The Mcmillan Law Firm, Apc vs. Lloyd G. Copenbarger

Opposition

Cal. Super. - 4th Dist.April 25, 2016

© 0 J O N Un BA WwW ND = NN N N N N N N N N m e e m e m e m e m e m p m e d 0 NN O N Ln BA W N = O O N N N R E W I N D = O Scott A. McMillan, SBN 212506 The McMillan Law Firm, APC 4670 Nebo Drive, Suite 200 La Mesa, California 91941-5230 (619) 464-1500 x 14 Fax: (619) 828-7399 Attorneys for Plaintiffs The McMillan Law Firm, APC and Scott McMillan ELECTRONICALLY FILED Superior Court of California, County of Orange 1017/2016 at 02:52:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE (CENTRAL JUSTICE CENTER) THE McMILLAN LAW FIRM, APC and SCOTT A. McMILLAN, Plaintiffs, LLOYD G. COPENBARGER, LAURA M. COPENBARGER, CABNELL, LLC, and DOES I-XX, inclusive, Defendants. oe NO. 30-2016-0848533-CU-NP- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT [Concurrently filed with Plaintiffs’ Opposition to Defendants’ Demurrer] Date: October 28, 2016 Time: 1:30 pm Dept.: C11 Judge: The Hon. Andrew Banks Complaint Filed: April 25, 2016. TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Plaintiffs The McMillan Law Firm, APC and Scott A. McMillan (“Plaintiffs”), request respectfully submit the following opposition to Lloyd G. Copenbarger and Laura M. Copenbarger (“Defendants”) Motion to Strike Portions of Plaintiffs’ Complaint. © 0 J O N Un BA WwW ND = NN N N N N N N N N m e e m e m e m e m e m p m e d c o NN O N Ln BA W N = O OO N N N R E W I N D = O I. INTRODUCTION Defendants Lloyd G. Copenbarger and Laura Copenbarger (“Defendants”) filed a motion to strike portions of Plaintiffs’ Complaint. Specifically, Defendants seek to strike the following portions of Plaintiffs’ Complaint for malicious prosecution: The entirety of Paragraph 13(b) stating: “During the pendency of the underlying case i.e. Diana J. Johnson v. Lloyd Copenbarger, etc., et al, Riverside Superior Court Case Number RIC536500, the attorney of LLOYD G. COPENBARGER, and CABNELL, LLC, Paul Copenbarger, in the presence of these Defendants made untrue claims of unprofessional conduct against Plaintiff Scott A. McMillan and Evan A. Kalooky. Despite LLOYD G. COPENBARGER's and LAURA COPENBARGER's ability to challenge that behavior, LLOYD G. COPENBARGER, LAURA COPENBARGER, and CABNELL, LLC did nothing to curtail the hostile and improper conduct, and hereby ratified that behavior.” From Paragraph 23: “in an amount no greater than $ 10,000,000.” II. STATEMENT OF FACTS Plaintiffs herein represented Plaintiff Diana Johnson in Diana J. Johnson v. Lloyd G. Copenbarger, etc., et al., Riverside Superior Court Case Number RIC 536500. [McMillan Decl. 2.] The case was heard by a jury at trial and resulted in a judgment which declared that there was no prevailing party under Code of Civil Procedure section 1032(a)(4). [Exhibit B, Section III, p.10 line 9-10.] After unsuccessfully appealing the judgment, Defendants herein brought a SLAPP suit against Plaintiffs for malicious prosecution, in Lloyd G. Copenbarger, et al, v. Diana J. Johnson, et al., Riverside Superior Court Case No. RIC 1313995. [McMillan Decl. q 7-8.] This is the case underlying the present malicious prosecution case. In that case, Plaintiffs herein filed a Motion to Strike under Code of Civil Procedure section 425.16 (“Anti-SLAPP”) in that case, which was granted. [McMillan Decl. 9-10.] In granting the Ant-SLAPP Motion to Strike, the court stated, “The plaintiff's PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 2016-00848533 PORTIONS OF PLAINTIFF’S COMPLAINT 2 © 0 J O N Un BA WwW ND = NN N N N N N N N N m e e m e m e m e m e m p m e d c o NN O N Ln BA W N = O OO N N N R E W I N D = O opposition fails to demonstrate the probability of prevailing on two of the three necessary elements for malicious prosecution, that is, lack of probable cause and a malicious element. And I so find that they have not shown a lack of probable cause or the malicious elements.” [McMillan Decl. | 10, Exhibit D, 2:2-6]. After Plaintiffs spent extensive amounts of time and money combating the SLAPP suit and prevailed on the Anti-SLAPP, Plaintiffs brought this suit against Defendants April 25, 2016. [McMillan Decl. 11.] Plaintiffs filed this case because of the fact that Defendants were well aware that the suit brought in Lloyd G. Copenbarger, et al, v. Diana J. Johnson, et al. was without merit. Plaintiffs pursued the suit regardless of that fact because of their ill will towards Plaintiff. In the present case, Defendants propounded discovery on Plaintiff Scott McMillan (“McMillan”) in the form of special interrogatories. [McMillan Decl. q11.] Plaintiff McMillan responded on September 27, 2016. [Id.] Within the discovery responses, Plaintiff McMillan highlighted all of the arguments put forth in the Anti-SLAPP motion. [/d.] III. PROCEDURAL HISTORY Plaintiffs filed the present case