Unreported / Non-Citable
Background
Isaac Musighi and his brother Parviz “Daniel” Mossighi operated a wholesale diamond business before dissolving it in 2013. They arbitrated the division of assets in 2016 and 2017. The amended award largely preserved the original terms, including Isaac’s obligation to pay Daniel approximately $9,018,291, while adjusting the payment plan and blue diamond sale arrangements. Daniel retained attorney Curtis Graham for the confirmation proceedings. After Isaac opposed confirmation and moved to vacate on fraud grounds, the superior court confirmed the award and entered judgment in October 2017.
On March 4, 2025, Isaac first sued Attorney Graham; in the operative first amended complaint, he sued Graham, attorney Dawn B. Eyerly, and Saul Ewing, LLP. The complaint alleged they knowingly pursued confirmation of a fraudulent award, deprived him of notice, submitted false declarations, helped insert binding language into the arbitration agreement, made false representations at the hearing, and interfered with his business through New York litigation. He asserted abuse of process, fraud upon the court, intentional interference with prospective economic advantage, conspiracy to commit fraud, and negligence, seeking approximately $6 million plus punitive damages. The defendants denied liability.
The defendants filed a special motion to strike under Code of Civil Procedure section 425.16, arguing the claims arose from their representation of Daniel and were barred by the litigation privilege. The trial court granted the motion and sustained nearly all evidentiary objections. It later awarded the full requested $23,562 in fees and $1,379.29 in costs based on counsel’s declaration describing 47.6 hours at $495 per hour. Isaac appealed both orders, which the Court of Appeal consolidated.
The Court’s Holding
The court held that every claim arose from protected activity because the alleged misconduct concerned filing and prosecuting the confirmation action, preparing for litigation, presenting declarations and hearing statements, or pursuing related enforcement litigation. The allegation about inserting language into the arbitration agreement was tied to deceiving courts and misleading later litigation, not to conduct affecting the private arbitration itself. Allegations of fraud or unethical conduct did not remove anti-SLAPP protection; otherwise protected conduct loses that status only when criminal and its criminality is conceded or conclusively established, which was not shown here.
Isaac failed at the second step because his claims lacked minimal merit: California’s litigation privilege barred them. The challenged petitioning, declarations, oral advocacy, and judgment-enforcement efforts were directly related to litigation. The privilege is absolute, bars tort claims other than malicious prosecution, and applies even if the conduct was fraudulent. The court rejected Isaac’s evidentiary argument because he did not challenge the exclusion of most of his declaration, the sole proffered evidence of misconduct, and any factual dispute about fraud did not alter the privilege’s application.
Reviewing the fee award for abuse of discretion, the court found the $495 rate reasonable and the 47.6 hours adequately supported by counsel’s task-and-time declaration, which need not be accompanied by contemporaneous billing records. The court held that 32 hours spent preparing the anti-SLAPP motion and responding to Isaac’s opposition was not unreasonable given the need to unravel years of allegations and correct errors. The trial court’s comment that the request facially appeared excessive did not conflict with its ultimate finding that the actual hours were reasonable. The orders were affirmed, with defendants entitled to costs on appeal.
Key Takeaways
- Filing and prosecuting an action to confirm an arbitration award is protected petitioning activity under California’s anti-SLAPP statute.
- Accusing attorneys of fraud or unethical litigation conduct does not by itself remove their conduct from anti-SLAPP protection.
- California’s litigation privilege can establish that claims based on judicial communications lack minimal merit, even when the communications are alleged to be fraudulent.
- A prevailing anti-SLAPP defendant may support a fee request through counsel’s task-and-time declaration without contemporaneous billing records.
- The Court of Appeal affirmed both the order granting the special motion to strike and the order awarding the requested fees and costs.
Why It Matters
The decision illustrates how anti-SLAPP protection and the litigation privilege together dismiss claims against opposing counsel based on litigation conduct, distinguishing protected judicial advocacy from private contractual arbitration.
The fee ruling confirms that correcting an opponent’s miscited authorities can be compensable work. The court also denied Isaac’s eve-of-argument motions to augment the record as untimely and irrelevant, and his day-of-argument request for supplemental briefing as unauthorized.