Dacanay v. Beckman

Filed 3/23/07 Dacanay v. Beckman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Judith C. Chirlin, Judge. Affirmed.

Freeburg, Nettels & Schaldenbrand, Steven J. Freeburg and Bryan W. Beckmann for Defendant and Appellant.

Magaa, Cathcart & McCarthy, Anne M. Huarte and Brian R. Magaa for Plaintiffs and Respondents.

_________________________

Defendant and appellant Bryan W. Beckmann (Beckmann) appeals an order denying his request for attorney fees and costs under the anti-SLAPP statute (Code Civ. Proc.,  425.16)^[1]following the dismissal by plaintiffs and respondents Felix Dacanay (Dacanay) and Golden Budha Corporation (Golden Budha) of their action against him.

The essential issue presented is whether the cause of action by Dacanay and Golden Budha against Beckmann for breach of fiduciary duty arose from any acts by Beckmann in furtherance of his right of petition or free speech under the United States or California Constitutions. ( 425.16, subd. (b)(1).)

We conclude, as did the trial court, that the cause of action against Beckmann for breach of fiduciary duty was not based on, and did not arise from, protected activity as defined by the statute. Therefore, Beckmann would not have prevailed on his anti-SLAPP motion had the action not been voluntarily dismissed. Accordingly, the trial court properly denied Beckmanns motion for attorney fees and costs. The order is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

1. Events leading up to the instant lawsuit.

Prior to 1991, Roger Roxas, a citizen and resident of the Republic of the Philippines, assigned his right, title and interest in a claim against Ferdinand Marcos and Imelda Marcos for recovery of gold, diamonds and other valuables to Golden Budha. Golden Budha, as assignee, commenced an action in Hawaii against the Marcos defendants to recover damages for the theft of said valuables. Roxas and later his estate joined as coplaintiff to recover damages for personal injuries he suffered at the hands of the Marcos defendants.

Beckmann is a California attorney and a licensed private investigator. In 1991, Golden Budha and Roxas entered into an agreement with Beckmann giving him a contingent interest in their recovery in exchange for his assistance in preparing and investigating their claims against the Marcos defendants. Under the agreement, Beckmann was given access to the files of counsel for Golden Budha and Roxas. Among the materials reviewed by Beckman were documents from one Bernabe Calimlim, who claimed to have participated with Roxas in recovering the valuables that were the subject of the Hawaii litigation. Calimlims claimed interest in the valuables was in conflict with the claims being asserted by Golden Budha.

Beckmann allegedly failed to perform under the agreement and his relationship with Golden Budha and Roxas was terminated.

The Hawaii litigation against the Marcos defendants was tried in 1996 and resulted in a judgment in favor of Roxass estate in the approximate amount of $6 million for his imprisonment and torture, and a judgment in favor of Golden Budha against the estate of Ferdinand Marcos in an amount in excess of $43 billion.

Beckmann, represented by Christopher Brizzolara and Michael Sisson, then brought suit against Golden Budha and its president, Dacanay, for recovery of amounts allegedly due him under the terminated agreement with Golden Budha and Roxas. Beckmann alleged breach of a contract to pay him one percent of all amounts recovered in the Hawaii litigation. Golden Budha and Dacanay denied they breached any agreement with Beckmann. That action is still pending in the Los Angeles Superior Court.

2. The instant lawsuit by Golden Budha and Dacanay against Beckman.

This lawsuit, filed November 25, 2003, pleads a single cause of action against Beckmann for breach of fiduciary duty. Golden Budha and Dacanay alleged in relevant part:

Beckmann gave confidential materials from the files of Golden Budhas counsel, which Beckmann had obtained while acting as legal counsel and private investigator for Golden Budha, to his attorneys, Brizzolara and Sisson, in violation of his obligations under the Business and Professions Code. Using this confidential information, Beckmann and his attorneys contacted and solicited Calimlim and induced him to file a lawsuit against Golden Budha and Dacanay. The inducement by Beckmann and his counsel to Calimlim to file suit against Beckmanns former clients, Golden Budha and Roxass estate, was adverse to them and involved the use and disclosure of information obtained by Beckmann in confidence while employed by Golden Budha and Roxas.

