Kerry L. Sorensen vs. Thomas A. Gardner

Reply to Motion

Cal. Super. - 4th Dist.May 19, 2017

r d BO g k di R b RY TR S S e pe ed a E pl e f pl ed S T U , PR a e 00 .1 md ON Ch Ba OR L TD e t ED EN D OB el EN R T E Ge h e © © ww 9 aN W A W N Stefanie T. Cover (SBN 152502) COVERLAW, PC 901 Calle Amanecer, Suite 160 Post Office Box 73488 : San Clemente, California 92673 Telephone: (877) 214-4935 Facsimile: (888) 559-0901 Email: Stefanie@coverlaw.com Attorney for Defendant Stephen A. Madoni ELECTRONICALLY FILED Superior Court of California, County of Orange 09/06/2017 at 03:02:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE. CENTRAL JUSTICE CENTER KERRY L. SORENSEN, Plaintiffs, VS. THOMAS GARDNER, individually and as claimed Trustee of The McHugh Family Trust; CHARLES McHUGH, STEPHEN A. MADONI, and DOES 1 to 20, ~ Defendants. S e r ” “ a ” “ r t nr v a ’ “a m “ e e t su “ a w e w aw “s ew er “s en “s an e “a ap “e we “ e a ” “ w e “a we CASE NO: 30-2017-00921263-CU-BC-CJC Assigned Judge: Hon. Ronald. L. Bauer Assigned Dept: CX-103 DEFENDANT STEPHEN MADONTI’S REPLY BRIEF IN SUPPORT OF THE SPECIAL ANTI-SLAPP MOTION TO STRIKE PLAINTIFF’S COMPLAINT AS TO DEFENDANT STEPHEN A. MADONI PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 DATE: TIME: DEPT: September 11, 2017 9:00 a.m. CX-103 ANTI-SLAPP SPECIAL MOTION TO STRIKE c o J SN Wn Na N Ww N o — oO \ O 0 ~J AN wi HS Ww BN —t e k j = O 0 3 O N Un B W DEFENDANT STEPHEN MADONI’S REPLY BRIEF IN SUPPORT OF THE SPECIAL ANTI-SLAPP MOTION TO STRIKE PLAINTIFF'S COMPLAINT AS TO DEFENDANT STEPHEN A. MADONI PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 I. SUMMARY OF REPLY Defendant Stephen Madoni (“Mr. Madoni”), through counsel, submits this reply brief in support of the foregoing anti-SLAPP special motion to strike Plaintiff Kerry Sorensen’s (“Sorensen”) fourth cause of action against him for intentional interference with contract. It appears, once again, that Sorensen’s main attempt in opposing this anti-SLAPP motion is to obfuscate the situation and attempt to draw the Court’s attention away from the core set of facts ‘demonstrating that all of Sorensen’s allegations aimed at attorney Stephen Madoni arise out of his role as an attorney, and therefore constitute protected speech under the wealth of case law cited in Mr. Madoni’s moving papers. Rather than attempt to actually oppose the true facts of the situation, or even provide a cogent argument that the Cott can follow, Sorensen instead engages in presenting the Court with multiple alleged pages of quotes demonstrating “misrepresentations” in the record by Mr. Madoni, which is patently untrue. The true facts are that this is now the second lawsuit by Kerry Sorensen alleging this same cause of action against Mr. Madoni. Kerry Sorensen’s allegations are the Shoe, the same set of core facts are identical, thie analysis is identical, and the outcome on this anti-SLAPP motion should be the same. (See Madoni Request for Judicial Notice filed concurrently with the Anti-SLAPP Motion.) Sorchsen’s first lawsuit for intentional interference against Mr. Madoni alleged that Mr. Madoni stole Sorensen’s client, Paul Leone. This case, Sorensen’s second lawsuit for the same cause of action against Mr. Madoni, alleges that Mr. Madoni stole away a trust that was Sorensen’s client (McHugh Family Trust), all of which parties were bound up in the same litigation. In short, Sorensen’s opposition does nothing more than attempt to mischaracterize the arguments and law supporting the anti-SLAPP motion and truly does nothing more than attempt to preserve his reputation rather than actually oppose the merits of the anti-SLAPP motion. The simple fact, which Sorensen bizarrely attempts to refute, is that the identical cause of action Sorensen alleged =P ANTI-SLAPP SPECIAL