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This case was last updated from Los Angeles County Superior Courts on 06/08/2021 at 07:56:27 (UTC).

NATIONAL PAYMENT SYSTEMS OR, L.L.C. VS TERRY FABRICANT, ET AL.

Case Summary

On 06/03/2020 NATIONAL PAYMENT SYSTEMS OR, L L C filed a Contract - Other Contract lawsuit against TERRY FABRICANT. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0616

  • Filing Date:

    06/03/2020

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiff and Respondent

NATIONAL PAYMENT SYSTEMS OR L.L.C.

Defendants and Appellants

FOUGNER JON B.

THE LAW OFFICE OF MATTHEW P. MCCUE CORP.

HEIDARPOUR LAW FIRM PLLC

PARONICH LAW P.C.

FABRICANT TERRY

BRODERICK LAW P.C.

HEIDARPOUR ANDREW

Attorney/Law Firm Details

Plaintiff Attorney

WILSON REBECCA L.

Defendant Attorneys

OWENS STEPHEN T.

DAVID HENRY

ZELDIN KIM

 

Court Documents

Proof of Personal Service

2/2/2021: Proof of Personal Service

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NOTICE OF ORDER TO SHOW CAUSE HEARING SET 02/25/2021) OF 01/05/2021

1/5/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NOTICE OF ORDER TO SHOW CAUSE HEARING SET 02/25/2021) OF 01/05/2021

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CO...)

1/7/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CO...)

Order - ORDER [PROPOSED] ORDER RE PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DEFENDANT JON B. FOUGNER'S MOTION FOR ATTORNEY FEES

12/30/2020: Order - ORDER [PROPOSED] ORDER RE PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DEFENDANT JON B. FOUGNER'S MOTION FOR ATTORNEY FEES

Notice - NOTICE DEFENDANTS' EVIDENTIARY OBJECTIONS TO DECLARATION OF KIM KARELIS FILED IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS PURSUANT TO CONTRACT AND CI

12/29/2020: Notice - NOTICE DEFENDANTS' EVIDENTIARY OBJECTIONS TO DECLARATION OF KIM KARELIS FILED IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS PURSUANT TO CONTRACT AND CI

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND ORDER RE MUTUAL EXTENSION OF DEADLINES

11/30/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND ORDER RE MUTUAL EXTENSION OF DEADLINES

Request for Judicial Notice

11/20/2020: Request for Judicial Notice

Objection - OBJECTION TO NEW EVIDENCE BY DEFENDANTS THE LAW OFFICE OF MATTHEW P. MCCUE, PARONICH LAW AND BRODERICK LAW

10/27/2020: Objection - OBJECTION TO NEW EVIDENCE BY DEFENDANTS THE LAW OFFICE OF MATTHEW P. MCCUE, PARONICH LAW AND BRODERICK LAW

Order - ORDER ON SUBMITTED MATTERS HEARD ON 10/29/20

10/30/2020: Order - ORDER ON SUBMITTED MATTERS HEARD ON 10/29/20

Motion re: - MOTION RE: NOTICE OF MOTION AND MOTION BY DEFENDANT BRODERICK LAW, P.C. FOR ORDER REQUIRING OUT OF STATE PLAINTIFF NATIONAL PAYMENT SYSTEMS OR, L.L.C. TO FILE AN UNDERTAKING PURSUANT TO C

10/9/2020: Motion re: - MOTION RE: NOTICE OF MOTION AND MOTION BY DEFENDANT BRODERICK LAW, P.C. FOR ORDER REQUIRING OUT OF STATE PLAINTIFF NATIONAL PAYMENT SYSTEMS OR, L.L.C. TO FILE AN UNDERTAKING PURSUANT TO C

Request for Judicial Notice

10/15/2020: Request for Judicial Notice

Order - ORDER RE: SPECIAL MOTION TO STRIKE BY DEFENDANT TERRY FABRICANT

9/23/2020: Order - ORDER RE: SPECIAL MOTION TO STRIKE BY DEFENDANT TERRY FABRICANT

Declaration - DECLARATION OF HENRY S. DAVID IN SUPPORT OF AMENDED COST BOND MOTION

10/2/2020: Declaration - DECLARATION OF HENRY S. DAVID IN SUPPORT OF AMENDED COST BOND MOTION

Notice of Related Case

10/5/2020: Notice of Related Case

Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

9/23/2020: Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

Request for Judicial Notice

9/16/2020: Request for Judicial Notice

Proof of Service (not Summons and Complaint)