Golden Budha and Dacanay further pled: After obtaining Calimlims agreement to pursue his claims against Golden Budha and Dacanay, Beckmann and his counsel aided in the formation of a sham corporation to which Calimlim assigned his claims and which prosecuted the action against Golden Budha and Dacanay. Said action was tried to the court sitting without a jury and concluded in a judgment for the defense. As a result of the misconduct of Beckmann and his counsel, Golden Budha and Dacanay incurred attorney fees and litigation expenses in excess of $600,000.

3. Beckmanns special motion to strike the instant complaint.

On March 8, 2004, Beckmann filed a special motion pursuant to section 425.16 to strike the instant complaint. Beckmann contended the complaint for breach of fiduciary duty was one arising from protected activity and was filed solely for the purpose of chilling his First Amendment rights in prosecuting his breach of contract action against Golden Budha and Dacanay and defending against their cross-complaint on the same contract.

Beckmann further argued that because he made a threshold showing the challenged cause of action arose from protected activity, the burden shifted to Golden Budha and Dacanay to establish a probability they would prevail on their claims against him. Beckmann asserted they were unable to show a reasonable probability of prevailing on the merits for a number of reasons. First, the complaint was time-barred, in that the applicable one-year statute of limitations accrued no later than 1998 and expired several years before the filing of the instant complaint. Further, the litigation privilege of Civil Code section 47, subdivision (b)(2), protected statements made by Beckmann in the course of judicial proceedings and was a complete bar to plaintiffs complaint. In addition, pursuant to Evidence Code section 958, Beckmann was entitled to disclose to his attorneys all facts relevant to the preparation of his lawsuit and defense of the cross-complaint, and the statute was a complete bar to plaintiffs complaint.^[3]

Beckmanns special motion to strike also indicated that after the grant of the motion, he would be seeking attorney fees and costs pursuant to section 425.16, subdivision (c).

4. Golden Budha and Dacanay dismiss the entire action with prejudice.

On March 15, 2004, about two weeks before the scheduled date of the hearing on Beckmanns anti-SLAPP motion, Golden Budha and Dacanay voluntarily dismissed the entire action with prejudice.

Their counsel notified Beckmann of the dismissal in a letter that day, stating: Due to the questions concerning the statute of limitations, and the apparent difficulty of collecting any judgment we might recover if we overcome your statute of limitation arguments, my clients have decided to dismiss the above named action in its entirety.

5. Beckmanns motion for attorney fees and costs.

On March 30, 2004, Beckmann filed a motion for an award of mandatory attorney fees and costs pursuant to section 425.16, seeking $32,557.68 against Golden Budha and Dacanay.

Beckmann argued the dismissal did not bar an award of attorney fees and costs under section 425.16, and the trial court retained jurisdiction to hear the merits of the anti-SLAPP motion to determine whether Beckmann was the prevailing party for purposes of an award of attorney fees and costs under the statute.

Beckmann reiterated that the complaint against him arose out of a valid exercise of his petition rights, i.e., his litigation activities against Golden Budha and Dacanay and their counsel in the underlying action. Further, Golden Budha and Dacanay would be unable to prevail on their cause of action due to the statute of limitations and other grounds.

6. Trial courts ruling.

On August 4, 2004, the matter came on for hearing. The trial court ruled there was no prevailing party in the matter and denied Beckmanns request for attorney fees and costs.

In ruling on the matter, the trial court observed: This case has been going on for  I dont even remember how long. [] It started on what I believe was a relatively flimsy premise, and everybodys fighting over money that may or may not ever come about, from the depths of hiding wherever Ferdinand Marcos before he died went off and hid stuff, and all this is blood wars between the attorneys ever since then. [] Its a colossal waste of everybodys time and efforts. [] . . . [] . . . it is my perception that this whole thing is an exercise on one side or the other trying to extend this already inordinate little lengthy and wasteful exercise to cause aggravation and to generate legal fees or the requirement of expending legal fees and efforts by the other side. [] I personally am not going to participate in that and so Im not awarding attorneys fees.

Beckmann appealed the order denying his request for attorney fees and costs.

7. This court reversed the order denying Beckmanns request for attorney fees and remanded for further proceedings.

In Dacanay I, this court reversed. We held that notwithstanding plaintiffs dismissal of their action prior to the hearing on the special motion to strike, the trial court was obligated to consider the merits of the special motion to strike as a predicate to a determination of Beckmanns request for attorney fees and costs under section 426.16, subdivision (c).

