Filed 10/21/26 Rodriguez v. Melchner CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
ROBERT D. RODRIGUEZ,
Plaintiff, Cross-Defendant A171498
and Appellant,
v. (County of Alameda
DAVID MELCHNER, Super. Ct. No. 23CV026024)
Defendant, Cross-
Complainant and Respondent.
This appeal arises from a dispute over legal services. Appellant Robert
Rodriguez, a former attorney, filed the underlying action to recover unpaid
fees for representing respondent David Melchner in a prior action. Pursuant
to a cross-complaint, Melchner alleges that Rodriguez’s representation in the
prior action was deficient. The present appeal is from an order denying
Rodriguez’s special motion to strike the cross-complaint pursuant to
California’s anti-SLAPP statute. (Civ. Proc. Code, § 425.16, subd. (b);
undesignated statutory references are to this code.) Both parties appear in
pro per, as they did in the trial court. We affirm.
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BACKGROUND1
The Pleadings
Rodriguez filed his complaint in January 2023. He alleges that
between January and March 2020, he and Melchner “entered into open book
accounts,” pursuant to which Melchner agreed to pay Rodriguez for legal
services related to litigating a marital dissolution matter. He alleges further
that on January 20, 2023, he demanded payment of the total amount due for
his services and that Melchner has “at all times refused payment in full.”
Rodriguez incorporates these factual allegations into causes of action for
fraud; negligent misrepresentation; quantum meruit; and account stated.
The complaint also includes a cause of action for “Book Account,” wherein
Rodriguez alleges that money due from Melchner totals at least $8,211.44.
Rodriguez seeks special, compensatory, general and punitive damages
according to proof.2
Melchner filed his cross-complaint in January 2024. Utilizing forms
approved by the Judicial Council, Melchner attempted to allege causes of
action for negligence, intentional tort, breach of contract, and fraud. In
addition, Melchner has alleged that Rodriguez and Doe cross-defendants
violated his rights under the Unruh Civil Rights Act. To support these
claims, Melchner makes factual allegations in an attachment incorporated
1 After this appeal was fully briefed, Rodriguez filed a motion to strike
material from the Clerk’s Transcript that was not selected by him in his
notice designating the record on appeal. We deny this untimely motion.
Rodriguez’s related request for judicial notice of his record designation is
denied, as that document is included in the Clerk’s Transcript.
2 In January 2024, Rodriguez filed an amended complaint, which has
not been included in the appellate record. When this appeal was filed, there
was an ongoing dispute as to whether Melchner had actually been served
with the amended complaint.
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into each cause of action. Melchner alleges that he is a disabled American,
and Rodriguez is a disbarred attorney claiming to be indigent and apparently
desperate for money. He alleges further that legal work Rodriguez performed
between January and March 2020 was below the “standard of care” and “sub-
standard,” and that Rodriguez is fraudulently claiming Melchner owes him
money.
According to the cross-complaint, when Rodriguez was representing
Melchner, he appeared in court under the influence of drugs or alcohol; never
sent Melchner “detailed bills or invoices”; and never claimed Melchner owed
any money beyond what Melchner had already paid “as payment in full.”
Then in March 2023, Rodriguez “sent” Melchner “false and fraudulent”
billings and invoices. Melchner alleges that Rodriguez and other Doe cross-
defendants discriminated against him because of his disability, breached
their duties owed to him, and acted with malice.
The Special Motion to Strike
In February 2024, Rodriguez filed a special motion to strike the cross-
complaint on the grounds that it alleges misconduct relating to statements or
writings made in connection with official proceedings, and that Melchner
cannot establish a probability of prevailing on his claims. According to
Rodriguez’s motion, Melchner’s cross-claims are all directed at Rodriguez’s
protected litigation activity on or after March 8, 2023, namely filing this
lawsuit and litigating his fee claims. Moreover, Rodriguez argued, Melchner
cannot prove his claims because they are time-barred and Rodriguez’s
conduct is protected by the litigation privilege.
A hearing on this motion was set for July 11, 2024, but the matter was
continued until August 1 because Rodriguez’s moving papers were incomplete
and improperly formatted. On July 23, Rodriguez filed a notice of non-
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opposition, contending that Melchner had waived procedural objections and
requesting that the court find that Melchner’s failure to file opposition be
deemed as consent to granting the motion.
