Unreported / Non-Citable
Background
This dispute arose after an explosion at a restaurant badly injured one of its owners. The Perry Law Firm had long represented the owners, while Daniel Escamilla had worked with them intermittently. After the explosion, Escamilla attempted to take over the owners' media and legal response. Michael Perry asserted that Escamilla was engaged in the unauthorized practice of law and ultimately gained control of that response. Escamilla sued Perry and the firm for claims including slander, and they cross-complained for intentional interference with economic and contractual relations.
Escamilla successfully moved to strike the cross-complaint, and a different appellate panel affirmed that dismissal in Perry I. He then filed this action against Perry, Christopher Hoo, Larry Roberts, and the Perry Law Firm, alleging malicious prosecution based on the dismissed cross-complaint and abuse of process based on a subpoena seeking his State Bar licensure and disciplinary records. The defendants responded with their own anti-SLAPP motion. In Perry II, another panel found the motion untimely as to Perry, Roberts, and the firm but remanded for the trial court to decide whether to accept it, while also concluding on the merits that Escamilla had not shown a probability of prevailing on abuse of process.
On remand, the trial court accepted the late filing and struck the abuse of process claim against Perry, Roberts, and the firm. It also vacated its order granting the Perry II defendants' motion to strike the malicious prosecution claims against Escamilla and denied that motion. Escamilla appealed again. The October 6, 2026 opinion affirmed the order striking the abuse of process claim. A November 4, 2026 order corrected a citation to Perry II and denied rehearing without changing the judgment.
The Court’s Holding
The court first rejected Escamilla's argument that the ordinary 60-day anti-SLAPP deadline applied. His complaint expressly identified the entire action as a SLAPPback under Code of Civil Procedure section 425.18, and the court held he could not later narrow that designation to obtain a shorter deadline; it treated him as estopped from denying the SLAPPback framework governed. Section 425.18 therefore supplied the 120-day deadline, with discretion to accept a motion filed within six months of service.
The court also upheld acceptance of the late motion. The within-six-month provision requires neither special findings nor extraordinary circumstances and does not require the court to impose terms, unlike the provision governing later filings. Escamilla also failed to identify any reason the result would have differed had he received another opportunity to oppose acceptance. The court concluded the trial court did not err in considering the motion filed by Perry, Roberts, and the firm.
On the merits, the court held the subpoena did not trigger section 425.18's illegality bar. Business and Professions Code section 6060.25 restricts disclosure of protected information rather than the act of seeking it, and the subpoena also sought records disclosable in response to a lawful subpoena; independently, a discovery subpoena is not the underlying cause of action whose illegality would bar an anti-SLAPP motion. The subpoena also had a facially legitimate purpose—obtaining evidence relevant to whether Escamilla practiced law without authorization, supporting a truth defense to his slander allegations. Its overbreadth and the quashing of it did not establish an ulterior motive or improper use of court process, absent evidence of further pursuit or discovery harassment.
Key Takeaways
- A plaintiff who expressly designates an entire lawsuit as a SLAPPback may be estopped from later narrowing that designation to invoke the shorter ordinary anti-SLAPP deadline.
- Section 425.18 permits discretionary acceptance of a SLAPPback anti-SLAPP motion filed within six months without the findings required for later filings.
- Confidentiality restrictions on disclosing State Bar records do not necessarily make it illegal to seek those records through a subpoena.
- An overbroad subpoena, standing alone, does not establish the ulterior motive and improper use of process required for abuse of process.
- The October 6, 2026 opinion affirmed costs to Perry, Roberts, and the Perry Law Firm; the November 4, 2026 modification and denial of rehearing left the judgment unchanged.
Why It Matters
The decision applies the SLAPPback statute's distinct timing rules and reinforces that a party's own pleaded characterization of an action can determine the procedural deadline governing an anti-SLAPP motion. It also distinguishes the requirements for accepting a motion within six months from the more demanding findings required after that period.
The merits analysis separates overbroad discovery from abuse of process: a subpoena aimed at information relevant to a legitimate defense does not become process abuse merely because a court later quashes it as overbroad. The affirmance leaves the malicious prosecution claims outside its scope, which concerns only the order striking the abuse of process claim against Perry, Roberts, and the firm.