8/10/2020: Proof of Service (not Summons and Complaint)

Answer

7/10/2020: Answer

213 More Documents Available

 

Docket Entries

  • 04/07/2021
  • DocketAppeal - Clerk's Notice of Abandonment of Appeal (NOA: 03/05/21 B311208); Filed by Clerk

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  • 04/02/2021
  • DocketNotice (ABANDONMENT OF APPEAL); Filed by JON B. FOUGNER (Appellant)

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  • 03/22/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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  • 03/16/2021
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by JON B. FOUGNER (Appellant)

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  • 03/12/2021
  • DocketNotice (of Entry of Judgment in favor of Fabricant); Filed by TERRY FABRICANT (Defendant)

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  • 03/08/2021
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Non-Appearance Case Review ((ReProposed judgment-lodged 01/19/2021)) - Held

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  • 03/08/2021
  • DocketMinute Order ( (Non-Appearance Case Review (Re: Proposed judgment-lodged 01/1...)); Filed by Clerk

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  • 03/08/2021
  • DocketJudgment (In Favor of Terry Fabricant); Filed by TERRY FABRICANT (Defendant)

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  • 03/05/2021
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by JON B. FOUGNER (Appellant)

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  • 03/02/2021
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion - Other (Motion for Award of Attorneys? Fees And Costs Pursuant to Contract and Civil Code Section 1717) - Not Held - Taken Off Calendar by Party

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267 More Docket Entries
  • 06/17/2020
  • DocketProof of Personal Service; Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/17/2020
  • DocketProof of Personal Service; Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/05/2020
  • DocketApplication (APPLICATION TO FILE UNDER SEAL); Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/05/2020
  • DocketOrder (Granting Plaintiff's Application to Seal Unredacted Exhibit B to the Complaint); Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/05/2020
  • DocketNotice of Lodging (NOTICE OF LODGING); Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/04/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/03/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/03/2020
  • DocketComplaint; Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/03/2020
  • DocketSummons (on Complaint); Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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  • 06/03/2020
  • DocketCivil Case Cover Sheet; Filed by NATIONAL PAYMENT SYSTEMS OR, L.L.C. (Plaintiff)

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Tentative Rulings

Case Number: 20VECV00616    Hearing Date: January 05, 2021    Dept: T

TENTATIVE RULINGS

NATIONAL PAYMENT SYSTEMS V FABRICANT 20VECV00616

1. DEFENDANTS MCCUE, PARONICH, BRODERICK MOTION FOR ATTORNEY FEES AND COSTS

[TENTATIVE] ORDER: Defendants' Motion for Award of Attorney's Fees and Costs Pursuant to Contract and Civil Code § 1717 is GRANTED. Defendants The Law Office of Matthew P. McCue, Corp., Paronich Law, P.C. and Broderick Law, P.C. are awarded attorneys' fees in the amount of $71,710.00 and costs in the amount of $5,240.70 payable by plaintiff to client trust account of counsel for defendants.

INTRODUCTION

Defendants The Law Office of Matthew P. McCue, Corp., Paronich Law, P.C. and Broderick Law, P.C. move the court for an award of $71,710.00 in attorneys' fees and $5,240.70 in costs pursuant to CCP § 1717, after final adjustments made in reply.

The court previously awarded these Defendants $33,500.00 in attorneys' fees and $903.00 in costs pursuant to CCP § 415.16 after their successful special motion to strike. The current motion for fees excludes entries related to the special motion to strike.

DISCUSSION

Attorneys' fees are properly awarded pursuant to Civil Code section 1717(a), which provides:

In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.

"[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract." Civ. Code § 1717. Plaintiff alleged Defendants breached the settlement agreement containing an attorneys' fee provision; Defendants are the Prevailing parties.

The trial court has broad discretion to determine the amount of a reasonable fee and the award of such fees is governed by equitable principles. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1094-1095.

The first step involves the lodestar figure-a calculation based on the number of hours reasonably expended multiplied by the lawyers hourly rate. "The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided." Id. at p. 1095. In short, after determining the lodestar amount, the court shall then "consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure." Id. at p. 1096 quoting Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77. The factors to be considered included the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success of failure, and other circumstances in the case. Id. at p. 1096.

The court previously determined, and Defendants acknowledge, the reasonable hourly rate for Mr. Owens' time is $400 per hour and $350 per hour for Ms. Ochoa's time. The court finds the reasonable hourly rate for Ms. Garcia's time is $300 per hour. Each of these hourly rates are properly reflected in the billing entries and Defendants' motion.