Our decision in Dacanay I was guided by Liu v. Moore (1999) 69 Cal.App.4th 745 (Liu). There, the question was whether the plaintiff in a SLAPP suit . . . can, by the device of dismissing the [suit] prior to a hearing on the defendants motion to strike the complaint, avoid paying the attorneys fees incurred by the defendant in defending the suit. (Id. at p. 747.) Liu held a defendant who is voluntarily dismissed, with or without prejudice, after filing a section 425.16 motion to strike, is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendants motion for attorneys fees and costs under subdivision (c) of that section. (Id. at p. 751; accord Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218 [holding Lius conclusion is equally compelling when . . . the suit is dismissed sua sponte by the trial court as when it is voluntarily dismissed by the plaintiff].)^[4]

Accordingly, notwithstanding the voluntary dismissal by plaintiffs, Beckmann was entitled to have the merits of his special motion to strike heard as a predicate to a determination of his motion for attorneys fees and costs under section 425.16, subdivision (c). Therefore, the trial courts refusal to make a determination as to prevailing party was a clear error of law requiring reversal.

We directed the trial court on remand to conduct further proceedings on the issue of the merits of the motion to strike, and depending on the ruling thereon, the request for attorney fees and costs. We stated: [U]nder the statutes two-step process, [a]n award of these expenses under section 425.16 is only justified when [(1)] a defendant demonstrates that plaintiffs action falls within the provisions of subdivision (b) [i.e., the action is subject to a special motion to strike] and [(2)] the plaintiff is unable to establish a reasonable probability of success. [Citation.] (Liu v. Moore, supra, 69 Cal.App.4th at p. 752.) (Dacanay I, slip opn., p. 11.)

8. Proceedings on remand: trial court denied Beckmanns motion for attorney fees on the ground he failed to meet his threshold burden to establish the complaint against him for breach of fiduciary duty was subject to a special motion to strike.

On March 24, 2006, the trial court conducted a hearing on remand and took the matter under submission.

On April 26, 2006, the trial court denied Beckmanns motion for attorney fees and costs, concluding he failed to meet his burden to show the lawsuit against him arose out of a protected activity. The trial court set forth its rationale in a lengthy minute order, stating in relevant part:

The Court of Appeal ruled [this] Court must consider the merits of the special motion to strike as a predicate to a determination of Beckmanns request for attorneys fees and costs under section 426.16 subdivision (c). Thus the Court considers the merits of the Defendants Special Motion to Strike.

For the first step in the analysis, this Court must determine whether Beckmann has established that the cause of action against him arose out of acts . . . taken to further [his] right of free speech or petition in connection with a public issue. If he fails to carry that burden, the motion must be denied. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80. A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subd. (e) . . . . City of Cotati, supra at 78.

Defendant relies on C.C.P.  425.16 (b)(1) and (e)(4), communications preparatory to or in anticipation of an official proceeding. Beckmanns Special Motion to Strike, dated March 5, 2004, p. 8:16-17. Defendant argues Here, plaintiffs action specifically seeks to punish Beckmann for filing his breach of contract action and defend against plaintiffs cross-complaint and inhibit communications with his attorney in furtherance of that litigation to prevent Beckmann from litigating a meritorious claim against plaintiffs, and prevention Beckmanns counsel to serve as a zealous advocate on his behalf.

Plaintiffs do not dispute that Beckmann had the right to bring the breach of contract action, and to communicate in confidence with his attorneys about his breach of contract action against Plaintiffs. Plaintiffs Opposition to Beckmanns Special Motion, filed April 9, 2004. They deny, however, that Plaintiffs complaint arises out of any such communications. They point out that the [complaint in the dismissed] lawsuit centers on the allegations that Beckmann and his attorneys used the confidential information provided to him for the underlying investigation to seek out Calimlim set up a joint meeting with him, and [tell] him that they were interested in representing him in a case against the Plaintiffs . . . . that he and his attorney cohorts then helped Calimlim form the Cal-Rox corporation, had Calimlim assign his rights to it, and then filed suit against the Plaintiffs, claiming a contract existed entitling Calimlim to a good portion [first 50% and then later 75%] of the Golden Budha treasure. [Citation.]