On July 31, 2024, the court issued a tentative ruling denying the
special motion to strike. The court tentatively found that Rodriguez failed to
carry his burden under the first prong of the anti-SLAPP law to demonstrate
Melchner’s claims arise from protected activity under section 425.16,
subdivision (e) (section 425.16(e)). The court reasoned that all of Melchner’s
claims are based on one set of factual allegations that appear to arise out of
Rodriguez’s prior representation of Melchner. Claims based on such conduct
are exempted from protection under the anti-SLAPP law, the court found.
(Citing PrediWave Corp. v. Simpson Thatcher & Bartlett LLP (2009) 179
Cal.App.4th 1204, 1227–1228 (PrediWave).) And because Rodriguez failed to
satisfy the first step of the anti-SLAPP analysis, the burden never shifted to
Melchner to submit any evidence demonstrating a probability of success on
the merits.
Rodriguez contested the tentative and both parties appeared on August
1, 2024. The record does not contain a transcript of the August 1 hearing;
however Rodriguez obtained a settled statement in connection with his
appeal, which establishes the following facts. At the hearing, Rodriguez
disagreed with the tentative, arguing that: his motion should be granted
because it was unopposed; the cross-complaint is wholly based on the fact
that Melchner was served with the summons and complaint in this action;
Rodriguez had “indeed” requested that the court to strike discrete portions of
the cross-complaint; the trial court misread the cross-complaint; and the
PrediWave case cited by the court is distinguishable. Melchner made no
arguments at the hearing, having agreed with the tentative. The minute
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order for the August 1 hearing reflects that after the court heard argument,
the matter was taken under submission. Later that day, the court issued a
detailed order denying Rodriguez’s motion in its entirety.
The August 2024 order adopts and expands the court’s tentative ruling.
Addressing Melchner’s allegations in greater detail, the court concluded they
all appear to arise out of Rodriguez’s prior legal representation of Melchner,
and that Rodriguez’s contrary argument misconstrued the cross-complaint.
Rodriguez had argued that all of Melchner’s claims arise out of protected
activity because Melchner alleged on the Judicial Council form that March 8,
2023 was one of the dates on which he was injured, which was the same date
Rodriguez served his complaint. The court pointed out, however, that the
cross-complaint actually alleges that Rodriguez served his fraudulent
invoices on March 8, 2023 and other dates, and that those invoices relate to
the prior representation.
The court found that Melchner’s cross-complaint “is not a model of
clarity,” and noted that it had sustained a demurrer to the cross-complaint
due in part to the cross-complaint’s uncertainty. That said, however, the
material factual allegations challenge Rodriguez’s substandard legal work,
not his actions in bringing this lawsuit, the court found.
DISCUSSION
Section 425.16 authorizes a special motion to strike a cause of action
arising from an act in furtherance of the defendant’s constitutional right of
petition or free speech in connection with a public issue. (§ 425.16, subd. (b).)
“The purpose [of the statute] is to curtail the chilling effect meritless lawsuits
may have on the exercise of free speech and petition rights, and the statute is
to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)”
(Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,
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998.) To resolve an anti-SLAPP motion, the trial court engages in a two-step
process: “First, the court decides whether the [moving party] has made a
threshold showing that the challenged cause of action is one arising from
protected activity. . . . If the court finds such a showing has been made, it
then determines whether the [party opposing the motion] has demonstrated a
probability of prevailing on the claim.” (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67.)
We independently review the trial court’s findings on appeal. (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1055.) Like the trial court, we conclude that
Rodriguez failed to make a threshold showing under the first prong of the
anti-SLAPP analysis that Melchner’s claims arise from protected activity. In
light of this conclusion, we do not reach Rodriguez’s arguments that Melchner
cannot show a likelihood of success on the merits of his cross-complaint.
Protected activity, as defined in section 425.16 consists of acts “in
furtherance of the person’s right of petition or free speech . . . in connection
with a public issue.” (Id., subd. (b)(1).) Such acts include written or oral
statements that are either “made before” a legislative, executive, judicial, or
other official proceeding or “made in connection” with an issue that is under
consideration or review in such a proceeding. (Id., subd. (e).) Here, the facts
alleged in the cross-complaint show that Melchner’s claims arise from the
allegedly poor quality of Rodriguez’s prior legal representation and his
allegedly fraudulent effort later to extract additional payment for those
services, not from protected speech activity related to the filing of this
lawsuit.
I.
Rodriguez first contends his motion should have been granted because
Melchner’s cross-complaint challenges litigation-related conduct Rodriguez
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performed in the prior family law matter, all of which falls “squarely” within
the protections of section 425.16, subdivision (e). This is a materially
different argument than he advanced below, and we question the propriety of
relying on a new theory on appeal. Regardless, the theory lacks merit.