MOTION TO STRIKE In d B O N OR N N N N R R e m ks em m e m em em em em S © N A Un o h W W against Mr. Madoni in Sorensen v. Leone, et. al., Orange County Superior Court Case Number 30- 2016-00860063 was, in fact, dismissed by Department C-33 of this Court on November 3, 2016 as a result of Mr. Madoni’s successful anti-SLAPP motion. Sorensen’s claims against Mr. Madoni should meet the same exact fate in this case because the factual core of his case is exactly the same. Consequently, as set forth in this Reply Brief, and as more fully outlined in the moving papers, the Court is urged to grant this motion in its entirety. II. BRIEF RESTATEMENT OF THE RELEVANT PROCEDURAL HISTORY Since Shrensens opposition is largely focused on taking issue with extraneous and unimportant details rather than focusing on whether his claim against Mr. Madoni is subject to the anti-SLAPP statute, it bears briefly outlining the relevant facts that prove that Sorensen’s claims should be stricken. Despite Sorensen’s Grins protest, the core facts of Sorensen’s claim against Mr. Madoni are that Mr. Sorensen alleges that he became attorney of record for William McHugh in July 2011 in In re Marriage of McHugh, OCSC Case No. 09D0Q08768 (hereafter the “McHugh Matter”) and that after William McHugh’s death, he became James Shipp’s attorney as the successor trustee of the McHugh Fatily Trust. (Complaint, § 10.) Plaintiff alleges that at some future point, Thomas Gardner (“Mr. Gardner”) because the successor trustee of the McHugh Family Trust and then subsequently breached the agreement to pay fees to Mr. Sorensen for alleged services rendered. (Complaint 112) Sorensen also alleges that Mr. Madoni intentionally interfered with his relationship with the McHugh Family Trust by allegedly asta with settling the McHugh Matter after the beneficiaries of the McHugh Family Trust removed James Shipp, Sorensen’s client, and the new trustee, Thomas Gardner, allegedly did not pay the Trust’s bill owed to Sorensen. What is more telling, which Sorensen completely ignores, is that Sorensen’s first attempt to bring a claim for interference against Mr. Madoni was stricken in violation of the anti-SLAPP statute. As outlined in Request for Judicial Notice, the true facts are that Sorensen filed a first complaint (30- 2016-00860063) against Mr. Madoni for intentional interference to allege “client stealing” on June 27, 2016. Those claims against Mr. Madoni were dismissed on November 3, 2016 following a successful anti-SLAPP motion. Judgment was entered against Mr. Sorensen including an award of attorney’s fees -3- ANTI-SLAPP SPECIAL MOTION TO STRIKE om es t Ci g TI RE BR . BO a N E sO IR Tr BD ek ed gn ke al ny SE nl e e te pe Yt : 00 © =I On Un d U NI es E D A E0 0 ml a L T A T U E RO ee EI oe S A N T a y T e ND ‘against Sorensen because of the granted SLAPP motion. And now Sorensen has come back a year later to file a second intentional interference claim, but this having changed the names and a few facts to allege that Mr. Madoni conspired with the other parties in the McHugh Matter to settle the case and lure the McHugh Family Trust away as his client. Even if the Court were to assume that Sorensen’s narrative is accurate, it still brings his claim against Mr. Madoni within the meaning of the anti-SLAPP statute because everything Mr. Madoni is alleged to have done occurred and took place within the context of a pending lawsuit. Sorensen and his complaint openly admit this. [LIE REQUEST FOR JUDICIAL NOTICE REGARDING THE JUNE 24, 2016 Although having very little to do with underlying basis for this anti-SLAPP motion, Sorensen has taken issue with Mr. Madoni’s declaration regarding the results of a hearing on June 24, 2016 in the McHugh Matter wherein Mr. Madoni was successful in obtaining an order