In opposition, Plaintiff identifies various billing and cost entries that it deems to be unrecoverable as administrative, block billing, vague, duplicative, excessive, or joint defense work. In reply, Defendants conceded the entries identified as duplicative should be removed and recalculated the fee request accordingly. The court does not find Plaintiff's contentions persuasive and finds the fees and costs claimed by Defendants, as augmented in reply, both reasonable and recoverable.

The court's decision is based upon a careful review of the evidence presented, the issues presented in the case, the experience and hourly rate of the attorneys, and the amount charged by attorneys in this court who present similar motions in similar cases. The court's determination of the fees in this case took into consideration "the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." PLCM, supra at p. 1096.

The court did not rely on the declaration of Kim Karelis in coming to its decision. The Court did not find the declaration to be of any assistance in calculating reasonable fees and costs.

IT IS SO ORDERED, COUNSEL FOR DEFENDANTS TO GIVE NOTICE.

2. MOTION BY JON FOUGNER FOR ATTORNEY FEES AND COSTS -

[TENTATIVE] ORDER: Jon B. Fougner’s Motion for Attorneys’ Fees and Costs

Pursuant to Code of Civil Procedure Section 1021.5 is DENIED in its entirety. The Request for Judicial Notice is GRANTED.

1.Introduction

Defendant Jon B. Fougner moves the court for an award of $112,677.20 in attorneys’ fees and $4,034.06 in costs pursuant to CCP § 1021.5. The court entered Plaintiff’s request for dismissal as to Defendant Fougner on September 23, 2020.

2.Discussion

CCP section 1021.5 codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”

Defendant Fougner was a successful party by obtaining a dismissal of the action. However, the necessity and financial burden of Defendant Fougner’s defense are not out of proportion with his individual stake in the action. Any public benefit garnered by Fougner’s defense of the action was entirely coincidental to the attainment of his personal financial goal of obtaining a dismissal. The primary relief sought by Plaintiff against Fougner was compensatory damages.

Fougner is an attorney, representing clients in litigation for compensation, not an activist with a stated political goal. Compare County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 869 (“The file shows that defendants are anti-nuclear and environmental activists concerned with a political goal—‘the termination of the Diablo Canyon facility as a nuclear power plant.’ Since defendants' goal in litigating this suit transcends their personal self-interests, the ‘financial burden’ criterion is met.”) Fougner also contends he could have dropped the First Data/Fabricant II litigation early, thereby demonstrating his placement of public benefit above his own. Compare Ibid. (“If respondents had been interested solely in avoiding pecuniary loss, they could readily have agreed to an injunction. Instead, by vigorously resisting appellants' motion, they indicated that their goals were not merely financial.”) However, Fougner is not a party to First Data/Fabricant II and dismissal of a class action requires court approval. Fed. Rules Civ.Proc., rule 23, 28 U.S.C. The dismissal of the underlying class action is not a foregone conclusion akin to the acceptance of the injunction in Abalone Alliance. Moreover, the financial costs incurred by Fougner, his claimed $112,677.20 in attorneys’ fees, is not disproportionate to the cost of obtaining a dismissal in contested litigation such as this. The court is not persuaded attorneys’ fees are appropriately awarded pursuant to CCP § 1021.5 based upon the facts and circumstances of this action.

IT IS SO ORDERED, COUNSEL FOR PLAINTIFF TO GIVE NOTICE.

Case Number: 20VECV00616    Hearing Date: October 29, 2020    Dept: T

10/29/2020

Tentative rulings:

NPS, etc. v Fabricant, et al. 20VECV006161

1. Motion for bond MOOT:

-Paronich, Broderick, McCue (special motions to strike were granted)

-Heidapour individual and firm (dismissed from case)

2. Motion for fees MOOT:

-Fabricant (settled fees)

3. Special Motions to Strike MOOT:

-Fougner (filed after dismissal)

-Heidapour individual and firm (dismissed since filing)

4. Attorney Fees for having filed special motion to strike before dismissal:

-Heidapour individual and firm (court retains jurisdiction to consider separate motion for fees)

5. CMC - Still needed?

6. Motion re sealing Exh. B - Still needed?

7. Attorney Fees after grant of special motion to strike:

-Paronich, Broderick, McCue

Tentative Order: As prevailing parties in the special motion to strike against plaintiff National Payment Systems, OR, LLC, attorney fees are awarded jointly to defendants The Law Office of Matthew P. McCue, Corp., Paronich Law, P.C. and Broderick Law, P.C. pursuant to CCP section 415.16 in the sum of $33,500 plus $903 in costs.