“[A] cause of action arising from acts committed by attorneys in
representing clients in litigation may appropriately be the subject of an anti-
SLAPP motion. [Citation.] However, a client’s action against his or her
attorney, whether it is pleaded as a claim for malpractice, breach of fiduciary
duty, or any other theory of recovery, is not subject to the anti-SLAPP statute
‘merely because some of the allegations refer to the attorney’s actions in
court.’ [Citation.] When the allegations referring to litigation 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.’ ” ’ ” (Wittenberg v. Bornstein (2020) 50
Cal.App.5th 303, 312–313 (Wittenberg).)
For example, a plaintiff’s allegations that his former attorney is
representing clients with interests adverse to the plaintiff does not arise from
protected activity under the anti-SLAPP law because such conduct gives rise
to a claim for breach of a fiduciary duty or professional obligation, “not from
the [attorney’s] litigation conduct, which is merely incidental to the
unprotected conduct.” (Wittenberg, supra, 50 Cal.App.5th at p. 314.) Claims
of this nature have no chilling effect on advocacy, courts have held, because
the threat of liability “encourages the attorney to act competently and
loyally.” (Ibid., citing PrediWave, supra, 179 Cal.App.4th at p. 1222.) These
settled principles undermine Rodriguez’s claim of error. Melchner’s cross-
claims arise from Rodriguez’s allegedly substandard representation of
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Melchner in the prior family law case, and Rodriguez’s prior litigation
conduct was merely incidental to the alleged malpractice.
Rodriguez mistakenly relies on Bergstein v. Stroock & Stroock & Lavan
LLP (2015) 236 Cal.App.4th 793. There, plaintiffs sued opposing counsel in
ongoing litigation, alleging that defendants unlawfully obtained and used
plaintiffs’ confidential information. (Id. at pp. 797, 800.) Affirming an order
granting defendants’ anti-SLAPP motion, the Bergstein court found that the
defendants’ litigation activities were at the core of plaintiffs’ claims, which
sought to hold defendants liable for using confidential information to prepare
for and prosecute litigation against the plaintiffs. (Id. at p. 813.) This case is
materially different. Here, a party is asserting cross-claims against his own
former attorney, and the core of those claims is not that Rodriguez engaged in
litigation activity but rather that he failed to competently represent his
former client.
Rodriguez also relies on Kolar v. Donahue, McIntosh & Hammerton
(2006) 145 Cal.App.4th 1532 (Kolar). In that case, the plaintiffs filed a
malpractice action against the attorney who represented them in litigation
arising from a dispute over a neighbor’s deck, alleging the defendant “ ‘failed
to exercise reasonable care and skill’ while representing them” in the prior
litigation. (Id. at p. 1536.) Affirming an order denying the attorney’s special
motion to strike, the Kolar court found the defendant failed to meet its
burden under the first prong of the anti-SLAPP statute because the plaintiffs’
claims arose from alleged legal malpractice not from protected petitioning
activity. (Id. at p. 1540.) We reach the same conclusion here.
Rodriguez’s reliance on Kolar is perplexing, as that case confirms
“a ‘garden variety legal malpractice action’ . . . is not an activity protected
under the anti-SLAPP statute.” (Kolar, supra, 145 Cal.App.4th at p. 1535.)
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“A malpractice claim focusing on an attorney’s incompetent handling of a
previous lawsuit does not have the chilling effect on advocacy found in
malicious prosecution, libel, and other claims typically covered by the anti-
SLAPP statute. In a malpractice suit, the client is not suing because the
attorney petitioned on his or her behalf, but because the attorney did not
competently represent the client’s interests while doing so. Instead of
chilling the petitioning activity, the threat of malpractice encourages the
attorney to petition competently and zealously. This is vastly different from
a third party suing an attorney for petitioning activity, which clearly could
have a chilling effect.” (Id. at p. 1540.)
Rodriguez attempts to distinguish the cross-complaint from “ ‘garden
variety’ ” legal malpractice cases by contending that Melchner does not
“actually” challenge the quality of Rodriguez’s legal services. According to
Rodriguez, the cross-complaint does contain an allegation that Melchner was
promised “ ‘high quality’ ” legal services, but this court should disregard the
allegation because the legal services agreements executed by these parties do
not contain any promise that Rodriguez’s representation would be of high
quality. This argument is seriously flawed.