for malicious prosecution on April 25, 2016. [McMillan Decl. 11.] Plaintiffs received discovery requests, including special interrogatories and requests for production of documents. Plaintiffs responded to all discovery, outlining the arguments that were present in the Anti-SLAPP motion, specifically that there was not a lack of probable cause or malice in the filing of Diana J. Johnson v. Lloyd G. Copenbarger, etc., et al. and pointing to the litigation record as evidence. After receiving responses from Plaintiffs, Defendants filed the present motion to strike and demurrer of the Complaint on July 13, 2016. [McMillan Decl. q 13.] IV. LEGAL STANDARD The law disfavors motions to strike and construes the pleadings “liberally ... with a view to substantial justice.” (Code Civ. Proc. § 452.) In ruling on a motion to PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 2016-00848533 PORTIONS OF PLAINTIFF’S COMPLAINT 3 © 0 J O N Un BA WwW ND = NN N N N N N N N N m e e m e m e m e m e m p m e d c o NN O N Ln BA W N = O OO N N N R E W I N D = O strike, the allegations in the complaint are considered in context and presumed to be true. When ruling on a motion to strike, judges read allegations of a pleading as a whole, all the parts in their context, and assume the truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Furthermore, the grounds for a motion to strike shall appear only on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc. § 437 (a).) IV. ARGUMENT A. Paragraph 13(b) of the Complaint makes factual allegations about the behavior of Defendants’ agent which may be imputed on Defendants. Paragraph 13(b) of the Complaint states: During the pendency of the underlying case i.e., Diana J. Johnson v. Lloyd G. Copenbar en etc., et al., Riverside Superior Court Case Nitiber RIC536500, the attorney ‘of LLOYD G. COPENBARGER, LAURA COPENBARGER, and CABNELL, LLC, Paul Copenbarger, in the presence of these Defendants made untrue claims of unprofessional conduct against Plaintiff Scott A. McMillan and Evan A. Kalooky. Despite LLOYD G. COPENBARGER’s and LAURA COPENBARGER'’s ability to challenge that behavior, LLOYD G. COPENBARGER, LAURA COPENBARGER, and CABNELL, LL.C did nothing to curtail the hostile and improper conduct, and thereby ratified that behavior. Matters of trial strategy can be imputed on to a client with a finding that the client was involved in making litigation decisions. (Brinkley v. Appleby (1969) 276 Cal.App.2d 244, 247.) Plaintiff believes and alleges that Defendants were very much involved in making litigation decisions. [McMillan Decl. {12.] Mr. Copenbarger is an attorney and as a sophisticated client with the ability to practice law himself, would have taken a larger role in assuring that his goals were met in the litigation. [1d.] Defendants attorney in the underlying case, Paul Copenbarger, served as Defendants’ agent, (Link v. Wabash Railroad Co. (1962) 370 U.S. 626), and made disparaging remarks about Plaintiff Scott McMillan. Defendants laughed in unison with Paul Copenbarger and did nothing to stop their agent from behaving in such a manner. [McMillan Decl. {{4.] It was after this incident that Defendants pursued the SLAPP suit against Plaintiffs, basing their case on personal attacks of Plaintiff Scott PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 2016-00848533 PORTIONS OF PLAINTIFF’S COMPLAINT 4 © 0 J O N Un BA WwW ND = NN N N N N N N N N m e e m e m e m e m e m p m e d 0 NN O N Ln BA W N = O O N N N R E W I N D = O McMillan and out of anger towards his trial strategy and gestures during trial. [McMillan Decl. { 8.] The personal attacks on Plaintiff Scott McMillan by Defendants’ agent, suggest that their subjective intent in perusing the baseless underlying suit may have been to exact revenge or cause personal embarrassment to Plaintiff Scott McMillan. (Daniels v. Robbins, (2010) 182 Cal.App.4th 204, 225.) B. Plaintiffs agree to strike the amount of punitive damages claimed alleged in the Compliant. Plaintiffs agree that the amount of punitive damages shall not be stated in the Complaint under Civil Code section 3295(e). Plaintiffs agree to strike the portion of Paragraph 23 which states, “in an amount no greater than $ 10,000,000.” V. CONCLUSION For the foregoing reasons, Plaintiffs The McMillan Law Firm and Scott A. McMillan respectfully request this Court deny Defendants’ Motion to Strike Portions of Plaintiffs’ Complaint. To the extent the Court deems any of the allegations fail to satisfy pleadings standards, Plaintiffs requests leave to amend. Respectfully submitted, The McMillan Law Firm, APC DATED: October 17, 2016 /s/ Scott A. McMillan Scott A. McMillan Attorney for Plaintiffs The McMillan Law Firm, APC and Scott A. McMillan PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 2016-00848533 PORTIONS OF PLAINTIFF’S COMPLAINT