INTRODUCTION:

The mandatory fee-shifting provision in Code of Civil Procedure § 425.16 (c) provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142; CCP §425.16(c). (Emphasis added.) Reasonableness is not determined solely based on the amount billed. The court must make an assessment as to what is reasonable under the circumstances.

In setting a fee award under CCP § 425.16, courts apply the lodestar approach (i.e., number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work). 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal App 5th 426, 432. The trial court has broad discretion to determine the amount of a reasonable fee, and the award of such fees is governed by equitable principles. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094–1095 (PLCM ).

The first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer's hourly rate. “The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id. at p. 1095.) In short, after determining the lodestar amount, the court shall then “‘consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the . . . award so that it is a reasonable figure.’ ” (Id. at pp. 1095–1096, quoting Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77.) The factors to be considered include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (Id. at p. 1096.)

The court considered the various fee rates based upon similar work provided in this legal community. The court will allow requested $400 per hour for Mr. Owens’ time and $350 per hour for Ms. Ochoa’s time as reasonable hourly rates. However, the court finds that some of the billing reflected charges not directly related to the motion, and duplicative of work between the attorneys. Further, the complexity of the issues in this case did not warrant an order for NPS to reimburse all of the amount requested. Accordingly, the court finds that the amount of time reasonably billed for the work performed as to this special motion to strike and request for fees is 68 hours at $400 per hour for Mr. Owens and 18 hours at $350 per hour for Ms. Ochoa plus $903 in costs.

The court’s decision is based upon a careful review of the evidence presented, the issues presented in the motion, the experience and hourly rate of the attorneys, the amount charged by attorneys in this court who present similar motions and seek fees as prevailing parties in special motions to strike. The court’s determination of the fees in this case took into consideration… “the factors to be considered include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case.”

Finally, the court did not rely on the declaration of Kim Karelis in coming to its decision. The court did not find the declaration to be of any assistance in calculating reasonable fees and costs in this matter.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

Case Number: 20VECV00616    Hearing Date: September 23, 2020    Dept: T

THERE ARE TWO TENTATIVE RULINGS FOR 9/23/2020.

NATIONAL PAYMENT SYSTEMS OR, LLC,

Plaintiff,

vs.

TERRY FABRICANT; et. al.

Defendants.

CASE NO: 20VECV00616

[TENTATIVE] ORDER RE:

SPECIAL MOTION TO STRIKE BY DEFENDANT TERRY FABRICANT

Dept. T

8:30 a.m.

September 23, 2020

[TENTATIVE] ORDER: The Special Motion to Strike is GRANTED. Defendant Terry Fabricant’s Request for Judicial Notice attached to the Motion is GRANTED but not as to the truth of the matters stated in those documents or inadmissible hearsay. Defendant Terry Fabricant’s Request for Judicial Notice attached to the Reply is DENIED. Attorneys fees as prevailing party by noticed motion.

INTRODUCTION:

Defendant Terry Fabricant (“Defendant”) specially moves to strike every cause of action (“COA”) alleged in the Complaint filed by Plaintiff National Payment Systems OR, LLC (“Plaintiff” or “NPS OR.”)

PROCEDURAL ISSUES:

Defendant’s request for judicial notice submitted with the Reply requesting notice of a declaration by Bradley Law filed in another action is improper. “The declaration of an adverse party is not a proper subject for judicial notice.” Big Valley Band of Pomo Indians v. Sup. Ct. (2005) 133 Cal.App.4th 1185, 1192 (declaration was reasonably subject to dispute, because parties could question accuracy of records and searches).

DISCUSSION:

The special motion to strike procedure is a two-step process. The first step is for defendant to show that plaintiff’s claim arises from protected activity. Upon meeting the initial burden, the burden shifts to plaintiff to show a probability of prevailing on the claim. There is no dispute that the claims in the instant action arise from protected activity. The protected activity is the filing of a federal action titled, Louis Floyd and Terry Fabricant v First Data Merchant Services LLC et al (for ease of reference “Fabricant 2”), upon which the instant action alleges breach of the settlement agreement that was entered in a prior federal action titled, Terry Fabricant v United Card Solutions, LLC (for ease of reference “Fabricant 1.”)

