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Court of Appeal:
Anti-SLAPP Motion Likening Parties to ‘Hatfields,’ ‘McCoys’ Properly Denied
Opinion Says Denial Proper in Malicious Prosecution Action by Radio Tower Tycoon Against Competitor, Lawyer Over Assertions That Prior Lawsuit Was Meritless
By a MetNews Staff Writer
Anti-SLAPP motions were properly denied as to a malicious prosecution action by a radio communications tycoon against a competitor and his attorney asserting that a prior lawsuit filed by the defendants was meritless, Div. Eight of the Court of Appeal for this district has held in the latest in a series of disputes likened in one motion to the “Hatfields and McCoys” deadly feud between two Appalachian neighbors in the late 1800s.
Appealing the denials as to each of their motions by then-Los Angeles Superior Court Judge Michael P. Linfield, now litigation director of a law firm, were Harold Pick and his former attorney, Levi Lesches, whose office is in the Miracle Mile area of Los Angeles.
The acrimony between Pick and his competitor. James A. Kay Jr., president of Lucky Two Way Radios Inc., purportedly began in 1992 after Pick filed a complaint with the Federal Communications Commission (“FCC”), which resulted in Kay losing some of his licenses.
Following the FCC action, Kay filed multiple lawsuits against Pick for slander and other causes of action. Pick eventually filed for bankruptcy, leading to still more lawsuits between the parties.
Separately, Motorola Solutions Inc. obtained a $1.2 million judgment against Pick in 2005 for copyright infringement after the FBI conducted a raid at Pick’s shop due to an association with a convicted conman, Nicholas DeLuca, who was suspected of stealing from the manufacturing giant.
Motorola did not make any effort to enforce the judgment against Pick until 2014, when Kay offered to fund and control collection efforts for the company at no cost. According to Pick, this agreement was motivated by a vendetta against Pick and a desire to make good on his long-standing threat to render Pick and his family “homeless.”
One of three subsequent enforcement actions by Motorola against Pick was successful.
Racketeering Alleged
In 2019, Pick, through Lesches as his counsel, filed a federal action under the Racketeer Influenced and Corrupt Organizations Act, codified at 18 U.S.C. §1961 et seq., arguing that Kay funded the three Motorola enforcement actions in retribution for Pick’s reporting of Kay to the FCC in violation of §1513, the Victim and Witness Protection Act, which prohibits retaliation against certain witnesses and informants.
Kay successfully argued that the suit was barred by the Noerr-Pennington doctrine—named after the U.S. Supreme Court cases of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. and Mine Workers v. Pennington—which ensures that private entities are immune from antitrust liability for petitioning the government by, among other actions, filing or funding litigation.
The RICO action was dismissed by now Chief District Court Judge Dolly M. Gee of the Central District of California, a decision affirmed by the Ninth U.S. District Court of Appeals.
In 2023, Kay and Lucky Two Way Radios filed the operative complaint in Los Angeles Superior Court against Kay and Lesches, arguing that the RICO action was malicious as his funding of the Motorola actions was “absolutely privileged under the Noerr-Pennington doctrine, as made clear by” binding Ninth Circuit authority.
Pick and Lesches each filed special motions to strike under California’s anti-SLAPP statute, codified at Code of Civil Procedure §425.16.
In denying both motions, Linfield found that Kay had established a reasonable probability of prevailing on his causes of action. Both defendants appealed.
Acting Presiding Justice Elizabeth A. Grimes authored two unpublished opinions, filed Friday, affirming the denial as to each defendant. Justices John Shepard Wiley Jr. and Victor Viramontes joined in the opinions.
Anti-SLAPP Motion
An anti-SLAPP motion is analyzed in two parts—the defendant must first make a prima facie showing that the plaintiff’s complaint arises from actions furtherance of the right to petition or of free speech and, if that effort succeeds, the plaintiff must then establish a reasonable probability of success on the merits.
