one court of appeal or division to another. The court to which a cause is transferred has jurisdiction.

(b) The Supreme Court may review the decision of a court of appeal in any cause.

(c) The Judicial Council shall provide, by rules of court, for the time and procedure for transfer and for review, including, among other things, provisions for the time and procedure for transfer with instructions, for review of all or part of a decision, and for remand as improvidently granted.

App. 32

(d) This section shall not apply to an appeal involv-ing a judgment of death.

California Constitution, Article VI, Section 14

The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person.

Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.

California Code of Civil Procedure Section 425.16

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitu-tional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public signifi-cance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the

App. 33

person’s right of petition or free speech under the United States Constitution or the California Consti-tution 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that deter-mination in any later stage of the case or in any subsequent proceeding.

(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defend-ant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

App. 34

(2) A defendant who prevails on a special mo-tion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Gov-ernment Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attor-ney, or city attorney, acting as a public prosecutor.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connec-tion 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 pro-ceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in further-ance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

App. 35

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discre-tion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivi-sion.

(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff ” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”

(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(j) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the en-dorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting

App. 36

or denying a special motion to strike, discovery, or fees.

(2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate elec-tronic media.

California Rules of Court:

Rule 8.500. Petition for review

. . . .

(b) Grounds for review

The Supreme Court may order review of a Court of Appeal decision:

(1) When necessary to secure uniformity of decision or to settle an important ques-tion of law;

(2) When the Court of Appeal lacked juris-diction;

(3) When the Court of Appeal decision lacked the concurrence of sufficient qual-ified justices; or

(4) For the purpose of transferring the mat-ter to the Court of Appeal for such pro-ceedings as the Supreme Court may order.

. . . .

App. 37

Rule 8.1100. Authority

The rules governing the publication of appellate opinions are adopted by the Supreme Court under section 14 of article VI of the California Constitution and published in the California Rules of Court at the direction of the Judicial Council.

Rule 8.1105. Publication of appellate opinions

(a) Supreme Court

All opinions of the Supreme Court are pub-lished in the Official Reports.

(b) Courts of Appeal and appellate divi-sions

Except as provided in (e), an opinion of a Court of Appeal or a superior court appellate division is published in the Official Reports if a majority of the rendering court certifies the opinion for publication before the decision is final in that court.

(c) Standards for certification

An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Offi-cial Reports if the opinion:

(1) Establishes a new rule of law;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

App. 38

(3) Modifies, explains, or criticizes with rea-sons given, an existing rule of law;

(4) Advances a new interpretation, clarifica-tion, criticism, or construction of a provi-sion of a constitution, statute, ordinance, or court rule;

(5) Addresses or creates an apparent con-flict in the law;

(6) Involves a legal issue of continuing pub-lic interest;

(7) Makes a significant contribution to legal literature by reviewing either the devel-opment of a common law rule or the leg-islative or judicial history of a provision of a constitution, statute, or other writ-ten law;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and sep-arate opinions would make a significant contribution to the development of the law.

(d) Factors not to be considered

Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not

App. 39

affect the determination of whether to pub-lish an opinion.

(e) Changes in publication status

(1) Unless otherwise ordered under (2), an opinion is no longer considered pub-lished if the Supreme Court grants re-view or the rendering court grants rehearing.

(2) The Supreme Court may order that an opinion certified for publication is not to be published or that an opinion not certi-fied is to be published. The Supreme Court may also order publication of an opinion, in whole or in part, at any time after granting review.

(f) Editing

(1) Computer versions of all opinions of the Supreme Court and Courts of Appeal must be provided to the Reporter of Decisions on the day of filing. Opinions of superior court appellate divisions certified for publication must be provid-ed as prescribed in rule 8.887.

(2) The Reporter of Decisions must edit opinions for publication as directed by the Supreme Court. The Reporter of De-cisions must submit edited opinions to the courts for examination, correction, and approval before finalization for the Official Reports.

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Rule 8.1110. Partial publication

(a) Order for partial publication

A majority of the rendering court may certify for publication any part of an opinion meet-ing a standard for publication under rule 8.1105.

(b) Opinion contents

The published part of the opinion must speci-fy the part or parts not certified for publica-tion. All material, factual and legal, including the disposition, that aids in the application or interpretation of the published part must be published.

(c) Construction

For purposes of rules 8.1105, 8.1115, and 8.1120, the published part of the opinion is treated as a published opinion and the un-published part as an unpublished opinion.

Rule 8.1115. Citation of opinions

(a) Unpublished opinion

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

App. 41

(b) Exceptions

An unpublished opinion may be cited or re-lied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

(2) When the opinion is relevant to a crimi-nal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in an-other such action.

(c) Citation procedure

A copy of an opinion citable under (b) or of a cited opinion of any court that is available only in a computer-based source of decisional law must be furnished to the court and all parties by attaching it to the document in which it is cited or, if the citation will be made orally, by letter within a reasonable time in advance of citation.

(d) When a published opinion may be cited

A published California opinion may be cited or relied on as soon as it is certified for publi-cation or ordered published.

App. 42

Rule 8.1120. Requesting publication of un-published opinions

(a) Request

(1) Any person may request that an un-published opinion be ordered published.

(2) The request must be made by a letter to the court that rendered the opinion, con-cisely stating the person’s interest and the reason why the opinion meets a standard for publication.

(3) The request must be delivered to the rendering court within 20 days after the opinion is filed.

(4) The request must be served on all par-ties.

(b) Action by rendering court

(1) If the rendering court does not or cannot grant the request before the decision is final in that court, it must forward the request to the Supreme Court with a copy of its opinion, its recommendation for disposition, and a brief statement of its reasons. The rendering court must forward these materials within 15 days after the decision is final in that court.

(2) The rendering court must also send a copy of its recommendation and reasons to all parties and any person who re-quested publication.

App. 43

(c) Action by Supreme Court

The Supreme Court may order the opinion published or deny the request. The court must send notice of its action to the render-ing court, all parties, and any person who re-quested publication.

(d) Effect of Supreme Court order to pub-lish

A Supreme Court order to publish is not an expression of the court’s opinion of the cor-rectness of the result of the decision or of any law stated in the opinion.

Rule 8.1125. Requesting depublication of pub-lished opinions

(a) Request

(1) Any person may request the Supreme Court to order that an opinion certified for publication not be published.

(2) The request must not be made as part of a petition for review, but by a separate letter to the Supreme Court not exceed-ing 10 pages.

(3) The request must concisely state the person’s interest and the reason why the opinion should not be published.

(4) The request must be delivered to the Supreme Court within 30 days after the decision is final in the Court of Appeal.

App. 44

(5) The request must be served on the ren-dering court and all parties.

(b) Response

(1) Within 10 days after the Supreme Court receives a request under (a), the render-ing court or any person may submit a response supporting or opposing the re-quest. A response submitted by anyone other than the rendering court must state the person’s interest.

(2) A response must not exceed 10 pages and must be served on the rendering court, all parties, and any person who requested depublication.

(c) Action by Supreme Court

(1) The Supreme Court may order the opin-ion depublished or deny the request. It must send notice of its action to the ren-dering court, all parties, and any person who requested depublication.

(2) The Supreme Court may order an opin-ion depublished on its own motion, noti-fying the rendering court of its action.

(d) Effect of Supreme Court order to depublish

A Supreme Court order to depublish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.