As Defendant has met his burden on the first prong, the burden shifts to Plaintiff to show a probability of prevailing on the second prong.

In order to show probability of prevailing on the contract-based claims (COA 1 for breach of settlement agreement and COA 4 for declaratory relief), Plaintiff’s obligation is to present admissible evidence of (a) the settlement agreement, (b) Defendant’s breach, (c) Plaintiff’s performance/excuse and (d) Plaintiff’s damages.

The two fraud-based claims are for fraud in the inducement (COA 2) and negligent misrepresentation (COA 3). It is preliminarily noted that COA 2 for fraud in the inducement makes a demand for damages (Compl. ¿48.) As such, it would appear that the claim is actually for false promise.

The prima facie elements for fraudulent inducement (COA 2) are: defendant made a misrepresentation; defendant knew that the representation was not true; defendant made the representation to persuade plaintiff to agree to the contract; plaintiff reasonably relied on this representation; and plaintiff would not have entered into the contract if it had known that the representation was not true.

The prima facie elements of negligent misrepresentation (COA 3) are: defendant represented that a fact was true; defendant’s representation was not true; although defendant may have honestly believed that the representation was true, defendant had no reasonable grounds for believing the representation was true when made; defendant intended that plaintiff rely on this representation; plaintiff reasonably relied on defendant’s representation; plaintiff was harmed; and plaintiff’s reliance on defendant’s representation was a substantial factor in causing the harm.

The only evidence submitted by Plaintiff is the declaration of its Operations Manager, Brad Law filed on 9/9/2020, and its attached exhibits (i.e.: Settlement Agreement under seal, copies of Fabricant 1 and Fabricant 2.) The declaration and attached exhibits merely present evidence as to entry into the settlement agreement and Mr. Law’s opinion that the filing of Fabricant 2 violates the settlement agreement (showing a chart with comparison of allegations in Fabricant 1 and Fabricant 2.) (Law Decl. ¿¿4-7.)

Plaintiff does not submit any other admissible evidence. Even if Mr. Law’s declaration were considered in its entirety, the declaration alone does not establish that Fabricant 2 is barred by the settlement agreement, makes no attestation as to Plaintiff’s performance or excuse therefrom and no attestation as to Plaintiff’s contract damages. Further, Mr. Law’s declaration fails to present any evidence what representation made by Defendant was “false”, Defendant’s knowledge of the falsity or Defendant’s lack of reasonable grounds for believing the representation was true when made, Plaintiff’s reliance, Plaintiff would not have entered the agreement otherwise, Defendant’s intent to have Plaintiff rely upon the misrepresentation/false promise and Plaintiff’s tort damages. On these evidentiary defects in failing to present admissible evidence to support the prima facie elements of the contract and fraud-based claims, Plaintiff has failed to meet its burden in this motion to show probability of prevailing on the first four COAs.

The fifth COA for Civil Conspiracy is not an independent tort. Without presenting admissible evidence as to the fraud claims, there is insufficient showing of probably prevailing on the conspiracy claim.

It is noted that Plaintiff’s points and authorities in the opposition present legal argument opposing the legal arguments asserted in the motion’s points and authorities. Plaintiff contests Defendant’s arguments regarding litigation privilege; breach of the settlement agreement/falsity of the promise by asserting that Fabricant 1 and Fabricant 2 contain the similar allegations; putative class designation; the claims in the instant action should be raised as a defense to Fabricant 2; the scope of the release in the settlement agreement from Fabricant 1; the time period relevant to the putative class claims; Fabricant’s capacity to sue individually in Fabricant 2 and the standard of proof to show intent under the fraud claims. These arguments in the points and authorities are unsupported by facts, for Plaintiff’s opposition fails to address the burden placed upon Plaintiff to present admissible evidence to support the prima facie elements of the claims. Instead, the opposition equates pleading with proof. This is not a demurrer. The court does not accept the allegations in the complaint as true. The allegations must be supported by evidence. Without evidence from Plaintiff, Plaintiff has failed to meet its burden.

Because Plaintiff did not present sufficient evidence in its opposition to support the prima facie elements of each of the COAs, the arguments as to the affirmative defense of litigation privilege are moot.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

NATIONAL PAYMENT SYSTEMS OR, LLC,

Plaintiff,

vs.

TERRY FABRICANT; et. al.

Defendants.