A review of the complaint supports Plaintiffs contention. The lawsuit addresses Beckmanns use of confidential information to the potential detriment of his client: the conveying of that information to the attorneys who then turned around and sued Beckmanns original client. Actions in violation of the Rules of Professional Conduct can not, in this context, be held to be protected activity. To so hold would shield any attorneys who engaged in unscrupulous activities to the detriment of their litigation clients from liability to those clients, as any lawsuit brought by the client to redress that grievance could be met by an Anti-SLAPP motion.

Defendant further argues that to the extent that the lawsuit involves both protected and non-protected activity, an Anti-SLAPP motion will lie. Defendant is correct in stating that general principle of law. See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90. But the cases also acknowledge that where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct. [Citations.]

It is clear also that the matter does not fall within  425.16 just because it in some way involves lawyers in the litigation context. (See Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624 (Second District) [(Jespersen)].

In the case at bar, it is clear that any alleged activity that Defendant asserts is protected (communication to his lawyers regarding his breach of contract case) is merely incidental to the unprotected conduct (solicitation of Calimlim and the resulting prosecution of Calimlims case against Defendants original client). As pointed out by Plaintiffs, if Beckmann had done nothing other than convey the information to his lawyers for the purposes of litigating his own case, the Anti-SLAPP motion would be well taken. But the gravamen of this complaint is not the communication to his lawyers: it is what he and the other lawyers did with that information unrelated to Beckmanns lawsuit. That conclusion is supported not only by the allegations of the complaint, but the declarations and evidence submitted by the parties, and the Courts knowledge of the history of the case . . . .

[] . . . []

The Court, having concluded that Defendant did not meet his burden of showing that the lawsuit involved a protected activity, DENIES the Motion for Attorneys Fees and Costs. (Italics added.)

On May 24, 2006, Beckmann filed a timely notice of appeal from the order on remand denying his motion for attorney fees and costs.

CONTENTIONS

Beckmann contends the trial court erred in denying his motion for attorney fees because, had the action not been voluntarily dismissed, he would have prevailed on his anti-SLAPP motion in that (1) he met his burden to show the complaint against him for breach of fiduciary duty arose out of his protected activity and (2) Dacanay and Golden Budha failed to meet their burden to demonstrate a probability of prevailing on their claim.

DISCUSSION

1. No merit to respondents jurisdictional argument.

Respondents contend Beckmanns failure to set a timely hearing on remand deprived the trial court of the power to hear the matter.

Following disposition of the prior appeal, the remittitur issued on January 9, 2006. The hearing on remand occurred on March 24, 2006. Respondents contend, based on the time requirements of section 425.16, subdivision (f), that the trial courts power to hear and decide the anti-SLAPP motion expired prior to that time.

Section 425.16, subdivision (f) provides: The special motion may be filed within 60 days of the service of the complaint or, in the courts discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing. (Italics added.)

This statutory provision relates to the timing of an anti-SLAPP motion at the inception of an action it does not purport to impose procedural timetables for a hearing on remand from an appellate court. Therefore, section 425.16, subdivision (f) does not support respondents contention the hearing on remand had to be conducted within 30 days of the issuance of the remittitur. The fallacy in respondents argument is that it equates the issuance of the remittitur by the appellate court with the service of a notice of motion by Beckmann.^[5]

We now turn to the merits of the appeal.

2. General principles.

a. The remedy of a special motion to strike under section 425.16.

The purpose underlying section 425.16 is set forth in the anti-SLAPP statute, which states: The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. ( 425.16, subd. (a).)

To meet this concern, the statute provides that a cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. ( 425.16, subd. (b)(1).)

That determination is made on the basis of the pleadings, as well as supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2).) Once it has been determined there is a probability the plaintiff will prevail, that determination is inadmissible at any later stage of the case and does not affect the applicable burden or degree of proof. ( 425.16, subd. (b)(3).)

b. The parties respective burdens of proof and our standard of review.

We summarize a courts task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, italics added.)

In other words, the moving defendants burden is to show the challenged cause of action arises from protected activity. [Citations.] Once [but only if] it is demonstrated the cause of action arises from the exercise of the defendants free expression or petition rights, then the burden shifts to the plaintiff to show a probability of prevailing in the litigation. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 151, first italics added.)

The trial courts rulings on these two issues are reviewed under a de novo standard. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999; Moore v. Shaw (2004) 116 Cal.App.4th 182, 194.)

