Lunada Biomedical v. Nunez
178 Cal. Rptr. 3d 784
Cal. Ct. App.2014Background
- Lunada Biomedical served a CLRA damages notice to Amberen claims via Newport and Wasserman.
- Nunez and the law firms filed a declaratory relief action asking if Amberen advertising violated the CLRA.
- Nunez and Newport/Wasserman moved to strike under CCP 425.16 (anti-SLAPP); trial court granted.
- Plaintiff submitted scientific evidence supporting advertising claims; defendants challenged it as intent to litigate.
- Court held the declaratory relief action arose from protected CLRA notice/settlement communications and denied relief against the firm defendants; litigation privilege does not bar the claim; appellate attorney fees may be awarded to prevailing anti-SLAPP defendants; remanded for fees assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the anti-SLAPP statute cover the declaratory relief claim? | Nunez; claim arises from CLRA notice, not protected activity. | Claim arises from protected CLRA notice and settlement discussions. | Yes; declaratory relief arises from protected activity and is subject to anti-SLAPP. |
| Does Civil Code 47(litigation privilege) bar the declaratory relief claim? | Privilege should preclude the declaratory relief. | Privilege bars only tort claims; declaratory relief is different. | No; litigation privilege does not bar this declaratory relief. |
| Is there an actual controversy against law firm defendants for declaratory relief? | CLRA notice created controversy with firms and plaintiff. | No actual controversy; firms are not CLRA consumers. | No; no actual controversy against law firm defendants; relief against them denied. |
| Are attorney fees recoverable on appeal and how much? | Fees should be limited or denied. | Prevailing party entitled to appellate fees; lodestar framework applicable. | Prevailing defendants may recover appellate fees; remand to determine reasonable amount. |
Key Cases Cited
- Filarsky v. Superior Court, 28 Cal.4th 419 (Cal. 2002) (policy considerations for preemptive declaratory relief actions under a statute with attorney-fee provisions)
- CKE Restaurants, Inc. v. Moore, 159 Cal.App.4th 262 (Cal. App. 2008) (PLaintiff’s declaratory relief may arise from protected activity when protected acts precede the action)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (actual controversy requirement for declaratory relief; anti-SLAPP scope)
- Gotterba v. Travolta, 228 Cal.App.4th 35 (Cal. App. 2014) (prelitigation letters or threats may be evidence of controversy but not determinative; protected activity can lurk behind a dispute)
- Copenbarger v. Morris Cerullo World Evangelism, 215 Cal.App.4th 1237 (Cal. App. 2013) (distinguishes background protected activity from basis of action; CLRA notice created controversy here)