CASE NO: 20VECV00616

[TENTATIVE] ORDER RE:

SPECIAL MOTION TO STRIKE BY DEFENDANT THE LAW OFFICE OF MATTHEW P. McCUE CORP.

SPECIAL MOTION TO STRIKE BY DEFENDANT PARONICH LAW, PC

SPECIAL MOTION TO STRIKE BY DEFENDANT BRODERICK LAW, PC

Dept. T

8:30 a.m.

September 23, 2020

[TENTATIVE] ORDER:

1. The three Special Motions to Strike are GRANTED. Moving Defendants are dismissed from the complaint without prejudice.

2. Attorneys fees and costs per noticed motion.

3. All three Defendants’ Request for Judicial Notice and Supplemental Request for Judicial Notice are GRANTED as to Exhibits 1 – 7 and 12 – 14 but not as to the truth of the matters stated in those documents or inadmissible hearsay and DENIED as to Exhibits 8 – 11 and DENIED as to the Second Supplemental Request for Judicial Notice Exhibit 15.

4. Plaintiff’s Request for Judicial Notice is DENIED as to all exhibits.

______________________________________________________________

INTRODUCTION

Moving Defendants The Law Office of Matthew P. McCue Corp (“McCue”), Paronich Law, PC (“Paronich”) and Broderick Law, PC (“Broderick”) (collectively “Defendants”) specially move to strike the Complaint filed by Plaintiff National Payments Systems OR (“Plaintiff” or “NPS OR.”)

PROCEDURAL ISSUES

Defendants’ request for judicial notice as to Exhibits 8 – 11 and Plaintiff’s request for judicial notice are denied because both parties’ print-out of the webpages lacks evidentiary foundation showing the following elements: 1) author, 2) date of creation, 3) purpose, 4) reliability, and 5) veracity. Hartwell Corp. v. Sup. Ct. (2002) 27 Cal.4th 256, 279 n. 12.

Defendants’ second supplemental request for judicial notice submitted with the Reply requesting notice of a declaration by Bradley Law filed in another action is improper. “The declaration of an adverse party is not a proper subject for judicial notice.” Big Valley Band of Pomo Indians v. Sup. Ct. (2005) 133 Cal.App.4th 1185, 1192 (declaration was reasonably subject to dispute, because parties could question accuracy of records and searches).

DISCUSSION

The special motion to strike procedure is a two-step process. The first step is for defendant to show that the claim arises from protected activity. Upon meeting the initial burden, the burden shifts to plaintiff to show a probability of prevailing on the claim.

The court finds that defendants have met the first prong, that is, that the claim arises from protected activity. The Complaint alleges that defendants filed two federal actions, one entitled, Louis Floyd and Terry Fabricant v First Data Merchant Services LLC et al (“Fabricant 2”) and another entitled Cooley v First Data Merchants Services, LLC et al (“Cooley 1”) (Compl. ¿¿18-25, 31, 34, 39-40, 46-47, 50-51, 59-60.) The Complaint also alleges that Defendants violated representations made in the Settlement Agreement in Fabricant v. United Card Solutions, LLC, Case No. 2:18-cv-01429 (C.D. Cal. Feb. 21, 2018) (Fabricant 1) when they represented that they did not have any clients/potential clients that had the same claims against Plaintiff in Fabricant 1. (Settlement Agreement ¿22.) Plaintiff asserts that the mere filing of Fabricant 2 and Cooley 1 is not the issue and therefore the claim is not based on protected activity. However, this alleged distinction Plaintiff attempts to make is of no consequence. The fact remains that the alleged misrepresentation and/or agreement made was a result of petitioning activity – the defense of and/or the settling of a lawsuit, Fabricant 1. Cabral v. Martins (2009) 177 Cal.App.4th 471, 482; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266; Comstock v. Aber (2012) 212 Cal.App.4th 931, 944-945. It is axiomatic that the [t]he constitutional right to petition ... includes the basic act of filing litigation.’" (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.) “This action therefore falls squarely within the ambit of the anti-SLAPP statute's "arising from" prong. (§ 425.16, subd. (b)(1).)” Navellier v. Sletten (2002) 29 Cal.4th 82, 90 (Navellier I).

The main issue here is that plaintiff alleges that defendants violated an agreement made as a result of negotiations and/or entry into a settlement of a lawsuit – which is protected activity. The burden shifts to Plaintiff to show a probability of prevailing.