Here, the trial court, in examining the allegations in Dacanay and Golden Budhas dismissed complaint, determined Beckmann did not meet his initial burden to show the cause of action against him for breach of fiduciary duty arose from protected activity by him. Consequently, it was unnecessary for the trial court to address whether Dacanay and Golden Budha showed a probability of prevailing in the action and the trial court did not reach that issue.

3. Trial court properly found Beckmann failed to meet his initial burden to show the cause of action against him for breach of fiduciary duty arose from his protected activity.

a. The alleged conduct underlying the cause of action for breach of fiduciary duty.

Notwithstanding the voluntary dismissal by Dacanay and Golden Budha of their complaint against Beckman for breach of fiduciary duty, that complaint remains the operative pleading for purposes of determining Beckmanns entitlement to attorney fees under the anti-SLAPP statute. ( 425.16, subd. (b)(2) [the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based].) Therefore, we review the complaint by Dacanay and Golden Budha, even though dismissed, to determine upon what alleged conduct they based their cause of action for breach of fiduciary duty. (See Jespersen, supra, 114 Cal.App.4th at p. 632, fn. 6.) The pleading alleged in relevant part:

Beckmann gave confidential materials from the files of Golden Budhas counsel, which Beckmann had obtained while acting as legal counsel and private investigator for Golden Budha, to his attorneys, Brizzolara and Sisson, in violation of his obligations under the Business and Professions Code. Using this confidential information, Beckmann and his attorneys contacted and solicited Calimlim and induced him to file a lawsuit against Golden Budha and Dacanay. The inducement by Beckmann and his counsel to Calimlim to file suit against Beckmanns former clients, Golden Budha and Roxass estate, was adverse to them and involved the use and disclosure of information obtained by Beckmann in confidence while employed by Golden Budha and Roxas.

The operative complaint further pled: After obtaining Calimlims agreement to pursue his claims against Golden Budha and Dacanay, Beckmann and his counsel aided in the formation of a sham corporation to which Calimlim assigned his claims and which prosecuted the action against Golden Budha and Dacanay. Said action was tried to the court sitting without a jury and concluded in a judgment for the defense. As a result of the misconduct of Beckmann and his counsel, Golden Budha and Dacanay incurred attorney fees and litigation expenses in excess of $600,000.

In essence, the complaint alleges Beckmann breached his duties of confidentiality and loyalty to his former clients, i.e. Golden Budha and Dacanay, and that he used information acquired from said former clients to participate in wrongful solicitation of another client, namely Calimlim, whose interests were adverse to his former clients.

As explained below, we do not perceive these alleged acts by Beckmann as having been done in furtherance of [his] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . . ( 425.16, subd. (b)(1), italics added.)

b. Jespersen decision is instructive.

Jespersen, supra, 114 Cal.App.4th 624, is instructive. There, attorneys who were sued for litigation-related malpractice filed an anti-SLAPP motion. The trial court denied the motion, concluding the malpractice action did not qualify for treatment under section 425.16. The reviewing court affirmed, concluding [t]he alleged malpractice did not arise out of the attorneys First Amendment right to petition. Rather the malpractice alleged is appellants negligent failure to protect their clients rights in the underlying action. (Jespersen, supra, at p. 627.)

Jespersen discern[ed] that appellants conduct allegedly consisted of: (1) a failure to serve timely discovery responses, resulting in a waiver of objections pursuant to section 2031, subdivision (l); (2) a failure to comply with a court order to serve responses without objections; and (3) a failure to comply with a second court order. Thus, it appears that the alleged attorney malpractice did not consist of any act in furtherance of anyones right of petition or free speech, but appellants negligent failure to do so on behalf of their clients. (Jespersen, supra, 114 Cal.App.4th at p. 631.)

One of the Jespersen appellants contended the evidence of appellants conduct, a declaration she filed in the underlying action, is the protected free speech or petition from which respondents cause of action arises. (Jespersen, supra, 114 Cal.App.4th at p. 631.) The appellate court stated: Although [appellants] logic escapes us, it is apparently based upon the fact that such evidence was a written statement filed in a judicial proceeding. (See 425.16, subd. (e).) The declaration was filed in support of a motion submitted by appellants on behalf of respondents pursuant to section 473 to set aside the default. In it, [appellant] essentially admitted that she continued to apply her own interpretation to the discovery request, although it was at odds with opposing counsels and the courts, and that in order to protect her clients privacy, she continued to refuse to produce certain financial documents. Thus, she admitted having effectively interposed an objection (privacy) in direct conflict with the courts order. (Jespersen, supra, 114 Cal.App.4th at pp. 631-632.)