substituting the parties as trustees (removing James Shipp as the named party in interest and having Thomas Gardner named as the new party in interest) and defeating Sorensen’s specious motion to disqualify Mr. Madoni. Sorensen takes great pains to demonstrate to this Court that the moving papers make a false statement about his actions relating to the substitution of parties and his attempt to disqualify Mr. Madoni as counsel. Sorensen even attaches a copy of the reporter’s transcript from that hearing to attempt to prove his point. The problem, however, is that Sorensen is completely wrong about the Court’s rulings and findings as he apparently did not sonst the Court’s tentative ruling. In Sorensen’s reporter’s transcript, the Court (Hon. Deborah Servino, Dept. C22) indicated that her tentative rulings would be | the final rulings on both motions. Judge Servino’s tentative ruling clearly states: “When presented with a MC-050 form to remedy the situation, attorney Sorensen should have executed... His refusal to do so was unreasonable. ..Since then, however, the Declaration of Paul Leone has made it clear that as of 4/12/2016, attorney Sorensen was not his attorney of record as Plaintiff, Claimant, and Cross- Complainant.” Sorensen’s reference to the Reporter’s Transcript even referenced some of this language, which begs the question why Sorensen thought it was important to correct this issue. The i ANTI-SLAPP SPECIAL MOTION TO STRIKE n k N O R D O R RN ND RN R N Re em em km em em em em em ea : TI O N B R A W N Rm © OV N O N DA W N = O O N O N th BA W N [3 °] oo most obvious explanation is that Sorensen continues to attempt to obfuscate and draw attention away from the fact that he has no argument or defense to this motion. Iv. MR. MADONI’S MOVING PAPERS DEMONSTRATE THAT BOTH PRONGS OF A SLAPP ANALYSIS HAVE BEEN SATISFIED AND SORENSEN HAS FAILED TO REFUTE THESE ARGUMENTS SUPPORTING THE GRANTING OF THIS MOTION The anti-SLAPP statute sets forth a two-step process fot determining whether an action is a strategic lawsuit against public participation. Britts v. Superior Court, (2006) 145 Cal.App.4th 1112, 1121 52 Cal.Rptr.3d 185. First, the court decides whether Plaintiffs” complaint has made a threshold showing that the challenged cause of action is one arising from protected activity. /d. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. Id. The only thing that the defendant needs to show to invoke the protection of the § 425.16 is that plaintiff’s lawsuit “arises from” defendant’s exercise of free speech or petition rights as defined by § 425.16(e). Equilon Enters., LLC v. Consumer Cause, Inc., (2002) 29 Cal.4th 53, 61, 124 Cal.Rptr.2d 507, 513. Although Sorensen has attempted to take issue with the citation to Rand Resrouces, LLC v. City of Carson, (2016) 247 Cal. App.4™ 1080, 203 Cal.Rptr.3d 46, here again, Sorensen misses the mark. The main thrust of the Rand decision is that the courts must assess “the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.’ If the core injury-producing conduct upon which the plaintiffs claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute.” /d. Here, as outlined in detail in the moving papers, the “principal thrust” and the alleged “injury producing conduct” Sorensen alleges all arose out of and related litigation-related activities, just as they did in Sorensen’s first lawsuit against Mr. Madoni. 1/ /1/ I -5- ANTI-SLAPP SPECIAL MOTION TO STRIKE O e Nu aN B W N m o o ~1 AN Wn ~~ Ww N o = S O o o ~ AN Wn H O W N Y = O V. SORENSEN DOES NOT (BECAUSE HE CANNOT) REFUTE THAT THE GRAVAMEN OF HIS CLAIM REMAINS “CLIENT STEALING” WITHIN THE INTENTIONAL INTERFERENCE CONTEXT As outlined in the moving papers, which Sorensen ignores, is that the finding in Briggs confirmed that statements “in connection with” civil litigation covered by the anti-SLAPP statute. 