Defendant’s timeline, set forth in their motion and which are established by declaration and judicial notice, give helpful information about the events which unfolded prior to this case being filed:

• September 7, 2018: Settlement Agreement in Fabricant 1 is executed;

• December 26, 2018: Alleged robocall to Blake Cooley, which resulted in the One Connect case (Cooley 1);

• April 24, 2019: Alleged robocall to Louis Floyd, which resulted in the Amended Complaint adding Mr. Floyd as a co-plaintiff in the One Connect case (Cooley 1);

• October 24, 2019: Alleged robocall to Terry Fabricant, which resulted in his joint filing

with Mr. Floyd of the Complaint in the First Data case(Fabricant 2).

As argued by defendants, the evidence establishes that the alleged relevant phone calls were made approximately 4 months after the execution of the Settlement Agreement (robocall to Cooley), 7- 1/2 months after the Settlement Agreement (robocall to Floyd), and almost 14 months after the Settlement Agreement (robocall to Fabricant). Therefore, "at the time of execution of [the Settlement] Agreement," the Broderick Law Firm was not "aware of any clients or potential clients currently represented, or seeking representation by Plaintiffs' Counsel ... who have or may have claims against [Plaintiff]," and could not have been aware of any such clients or potential clients because those later phone calls had not yet been made and therefore no claim or potential claim had arisen based on those calls as of September 7, 2018. Moreover, "at the time of execution of [the Settlement] Agreement," the Broderick Law Firm did not "have any present intention to solicit such potential clients" or anyone else to file suit against Plaintiff (Broderick Decl., ¶ 26.)

Furthermore, the evidence presented by defendants is that at no time did The Law Office of Matthew P. McCue, Corp., Paronich Law, P.C. or Broderick Law, P.C solicit Blake Cooley, Louis Floyd or Terry Fabricant (or anyone else) to pursue any claims against Plaintiff after the execution of the September 7, 2018 Settlement Agreement in Fabricant 1, nor did they have any clients who may have a case against Plaintiff nor did they have the intention at the time of the settlement agreement to solicit such clients. (Attorney declarations.)

In order to show probability of prevailing on the contract-based claims (COA 1 for breach of settlement agreement and COA 4 for declaratory relief) , Plaintiff is required to present evidence of each element of its cause of action. This means plaintiff must show evidence of the agreement, Defendants’ breach of the agreement, Plaintiff’s performance/excuse, and Plaintiff’s damages.

As to the actual allegations, there are two fraud-based claims: fraud in the inducement (COA 2) and negligent misrepresentation (COA 3.) It is preliminarily noted that COA 2 for fraud in the inducement makes a demand for damages (Compl. ¿48.) There is no demand for rescission of the agreement. As such, it would appear that the claim is actually for false promise. In any event, the prima facie elements for fraudulent inducement are: defendants made a misrepresentation; at the time of the misrepresentation, defendants knew that the representation was not true; defendants made the representation to persuade plaintiff to agree to the contract; plaintiff reasonably relied on this representation; and plaintiff would not have entered into the contract if it had known that the representation was not true. The prima facie elements of negligent misrepresentation are: defendant represented that a fact was true; that defendant’s representation was not true; that although defendant may have honestly believed that the representation was true, defendant had no reasonable grounds for believing the representation was true when made; defendant intended that plaintiff rely on this representation; plaintiff reasonably relied on defendant’s representation; plaintiff was harmed; and plaintiff’s reliance on defendant’s representation was a substantial factor in causing the harm.

Preliminarily, as to the two contract-based claims (COA 1 for breach of settlement agreement and COA 4 for declaratory relief), the Court notes that it is unclear from the terms of the Settlement Agreement what if any consideration Plaintiff provided to Defendants in exchange for Defendants’ warranty that they had no clients/potential clients with the same claims against Plaintiff. The Settlement Agreement shows Plaintiff’s obligation to pay Fabricant monies and release any claims against Fabricant but no obligation or forbearance is seen as to Defendants. There appears to an issue as to whether there was an enforceable contract between Plaintiff and Defendants. Plaintiff asserts that Defendants made representations regarding Defendants’ clients/potential clients. (Settlement Agreement ¿22.) The contract appears to be unilateral in which case is would be unenforceable. Along with this defect, there is no admissible evidence, as presented in the declarations of Brad Law and Rebecca Wilson, to show that Plaintiff performed or was excused from performing an obligation or a forbearance since the agreement lacks any obligation or forbearance imbued upon Plaintiff as related to Defendants. Further, the declarations of Mr. Law and Ms. Wilson make no reference to any contract damages suffered by Plaintiff. The two declarations focus on the alleged provision in the Settlement Agreement and Defendants’ alleged breach by “having clients/potential clients with the same claims at the time the parties entered the Settlement Agreement.” Moreover, plaintiff presented no evidence that defendants did in fact have clients with the same claims at the time of the Settlement Agreement. There is no admissible evidence that the claims made in Fabricant 2 and Cooley 1 are the same claims as Fabricant 1. Without admissible evidence of an enforceable contract, breach, performance or excuse and damages, Plaintiff fails to meet its burden to show probability of prevailing on the merits of the two contract-based claims.

