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Heath Fulkerson, At Home Electric, and Heath V. Fulkerson LLC sued Albert & Mackenzie LLP, a law firm, Jeremiah Brasher, an attorney, and Hartford Accident & Indemnity Company, a workers’ compensation insurer, for intentional infliction of emotional distress, slander, and fraud.

The workers’ compensation case involved an alleged injury that occurred on August 22, 2020. Albert & Mackenzie LLP was the attorney of record for Hartford in that case. Brasher investigated Fulkerson’s claim, communicated with Fulkerson regarding possible settlement, developed Hartford’s defenses, conducted discovery, and filed documents in the case.

Fulkerson filed another application for adjudication of claim with the Workers’ Compensation Appeals Board in relation to an alleged injury that occurred on February 6, 2020.

The complaint alleged that as a result of defendants’ actions, Heath Fulkerson was forced to represent himself in Workers’ Compensation Appeals Board case No. ADJ13747725 and incur costs. The complaint did not specify the conduct or statements by defendants upon which plaintiffs’ claims for relief were based.

Defendants filed special motions to strike the complaint pursuant to Code of Civil Procedure section 425.16, asserting that plaintiffs’ claims arose from counsel’s conduct in representing Hartford before the Workers’ Compensation Appeals Board and that plaintiffs could not establish a prima facie case supporting their claims.

The trial court denied the motions, concluding the complaint was too vague to support a finding that it arose from protected activity.

Hartford and Albert & Mackenzie LLP contend on appeal that the trial court should have considered the declarations defendants submitted with their motions, which they claim allowed them to meet their threshold burden of showing that plaintiffs’ claims arose from protected conduct under section 425.16, subdivision (e).

Finding no error, the court of appeal affirmed the trial court’s order in the unpublished case of Fulkerson v Albert & Mackenzie LLP – C095168 (February 2023).

Section 425.16 sets out a procedure for striking what are commonly called strategic lawsuits against public participation or SLAPPs, which are lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Section 425.16, subdivision (b)(1) provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

A motion brought under section 425.16 is called an anti-SLAPP motion. Consideration of such a motion involves a two-step process. Only a cause of action that satisfies both steps is subject to being stricken under the statute.

At the first step of the anti-SLAPP analysis, the moving defendant must make a prima facie showing that the plaintiff’s cause of action arises from an act by the defendant taken in furtherance of the defendant’s right of petition or free speech under the United States or the California Constitution in connection with a public issue. A defendant meets his or her threshold burden by demonstrating that the conduct by the defendant underlying the plaintiff’s claim fits one of the categories described in section 425.16, subdivision (e). Those categories include statements or writings in connection with matters before the Workers’ Compensation Appeals Board.

Here the complaint did not identify liability-producing conduct or statements by defendants. Defendants do not cite authority for the proposition that they can satisfy their threshold burden with declarations articulating possible bases for the plaintiffs’ claims when the challenged pleading does not contain such allegations.

The court of appeal cannot assume that Hartford’s attorneys must have engaged in protected activity. The trial court properly denied the anti-SLAPP motions. The court need not address the second step, whether plaintiffs could demonstrate a probability of prevailing on the merits.