1d., at 1123. Moreover, a statement is in connection with litigation if it “relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” Neville Chudacoff, (2008) 160 Cal. App.4™ 12551266. 73 Cal. Rptr.3d 383. 391 (emphasis added); Seltzer v. Bois (2010) 182 Cal. App.4™ 953, 962, 106 Cal .Rptr.3d 290, 297. This even extends to conduct on behalf of others in that the party filing an anti-SLAPP motion is not required to demonstrate that its statements were made on its own behalf. Briggs, 19 Cal 4" 1116; Predi-Wave Corp. v. Simpson, Thacher, & Bartlett, LLP, (2009) 179 Cal. App.4™ 1204, 1220- 1221, 102 Cal.Rptr.3d 245, 257. The statute even applies to statements to persons who are not Dikehs or potential parties to litigation, provided such statements are made “in connection with” pending or anticipated litigation. Summerfield v. Randolph, (2011) 201 Cal. App.4™ 127, 136, 133 Cal Rptr.3d 487, 494. This includes pre-litigation statements. CKE Restaurants, Inc. v. Moore, (2008) 159 Cal. App.4™ 262,271, 70 Cal.Rptr.3d 921, 928; Digerati Holdings, LLC v. Young Money Entertainment, LLC, (2011) 194 Cal. App.4™ 873, 887, 123 Cal Rptr.3d 736, 746-747 (anti-SLAPP held to oh to statements edie in anticipation of state court litigation); Aber v. Comstock, (2012) 212 Cal. App.4™ 931, 944-945, 151 Cal .Rptr.3d 589, 600; Action Apt. Ass'n, Inc. v. City of Santa Monica, (2007) 41 Cal .4™ 1232, 1251, 63 Cal Rptr.3d 398, 414 (statements relating to litigation that is || contemplated in good faith and under serious consideration are covered by the anti-SLAPP statute). Notwithstanding Sorensen’s feeble attempt to oppose the motion, the simple fact is that the Taheri Law Group case remains squarely on point with the “updated” facts Sorensen alleged in this second complaint against Mr. Madoni. This case, Sorensen’s second lawsuit for the same cause of action against Mr. Madoni, alleges that Mr. Madoni stole away a trust that was Sorensen’s client (McHugh Family Trust), all of which parties were bound up in the same litigation. -6- ANTI-SLAPP SPECIAL MOTION TO STRIKE O [o e] ~ J DN wn + w o No — o o ~ 1 aN WD BS Ww N o f t > Oo c o ~ O N wh BS W I N o p— o Mr. Sorensen’s claim is still based on interference between a represented client in this context despite his argument that the facts are different and take the claim outside the anti-SLAPP statute. In its simplest form, Sorensen alleges that Mr. Madoni stole away a trust that was Sorensen’s client (M cHugh Family Trust), all of which parties were bound up in the same litigation and then conspired with his clients to deprive Sorensen of having his bill paid by the Trust. See, Taheri Law Group v. Evans, (2008) 160 Cal. App.4" 482, 72 Cal.Rptr.3d 847. It bears repeating that the Taheri dealt squarely with a similar case between two laywers. In disregarding Taheri’s arguments in opposition to the anti-SLAPP motion, the Court of Appeal held that the cause of action for intentional interference did arise from protected activity because the complaint plainly showed that the allegations arose from Evans’ communications with Taheri’s client about pending litigation and from Evans’ conduct in enforcing the settlement agreement. The Court stated: “The fact that some of Evans’s communications took place while Taheri was Sorokurs’s attorney— communications which Sorokurs says he initiated—is irrelevant to the question whether the lawsuit arises from communications ‘made in connection with an issue under consideration or review by a.. judicial body. Here. ..Taheri’s causes of action arise directly communications between Sorokurs and Evans about the pending lawsuits against Sorokurs. And, as for the litigation privilege, numerous cases have applied it to prelitigation communications [citations] and the