As to the fraud-based claims, the declaration of Mr. Law, he only attests to the entry into the settlement agreement and his opinion that the agreement was breached. (Law Decl. ¿¿4-7.) Mr. Law’s declaration makes no attestation as to causation of damages from misrepresentations causing Plaintiff’s fraud damages. Further, Mr. Law’s declaration fails to present any evidence as to Defendants’ knowledge of the falsity or Defendants’ lack of reasonable grounds for believing the representation was true when made, Plaintiff’s reliance, Plaintiff would not have entered the agreement otherwise, Defendants’ intent to have Plaintiff rely upon the misrepresentation/false promise or Plaintiff’s tort damages.

Attached to Ms. Wilson’s declaration are lists of numerous cases filed by Defendants involving Telephone Consumer Protection Act (“TCPA”) violations. However, the relevance of all the other cases, except for Fabricant 2 and Cooley 1, is questionable because the other cases are not shown to be filed against Plaintiff. The only two cases cited by Ms. Wilson involving Plaintiff are Fabricant 2 and Cooley 1. Relevance is an important issue because the express representation and/or provision in the Settlement Agreement claims to have been misrepresented was a representation that no other TCPA cases were being contemplated against “United” (aka Plaintiff.) Ms. Wilson’s declaration establish that any of the cases (other than Fabricant 2 and Cooley 1) are against Plaintiff. Further, as to Fabricant 2 and Cooley 1, the evidence submitted by Defendants shows that both cases involve violations of the TCPA occurring after the September 2018 entry into the Settlement Agreement. Plaintiff has not established any facts to the contrary. The fact that the alleged TCPA violations occurred after September 2018 is significant since the alleged representation/provision in the Settlement Agreement attempts to limit the scope of the representation/provision to “the time of execution of this Agreement.” With this discrepancy, plaintiff has failed to show the probability of prevailing on misrepresentation and/or falsity of the representation. Plaintiff does not present evidence to contradict the timeline argued by the defendants.

On these evidentiary defects in failing to present admissible evidence to support the prima facie elements of the contract and fraud-based claims, Plaintiff has failed to meet its burden to show probability of prevailing on the first four COAs.

The fifth COA for Civil Conspiracy is not an independent tort. Without presenting admissible evidence as to the fraud claims, there is insufficient showing of probably prevailing on the conspiracy claim.

Because Plaintiff failed to meet its evidentiary burden of proof as to the prima facie elements of the COAs, the arguments regarding the affirmative defenses of litigation privilege and of the alleged violation of the California Rules of Professional Conduct are peripheral to the court’s decision. It is noted, however, that there are substantial issues concerning the right of attorneys to represent clients of their choice and for clients to hire attorneys of their choice, and the attempted restrictions on their rights to do so implicate certain of the Rules of Professional Conduct, and public policy considerations. These issues also affect whether that portion of the agreement, is enforceable. There is also a significant body of law, as cited by defendants in their reply, which supports the argument that the plaintiff’s claims are barred by the litigation privilege.

Also, the court notes that Plaintiff has conflated “proof” with “pleading.” This is not a demurrer. The issue for the court is whether Plaintiff has established the probability of prevailing, not whether the allegations are sufficient to state a cause of action.

On the issue of attorney fees, as defendants are the prevailing party, attorney fees will be considered per noticed motion.

Finally, defendants argue that the settlement agreement does not include defendants Broderick Law P.C. or Paronich Law, PC as parties or signatories. The court expresses no opinion at this stage as to whether the named defendants are or are not the same, or are or are not successors, to the attorneys named in the settlement agreement. Regardless of phrasing, the court makes no factual findings in this order but merely indicates whether there is sufficient evidence supporting the plaintiff’s claims to find the probability of prevailing on the merits.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

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