Melchner’s claims are all based on the same set of factual allegations,
and they say this about the quality of Rodriguez’s legal representation:
“Melchner hired Rodriguez on a limited basis to perform legal work for
Melchner, pursuant to two written agreements in January and March 2020.
Said legal work was performed well-below the standard of care required for a
California attorney, and Melchner lost every legal remedy based upon
Rodriguez’s malpractice and sub-standard work.” (Italics added.) Melchner
did not allege he was promised extraordinary legal representation, but even if
he had, the pertinent fact is that Melchner’s allegations are clearly directed
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at the inadequacy of Rodriguez’s representation in Melchner’s family law
case, not at protected petitioning activity.
II.
Relying on other isolated allegations in the cross-complaint, Rodriguez
also reverts to his trial court contention that Melchner is attempting to hold
Rodriguez liable for filing this action. First, he construes an allegation that
he “ ‘served’ ” Melchner in March 2023 as proof that he is being sued for
protected conduct related to service of process. But the allegation that
Rodriguez “served” Melchner pertains to serving Melchner with invoices, not
serving process. Second, Rodriguez points out that Melchner alleges that
Rodriguez “maliciously sued” him and others. This accusation of malice
relates to Melchner’s legal theory that Rodriguez’s invoices are fraudulent.
That theory, as we understand it, is that Rodriguez is misrepresenting the
nature and extent of his prior representation in the family law matter,
attempting to extract from Melchner (and perhaps others) money he is not
owed. Rodriguez disputes the merits of Melchner’s fraud claims, but those
arguments are not relevant under the first prong of the anti-SLAPP statute.
What is relevant is that the wrongdoing alleged is Rodriguez’s fraudulent
claim for payment, which is not protected activity.
The trial court found the cross-complaint is not a model of clarity, and
the record reflects that Rodriguez filed a panoply of trial court motions
attacking Melchner’s pleading(s) on other substantive and procedural
grounds, with some success. We confine our review to the denial of
Rodriguez’s anti-SLAPP motion. For the reasons outlined above, we conclude
that motion was properly denied.
Two more arguments Rodriguez makes merit response.
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In his reply brief Rodriguez asserts Melchner’s cross-claims are mixed
causes of action, containing “both protected and unprotected activity,” and
the trial court should have parsed each claim separately. (Citing Baral v.
Schnitt (2016) 1 Cal.5th 376.) This argument ignores that Rodriguez’s anti-
SLAPP motion targeted Melchner’s entire cross-complaint. Although the
motion contained an alternative request to strike specific allegations,
Rodriguez simply listed allegations he found objectionable without making
any showing they were essential to one or more of the cross-claims. Under
analogous circumstances, appellate courts have held that trial courts are not
required to undertake a mixed cause of action analysis. (Paglia & Associates
Construction, Inc. v. Hamilton (2023) 98 Cal.App.5th 318, 327; Park v. Nazari
(2023) 93 Cal.App.5th 1099, 1107–1109; Littlefield v. Littlefield (2024) 106
Cal.App.5th 815, 825–827.) Instead of analyzing the cross-complaint’s claims
as mixed conduct causes of action, Rodriguez asserted they were mixed
causes of action and purported to place the burden on Melchner to show
which claims were not protected. But the burden is on the moving party to
identify “all allegations of protected activity, and the claims for relief
supported by them.” (Baral, at p. 396.) “If a cause of action contains multiple
claims and a moving party fails to identify how the speech or conduct
underlying some of those claims is protected activity, it will not carry its first-
step burden as to those claims.” (Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1011.) “The nonmovant is not faced with the burden of having to
make the moving party’s case for it.” (Ibid.) The point here is that Rodriguez
simply failed to carry his burden as the moving party as to any claim.
Finally, Rodriguez contends the trial court erred by striking out parts
of his proposed settled statement regarding the August 1, 2024, hearing.
Rodriguez argues that ruling violated his right to due process because it
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denied him a complete and adequate record upon which to base his appeal.
We disagree. The record shows that the trial court gave due consideration to
Rodriguez’s proposed settled statement, including by holding a hearing to
address the matter. Rodriguez then raised his due process claim in an
unsuccessful petition for writ of mandate.3 Before us, Rodriguez baldly
asserts the trial court erred in rejecting parts of his proposal, but this
assertion is unsupported by facts or analysis, and is thus completely
unpersuasive.
DISPOSITION
The order denying appellant’s special motion to strike is affirmed.
Costs on appeal to respondent.
TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
Rodriguez v. Melchner (A171498)
We grant Rodriguez’s request for judicial notice of this court’s order
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denying his petition for writ of mandate.
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