litigation privilege clearly forms interpretation of the ‘arising from’ prong of the anti-SLAPP statute...” Id., at 852-853; citing Navellier v. Sletten, (2003) 106 Cal.App.4™ 763, 770, 131 Cal.Rptr.2d 201; Ruiz v. Harbor View Community Ass'n, (2005) 134 Cal. App.4™ 1456, 1474, 37 Cal Rptr.3d 133 (clauses of the anti-SLAPP statute defining protected activity to include statements made before or in connection with an issue under review by a judicial body “are parallel to and coextensive with the definition of privileged communications Civil Code section 47, subdivision (b)”). The Court then concluded: “In short, it is difficult to conjure a clearer scenario than the case before us of a lawsuit arising from protected activity.” Taheri, 160 Cal. App.4™ at 489. Here, the facts of Sorensen’s Complaint are categorically analogous to the Taheri case. The | gravamen of Sorensen’s Complaint is that he represented the McHugh Family Trust (first William | McHugh then James Shipp) for several years in the McHugh Matter, that he was owed a substantial iy ANTI-SLAPP SPECIAL MOTION TO STRIKE SS W w N n Bh W N B S B S R E ER D PR ER E RG Se I es T i C el pl To Y R en T n TY E E amount of attorney’s fees, and that Mr. Gardner, as successor trustee then took action and terminated Sorensen’s representation after Mr. Madoni was contacted to discuss the case. Consequently, Sorensen Ys can make no counter argument that his intentional interference cause of action against Mr. Madoni is not subject to the anti-SLAPP statute. Iv. CONCLUSION Based on all of the foregoing facts, arguments, and points of law, the Court is urged to grant this motion in its entirety, to issue an order striking Plaintiff Kerry Sorensen’s complaint as against Defendant Stephen Madoni. DATED: September (, , 201 ~ By: COVERLAW, PC i Corporation bn i Cover Attorney for Defendant Stephen A. Madoni SR ANTI-SLAPP SPECIAL MOTION TO STRIKE PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the country aforesaid; I am over the age of eighteen years and not a party to the within action; my business address is P.O. Box 73488, San Clemente, CA 92673. On September 6, 2017, I served the DEFENDANT STEPHEN MADONI REPLY BRIEF IN SUPPORT OF SPECIAL ANTI-SLAPP MOTION TO STRIKE PLAINTIFF'S COMPLAINT AS TO DEFENDANT STEPHEN A. MADONI PURSUANT TO CODE OF CIVIL PROCEDURE, SECTION 425.16 to tthe interested parties in this action by placing a true copy thereof enclosed in a sealed envelop addressed as follows: Kerry L. Sorenson, Esq. Law Office of Kerry L. Sorenson 23591 El Toro Road, Ste 211 Lake Forest, CA 92630 klsatty@yahoo.com [ X 1BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day in the ordinary course of business pursuant CCP. Section 1013(a). I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing affidavit. [ 1BY PERSONAL SERVICE: I personally delivered or caused the above-described document to be personally delivered to the addresses (s) via a California registered process server pursuant CCP Section 1011. [ X ]1BY ELECTRONIC MAIL TRANSMISSION: In addition to service by mail as set forth above, a copy of said document was also delivered by e-mail transmission to the addressee(s) pursuant to CCP. Section 1013 (¢) [ 1BY FACSIMILE TRANSMISSION: In addition to service by mail as set forth above, a copy of said document was also delivered by facsimile transmission to the addressee(s) pursuant to CCP. Section 1013( ¢). [ 1BY EXPRESS MAIL OR EXPRESS CARRIER: I deposited the above-described document in a box or other facility regularly maintained by the express service carrier providing overnight delivery pursuant to CCP Section 1013 (¢). I declare under penalty of perjury under the laws of the State of fi ia that the above is true and correct. Executed on September 6, 2017, at San Clemente, California. mec