Karnazes v. Ares
198 Cal. Rptr. 3d 155
Cal. Ct. App.2016Background
- Karnazes invested funds from her home equity line with Tyler Ares; she later alleged those funds were mismanaged and lost, increasing her HELOC debt.
- Ashley Posner (respondent), an attorney, was retained by Ares in October 2008; between Oct–Dec 2008 Posner exchanged emails with Karnazes indicating he represented Ares and that communications were in anticipation of litigation.
- Karnazes sued Ares, his mother, Posner, and others in 2010 (FAC filed Dec 5, 2011) alleging causes including fraud and fraudulent concealment against Posner (Causes 18–22).
- After venue was transferred to Los Angeles County, Posner filed an anti‑SLAPP motion (Aug 13, 2012) arguing his communications were protected petition/speech (and privileged) and that Karnazes had no probability of prevailing.
- The trial court granted the anti‑SLAPP motion, finding the communications were made in anticipation of litigation and Karnazes presented no admissible evidence creating a probability of prevailing; Karnazes appealed.
- The Court of Appeal affirmed, holding Posner’s motion was timely after venue transfer, the communications were protected, Karnazes failed to show a probability of success, the commercial‑speech exception (§425.17(c)) did not apply, and Karnazes’ procedural complaints lacked merit.
Issues
| Issue | Karnazes' Argument | Posner's Argument | Held |
|---|---|---|---|
| Timeliness of anti‑SLAPP motion | Posner was served 1/25/12; motion filed 8/13/12 was untimely | Venue transfer restarted responsive deadlines; motion filed within the receiving court’s period | Motion timely: filing within 30 days after transfer notice satisfied rules (motion filed Aug 13) |
| Protected activity threshold under §425.16 | Communications were deceptive and not protected | Emails were made in anticipation of litigation and thus protected petition/speech | Communications were protected (prelitigation/settlement communications) |
| Probability of prevailing on merits | Karnazes alleged misrepresentations and reliance; court should deny motion | Karnazes offered no admissible evidence; pleadings are not evidence | Karnazes failed to show a probability of prevailing; anti‑SLAPP granted |
| Applicability of commercial‑speech exception (§425.17(c)) | Posner is primarily engaged in selling services (legal services); exception applies | Statements were prelitigation legal communications, not commercial marketing to buyers | Exception inapplicable; attorney’s prelitigation communications not covered by §425.17(c) |
Key Cases Cited
- Nygard, Inc. v. Uusi‑Kerttula, 159 Cal.App.4th 1027 (2008) (two‑step anti‑SLAPP analysis: threshold protected activity then plaintiff’s probability of prevailing)
- Navellier v. Sletten, 29 Cal.4th 82 (2002) (only claims arising from protected activity and lacking minimal merit may be stricken)
- South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal.App.4th 634 (2011) (venue transfer triggers receiving court’s deadline to respond; anti‑SLAPP timing starts from transfer notice)
- Hall v. Time Warner, Inc., 153 Cal.App.4th 1337 (2007) (clerk must schedule anti‑SLAPP hearing within 30 days if docket permits; failure to schedule is not a basis to deny motion)
- Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal.App.4th 777 (1996) (communications preparatory to litigation are protected activity under anti‑SLAPP)
- Flores v. Emerich & Fike, 416 F.Supp.2d 885 (E.D. Cal. 2006) (commercial‑speech exception did not apply to attorneys whose statements were not marketing to customers)
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (distinguishes protected acts from claims where the plaintiff may show likely success on fraud/malpractice claims)