Jespersen reasoned respondents cause of action is not based on . . . any of appellants declarations. Appellants have not been sued for having negligently filed declarations admitting their malpractice, but for their failure to comply with a discovery statute and two court orders to do so. Appellants have failed to demonstrate that such conduct amounts to constitutionally protected speech or petition, and we reject their attempt to turn garden-variety attorney malpractice into a constitutional right. Thus, we need not consider whether respondents demonstrated a probability of prevailing on the claim. [Citation.] (Jespersen, supra, 114 Cal.App.4th at p. 632, italics added.)

c. Any anti-SLAPP protected activity was not the gravamen or principal thrust of the cause of action against Beckmann for breach of fiduciary duty.

Here, assuming arguendo Beckmanns sharing certain confidential information with his attorneys was protected activity in furtherance of his petition rights, the use of that information to engage in soliciting a case adverse to his former clients interests was not constitutionally protected activity. Further, had the confidential information merely been communicated to Beckmanns attorneys, Beckmanns former clients would not have suffered injury. It was the solicitation of Calimlims adverse case that caused them to incur attorney fees and costs in excess of $600,000 in defending that action.

It is the principal thrust or gravamen of the plaintiffs cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)

We conclude, as did the trial court herein, that any anti-SLAPP protected activity was not the gravamen or principal thrust of the cause of action against Beckmann for breach of fiduciary duty. To reiterate the trial courts ruling, it is clear that any alleged activity that [Beckmann] asserts is protected (communication to his lawyers regarding his breach of contract case) is merely incidental to the unprotected conduct (solicitation of Calimlim and the resulting prosecution of Calimlims case against Defendants original client). As pointed out by Plaintiffs, if Beckmann had done nothing other than convey the information to his lawyers for the purposes of litigating his own case, the Anti-SLAPP motion would be well taken. But the gravamen of this complaint is not the communication to his lawyers: it is what he and the other lawyers did with that information unrelated to Beckmanns lawsuit.

For these reasons, we conclude the cause of action against Beckmann for breach of fiduciary duty was not based on, and did not arise from, protected activity as defined by section 425.16.^[6] Accordingly, the burden never shifted to Golden Budha and Dacanay to demonstrate a probability they would prevail on their complaint against Beckmann.

Because Beckmann would not have prevailed on his anti-SLAPP motion had the action not been voluntarily dismissed, the trial court correctly denied Beckmanns motion for attorney fees and costs.

DISPOSITION

The order is affirmed. The parties shall bear their respective costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

^[2] This factual and procedure history is drawn in part from this courts previous opinion in this matter (Felix Dacanay and Golden Budha Corporation v. Bryan W. Beckmann (Nov. 3, 2005, B177758) [nonpub. opn.]) (hereafter, Dacanay I).

^[3] Evidence Code section 958 provides: There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

^[4]Liu recognized that regardless of the dismissal of the suit against the appellant, the trial court retained jurisdiction to determine the merits of the special motion to strike as a predicate to the determination of the issue of attorney fees and costs. It is the general rule that once a person is dismissed from a lawsuit she is no longer a party to it and the court lacks jurisdiction to conduct further proceedings respecting her. [Citation.] However, courts have carved out a number of exceptions to this rule in order to give meaning and effect to a former partys statutory rights. Even after a party is dismissed from the action [s]he may still have collateral statutory rights which the court must determine and enforce. These include the right to statutory costs and attorneys fees . . . . [Citations.] [Citation.] (Liu, supra, 69 Cal.App.4th at p. 751, fn. 3.)

^[5] Respondents raised the same argument below. Not surprisingly, it was summarily rejected by the trial court without comment.

^[6] In view of our conclusion the cause of action against Beckmann did not arise from his exercise of the constitutional rights of petition or free speech, it is unnecessary to address Beckmanns contention that he exercised his petition and free speech rights in connection with a public issue or an issue of public interest. ( 425.16, subd. (e)(4), italics added.)