Page 1
Court of Appeal:
Letter Not Threatening Lawsuit Is Not a Prelitigation Demand
Opinion Says Attorney’s Communications, Asserting Breach of Contract, Client’s Interest in Restaurant, Do Not Amount to Protected Speech Under Anti-SLAPP Statute
By Kimber Cooley, associate editor
|
|
|
PERFECTE ROCHER chef |
Div. One of the Fourth District Court of Appeal held yesterday that an executive chef’s anti-SLAPP motion was properly denied as he failed to establish that a series of communications by his attorney, asserting the client’s ownership interests in a restaurant venture after the relationship between the parties soured, amounted to a protected prelitigation demand where the letters did not contain express threats of filing legal action.
Former partners of the chef, who were at one point working with him to launch a new La Jolla-area restaurant, filed a complaint against him after the letters and emails at issue were sent, seeking declaratory relief and asserting slander of title. The defendant argued that the claims were based solely on his lawyer’s communications.
At issue is the applicability of California’s anti-SLAPP statute, found at Code of Civil Procedure §425.16, which provides:
“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.”
Subdivisions (e)(1) and (2) specify that an act in furtherance of a right of petition includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” and “any written or oral statement or writing made in connection with an issue under consideration” by such a body.
In an unpublished opinion, authored by Justice William Dato and joined in by Acting Presiding Justice Terry B. O’Rourke and Justice Truc T. Do, the court acknowledged that the letters and emails at issue accused the defendants of breach of contract and proposed a settlement between the parties, but said that the failure to attach the draft of a complaint or expressly threaten litigation undermined the defendant’s assertion.
Restaurant Partnership
The dispute arose after partners Paul Basile and Jules Wilson invited chef Perfecte Rocher to join them in developing a restaurant in the spring of 2022. Rocher alleges that he was asked to design the menu, source vendors, and perform other preliminary tasks in exchange for an equal ownership share in the restaurant venture.
An employment offer set forth the chef’s duties and anticipated the equal ownership arrangement. In September, Basile sent Rocher a draft contract granting the chef a conditional equity interest that would vest once certain financial thresholds were met.
Before the operating agreement was finalized or executed, the relationship between the parties broke down and Rocher was terminated in October. He hired attorney Chet H. Olsen of Sage Law Partners in Culver City to pursue wrongful termination and breach of contract claims against Basile, Wilson, and the limited liability company set up for the restaurant, Nobility SD LLC.
In an October letter, Olsen asserted that “[w]hile an operating agreement was never finalized or signed by any of the LLC members, this is not a requirement for our client’s membership interest in the LLC to legally exist” and said “[w]e fully expect you and the other LLC members to comply with its legal obligations.”
He “suggested” that “legal counsel contact me immediately.” In an ensuing phone call with attorney James A. McFaul, Olsen made a settlement demand for $250,000, which was later rejected.
On Jan. 18, 2023, Basile, Wilson, and Nobility filed their complaint against Rocher. As to their cause of action for slander of title, they claim that “Rocher asserts that he is an owner…, casting doubt on the existing members of [Nobility]” and that the plaintiffs were “compelled to reproduce Rocher’s false statement to investors,” causing project delays, legal expenses, and other financial harm.
After Rocher filed the anti-SLAPP motion, then-San Diego Superior Court Judge Keri G. Katz (now a mediator/arbitrator) found that the plaintiffs’ claims were based on Olsen’s communications but concluded that the letters did not relate to litigation that was “contemplated in good faith and under serious consideration” as required by §425.16.
Demand Letter
Dato noted that Rocher asserts on appeal that Olsen’s October correspondence amounts to a prelitigation “demand letter” entitled to categorical protection under the anti-SLAPP statute.
The jurist agreed with the defendant that the plaintiffs’ slander of title claim is based on the announcement, in the Olsen communications, that Rocher owns a piece of the restaurant, as the cause of action requires proof of publication. But he rejected the idea that the chef had made a prima facia showing that his assertions are protected prelitigation speech.
He wrote:
“We do not doubt that a true demand letter…typically qualifies as protected conduct….But we do not agree that Olsen’s communications, taken separately or together, amount to a demand letter that intrinsically anticipates litigation.”
Pointing out that the cases on which Rocher relies “explicitly threaten imminent litigation,” he said:
“Olsen never sent a proposed complaint or otherwise threatened to initiate litigation unless Nobility satisfied certain demands….Nowhere in this letter did Olsen threaten or propose to file suit if Nobility refused to recognize Rocher’s interests in the LLC and the restaurant.”
As to the settlement demand, he concluded:
“We have no evidence…that Olsen demanded that Nobility pay this amount or else Rocher would file suit….It is entirely possible that Olsen gave Nobility two choices that did not involve litigation: either honor Rocher’s interests or pay him $250,000.”
Under these circumstances, he declared that “these communications do not clearly and/or intrinsically anticipate litigation” and so do qualify as “demand letters” for purposes of anti-SLAPP analysis.
Good Faith, Serious Contemplation
The jurist remarked that in cases falling short of a formal demand letter, courts have found, borrowing a principle from litigation-privilege jurisprudence, that the anti-SLAPP protections for pre-filing discussions will only apply if the proposed proceeding is actually contemplated in good faith and under serious consideration.
Applying the standard, he opined:
“Of course, engaging an attorney to send a letter can often be a step toward litigation. But not every communication from an attorney is protected under the anti-SLAPP statute; the question remains whether litigation has become more than a mere possibility. Here, Olsen’s October letter is most reasonably read as a request for Nobility to comply with its contractual obligations, as Rocher understood them….
“As we read this letter, Rocher initially sought to enforce the agreement outlined in his employment offer letter and continue his partnership with Nobility. He hoped to work things out, not litigate.”
Acknowledging that Rocher filed a declaration in which he averred that he hired Olsen to pursue legal claims against the plaintiffs, Dato said that the document “fails to show that he was seriously contemplating litigation” because the defendant admitted that he was planning on filing a complaint only if negotiations failed.
Rocher did file a complaint against the plaintiffs in May 2023, but the justice opined:
“[T]he delay is further circumstantial evidence that Rocher was not yet seriously considering litigation between October 2022 and January 2023, when the statements at issue were made.”
As to the plaintiffs’ declaratory relief claim, Dato concluded that “[t]he actual controversy” underlying this cause of action is “whether Rocher holds a membership interest in the LLC” and declared that Rocher has failed to carry his burden of demonstrating that it arose from protected activity.
The case is Nobility SD LLC v. Rocher, D083268.
Copyright 2025, Metropolitan News Company