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Court of Appeal:
Letter Sent by Loeb & Loeb Partner Was Not Protected
Judge Hammock, Adhering to Recent Case Law, Granted Anti-SLAPP Motion, but Urged Plaintiffs to Appeal; Presiding Justice Stratton’s Opinion Expresses Disagreement With Two Cases the Trial Judge Followed
By a MetNews Staff Writer
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BERNARD GIVEN II attorney |
The Court of Appeal for this district yesterday ordered reinstatement of an action against the law firm of Loeb & Loeb, giving Los Angeles Superior Court Judge Randolph Hammock something a trial judge seldom hopes for—a reversal.
Hammock, in granting an anti-SLAPP motion sought by the law firm on July 12, 2022, commented that the outcome was “probably not” fair and urged the plaintiffs to appeal.
At issue in the lawsuit is whether a March 28, 2018 letter that Loeb & Loeb partner Bernard Given II wrote on behalf of Aviron Capital was deceptive and caused detriment to plaintiffs Medallion Film, Pelican Point Capital Partners, and others.
Hammock opined that if Given maliciously lied, the plaintiffs “should be able to sue” Loeb & Loeb “for that.” However, the judge acceded to the dictates of case law.
Cases Not Followed
In yesterday’s opinion, Presiding Justice Maria E. Stratton of Div. Eight expressed disagreement with two Court of Appeal decisions, relied upon by Hammock, that minimize, without discarding, the rule that pre-litigation conduct, to warrant protection, be in good faith contemplation of litigation that is “under serious consideration.”
The cases are RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., decided in 2020 by the Fourth District’s Div. One, and Pech v. Doniger, handed down in 2022 by this district’s Div. Five.
While Hammock said in his order that he “adopts the modern trend” of the cases, Stratton cited 11 earlier cases applying the “good faith and serious consideration requirement,” siding with them.
Agreement Formed
The letter Given sent went to a company called BlackRock. The plaintiffs had entered into an agreement with Clarius Capital Group under which the plaintiffs would seek funding from its contacts for Clarius’s film projects; one of the contacts enumerated in the agreement was BlackRock; it was specified that Clarius would not directly enter into transactions with any of the contacts; the owner of Clarius shifted its assets to a new company, Aviron which he owned.
Aviron then obtained a loan from BlackRock, without paying a commission to plaintiffs Medallion and Pelican Point. The co-founder of Pelican Point sent an email to a principal a BlackRock saying, in part:
“What can you do to assist us here in collecting what is due to us….Let us know so we don[’]t have to litigate and can resolve the matter in an amicable fashion.”
Given’s Letter
Given wrote to principals of Medallion and Pelican Point:
“Aviron has no legal connection to Clarius Capital Group, LLC whatsoever. It is not a successor in interest and there is no common ownership between the two companies.”
He represented that the man who had owned Clarius was merely an employee of Aviron and added that further communication to anyone at BlackRock “regarding this matter will be considered by Aviron to constitute tortious interference.”
The plaintiffs maintain that they relied upon those representations to their detriment, learning later that Loeb and Loeb had set up Aviron, knew that the owner of Clarius now owned Aviron, represented Aviron in gaining funds from BlackRock, and were aware that the plaintiffs had entitlement to a commission.
Stratton’s Opinion
Stratton declared that “Given’s representations were not communications made in preparation for or in anticipation of litigation” and were not protected conduct, as required by the first prong of the merely anti-SLAPP statute, Code of Civil Procedure §425.16, explaining:
“From the first sentence of its appellate brief, Loeb & Loeb repeatedly and hyperbolically describes the email to which Given responded as an explicit threat of litigation conclusively establishing Given’s letter as anticipating litigation. But the actual message to which Given was responding was nothing of the sort. This was not a demand letter or litigation threat, and it was not even directed to Aviron. Rather, plaintiffs reached out to their contact at BlackRock…and asked for BlackRock’s help in securing the payment to which they thought they were entitled….”
She said that “[t]he email demonstrates the plaintiffs just wanted to be paid, and they were appealing to whomever they thought would be influential” in prompting payment to them “without having to resort to litigation,” remarking:
“This is the exact opposite of a threat of litigation.”
‘Remote Possibility’
The presiding justice added:
“While eventual litigation was a remote possibility from the mere fact that the message alerted Given that someone wanted something from Aviron, a remote possibility is not enough to demonstrate a communication is actually connected to litigation and is therefore protected.
“….Once we dispense with the fiction that plaintiffs’ email to BlackRock was an explicit threat of litigation against Aviron, Loeb & Loeb offers no evidence that Given wrote his letter in good faith and serious contemplation of litigation….Given’s bombastic and disproportionate response to an email not even directed to his client is not a communication made in good faith and serious contemplation of litigation but an attempt to dissuade the plaintiffs from making any further inquiries.”
Fraud Alleged
The plaintiffs included a cause of action not stemming from Given’s letter. It accused Loeb & Loeb of aiding and abetting fraud by setting up Aviron and otherwise assisting in depriving the plaintiffs of a commission. Stratton noted that this conduct came before Given sent the letter and “has no connection to protected activity.”
Although the conclusion that protected conduct had not been shown, preluding the granting of an anti-SLAPP motion, Stratton nonetheless discussed whether the requisite of the second prong of statute—a probability of success on the merits—was met by Loeb & Loeb, and determined that it was not. Finding that the litigation privilege is inapplicable, she wrote:
“We are not persuaded Given’s letter is protected by the litigation privilege. Given’s representations did not relate to litigation that was contemplated in good faith and under serious consideration.”
The case is Medallion Film LLC v. Loeb & Loeb LLP, B323356.
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