Thomas Mauriello Defeats ”SLAPP SUIT” Filed by Developer

In an Order issued October 7, 2008, Judge Sheila Fell of the Orange County Superior Court put an early end to a lawsuit filed in March 2008 by a disgruntled developer against attorney Thomas Mauriello. (Allen v. Mauriello, Orange County Superior Court, Case No. 30-2008-104223.) Judge Fell dismissed the developer’s case against Mr. Mauriello under California’s “anti-SLAPP” statute, Code of Civil Procedure section 425.16. That statute provides a means of obtaining an early dismissal of lawsuits that are deemed to be “strategic lawsuits against public participation,” or “SLAPP” suits, which are designed to intimidate or chill the exercise of free speech. Under the anti-SLAPP statute, once the court determines that the challenged cause of action arises from a protected speech activity (such as the prior lawsuit filed by Mr. Mauriello), the burden shifts to the plaintiff to show a probability of prevailing on the merits.

In this case, the underlying lawsuit was a public interest lawsuit that Mauriello had filed in 2002 as counsel for the North Hills Phoenix Assn., a San Francisco Bay Area community group, and several other clients that challenged the City of Oakland’s issuance of a building permit for a project by that developer. The underlying lawsuit involved important issues of first impression under the City of Oakland’s Creek Protection Ordinance, as well under as the California Environmental Quality Act.

Judge Fell granted Mr. Mauriello’s anti-SLAPP motion after finding that the developer had failed to show a probability of success on the merits on his malicious prosecution claim because Mr. Mauriello demonstrated a reasonable basis for bringing the prior lawsuit. In her order, Judge Fell stated:

[Mr. Mauriello] has adequately shown that the underlying lawsuit was tenable and that [Mr. Mauriello] had a reasonable belief of its probable success. . . . The Court does note that [Allen] has not been entirely accurate in relating conclusions from the underlying case. [Allen} has inaccurately depicted numerous ‘facts’ and ‘findings’ by the prior Court.

Mr. Mauriello was represented in this case by trial attorney Douglas Pettit of Pettit Kohn Ingrasia & Lutz of San Diego. Mr. Mauriello shared the briefing with Mr. Pettit, who along with his legal team handled all the arguments in court.

The anti-SLAPP statute also provides that a “prevailing defendant” in an anti-SLAPP motion “shall be entitled to recover his or her attorney’s fees and costs.” Mr. Mauriello’s motion for recovery of legal fees and costs against the developer is scheduled for hearing in January 2009.