In the present case, Grimes concluded:
“There is no question Kay’s malicious prosecution lawsuit…for filing the RICO action arises from petitioning activity protected under the First Amendment to the United States Constitution and falls within the purview of the anti SLAPP statute.
“Thus, the issues on appeal are limited to whether Kay has…demonstrated a reasonable probability of prevailing on his malicious prosecution cause of action. This cause of action requires Kay to establish that the RICO action was ‘(i) initiated or maintained by, or at the direction of, [the defendants], and pursued to a legal termination in favor of [Kay]; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice.’ ”
Lesches’ Motion
As to Lesches’ motion, she said the decision turns on questions of probable cause and malice. The probable cause inquiry turns on the reasonableness of a defendant’s conduct, which in this case depends on the tenability of Pick’s RICO claim.
Under that standard, she opined:
“Noerr-Pennington applies to the filing, as well as funding, of lawsuits….However, ‘neither the Petition Clause nor the Noerr-Pennington doctrine protects sham petitions, and statutes need not be construed to permit them.’….Sham lawsuits are those which (1) are objectively baseless and the defendant’s motive in bringing them was unlawful…; or (2) are part of a series of lawsuits ‘brought pursuant to a policy of starting legal proceedings without regard to the merits’ and for an unlawful purpose…; or (3) involve making intentional misrepresentations to the court….It seems plain to us that the Motorola lawsuits Kay funded were not sham lawsuits….”
Saying that some of Lesches’ arguments to the contrary amount to “brazen mischacterization[s] of authority,” she was unpersuaded that the lawyer could be said to have acted reasonably in pursuing the matter.
Turning to malice, she remarked:
“Whether or not Lesches was aware of the Noerr-Pennington immunity bar when he initiated the RICO action, he certainly knew of it when he maintained the action in spite of that bar. The [complaint] lists nine purported reasons Noerr-Pennington did not apply….In litigating the issues, Lesches made blatant misrepresentations to the district court and to the Ninth Circuit about the state of the law—implying he knew a correct representation of the law would not support his position.”
She added:
“We note Lesches’s repeated description of his advocacy as ‘innovative’ or ‘creative.’ Saying cases stand for propositions they do not may technically be both of these things, but it is not an acceptable form of advocacy. We are satisfied that the character of Lesches’s continued advocacy in the face of an obvious bar to the RICO action establishes a prima facie showing of malice and therefore need not consider Lesches’s other malice arguments.”
As to Pick’s motion, Grimes said:
Pick argues that the plaintiffs cannot prove the malice element of malicious prosecution. Unpersuaded, Grimes said:
“Pick glosses over the acrimonious history between him and Kay. He says…‘….[r]ather than be swept up in a whirlwind of childish and pejorative rendition of litigation by the parties for the last thirty years, [Pick] opts to address the pertinent issues only, in an attempt to present a rational view of pertinent facts.’ But the history is pertinent. It was the basis for the trial court’s determination Kay made a prima facie showing of Pick’s malice. By not discussing it, much less showing it lacks relevance, Pick again fails to show error.”
The cases are Kay v. Lesches, B330105, and Kay v. Pick, B330108.
Kay was represented by Timothy Desiderio McGonigle, Thomas Ward Foote, and Stephanie Morgan Banks of the Century City firm Timothy D. McGonigle, APC. Stephen J. Tully, Ryan C. Squire, and Brian William Ludeke of Garrett & Tully P.C. acted for Lesches.
Pick represented himself on appeal.
Kay made headlines in 2004 over plans to build a hobby ranch on Castro Peak in the Santa Monica mountains, facing fines for violating building codes, blazing roads without permits, and allegedly clearing road access through neighboring national parkland. In a 2004 Los Angeles Times story noting neighbors complaints over his plans, Kay is quoted as saying:
“One of my competitors in the radio industry called me ‘an enraged, rabid pit bull chewing his calf to the bone.’ I took that as a compliment. No matter how he tried to beat on me, I kept on chewing.”
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