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(A
version of this article will appear in the California
Construction Law Reporter, published by the West Group.)
By James E. Acret
Kajima
sued to collect payment for work on the Badger Avenue Bridge
in the Port of Los Angeles. The city cross-complained for
breach of contract and breach of implied covenant of good
faith. The city then amended its cross-complaint to add
19 new causes of action. Kajima moved to strike the amended
cross-complaint as a SLAPP (strategic lawsuit against public
policy) suit forbidden by California Code of Civil Procedure
§425.16. The trial court granted the motion, reconsidered,
then reinstated all but the 12th cause of action. The additional
causes of action include claims for fraud, violations of
Public Contract Code, unfair business practices, embezzlement,
violation of the False Claims Act and RICO.
Affirmed.
Kajima Engineering and Construction, Inc. v. City of
Los Angeles, ___ Cal.App.4th ___, ___ Cal.Rptr.2d ___,
2002 DJDAR 1173 (2002).
SLAPP
plaintiffs file suits for delay and distraction and to punish
activists by imposing litigation costs on them for exercising
their constitutional rights. Favored causes of action in
SLAPP suits are defamation, interference with prospective
economic advantage, nuisance and intentional infliction
of emotional distress.
The
defendant in a SLAPP suit has the burden of showing that
the plaintiff has attacked acts taken in furtherance of
the defendant's constitutional right to petition or to exercise
free speech in connection with a public issue. While it
is true that filing a lawsuit is an exercise of a constitutional
right of petition, Kajima also must show that the amended
cross-complaint attacks acts in furtherance of Kajima's
right of petition or free speech.
The
city alleges causes of action arising from Kajima's bidding
and contracting, not arising from acts in furtherance of
its rights of petition or free speech. It is only the 12th
cause of action, which was struck by the trial court, that
mentions Kajima's specific act in filing the underlying
complaint. Kajima was not exercising its right of petition
at the time of the alleged acts. It was bidding for and
building a construction project. The submission of contractual
claims for payment in the regular course of business is
not an act in furtherance of the right of petition or free
speech within the meaning of the anti-SLAPP statute. Oppressive
litigation tactics alone do not trigger SLAPP. The proper
remedy would be a motion for sanctions under Code of Civil
Procedure §128.7.
(Thelen Reid & Priest LLP, a predecessor to Thelen Reid Brown Raysman & Steiner LLP, represented Kajima in this matter.)
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To learn more about Thelen Reid's Construction and Government Contracts Department, click here. For more information about books and other legal materials written by James Acret, click here and enter "Acret" in the Search Products Field. To learn more about topics covered in this article, contact Paul Berning at (415) 369-7229 or at pwberning@thelen.com.
©2002 Thelen Reid Brown Raysman & Steiner LLP
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