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1 MATTHEW W. CLOSE (S.B. #188570) [email protected] 2 BRITTANY ROGERS (S.B. #274432) 3 [email protected] O’MELVENY & MYERS LLP 4 400 South Hope Street Los Angeles, California 90071-2899 5 Telephone: (213) 430-6000 6 Facsimile: (213) 430-6407 7 Attorneys for Defendants Robert Rosette, Rosette & Associates, PC, Rosette, LLP, and 8 Richard Armstrong

9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 WILLIAMS & COCHRANE, LLP, and Case No. 17-CV-01436 GPC MDD FRANCISCO AGUILAR, MILO 14 BARLEY, GLORIA COSTA, GEORGE REDACTED 15 DECORSE, SALLY DECORSE, et al., on behalf of themselves and all those MEMORANDUM OF POINTS 16 similarly situated AND AUTHORITIES IN SUPPORT OF ROSETTE 17 Plaintiffs, DEFENDANTS’ SPECIAL MOTION TO STRIKE 18 v. PLAINTIFFS’ SIXTH CLAIM FOR RELIEF PURSUANT TO 19 QUECHAN TRIBE OF THE FORT CALIFORNIA CODE OF 20 YUMA INDIAN RESERVATION, a CIVIL PROCEDURE SECTION federally-recognized Indian tribe; 425.16 21 ROBERT ROSETTE; ROSETTE & ASSOCIATES, PC; ROSETTE, LLP; [Notice of Motion and Request for 22 RICHARD ARMSTRONG; KEENY Judicial Notice Filed Concurrently] ESCALANTI, SR.; MARK WILLIAM 23 WHITE II, a/k/a WILLIE WHITE; and Judge: Hon. Gonzalo P. Curiel 24 DOES 1 THROUGH 10, Courtroom: 2D Date: October 12, 2018 25 Defendants. Time: 1:30 p.m. 26

27 28 MEM. ISO SPECIAL MOTION TO STRIKE PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF CONTENTS

2 Page

3 I. INTRODUCTION ...... 1

4 II. RELEVANT ALLEGATIONS AND FACTS ...... 4

5 III. ARGUMENT ...... 5 6 A. The Individual Plaintiffs’ State-Law Claim Triggers the 7 Anti-SLAPP Statute’s Protection Because It Arises from Protected Conduct ...... 6 8 1. The Anti-SLAPP Statute Protects Attorneys’ 9 Communications Related to Client Representation, Threatened Litigation, and Official Proceedings...... 7 10 2. California’s Anti-SLAPP Statute Protects the Rosette 11 Defendants’ Communications, Regardless of How the Individual Plaintiffs Label Their Claim ...... 11 12 B. The Individual Plaintiffs Cannot Prevail on the Merits ...... 14 13 1. The Individual Plaintiffs’ Claim Fails Because They Are 14 Neither the Rosette Defendants’ Clients Nor Intended Third-Party Beneficiaries of the Attorney Services 15 Contract ...... 14 16 2. The Individual Plaintiffs Also Cannot Succeed on the Merits Because They Cannot Identify an Act or Omission 17 that Violated Standards of Professional Conduct ...... 19 18 3. The Rosette Defendants’ Communications with Quechan 19 and the State Are Immune from Liability Under Civil Code Section 47(b) and the Noerr-Pennington Doctrine ...... 20 20 4. Plaintiffs Cannot Use the Federal Courts to Usurp the 21 Tribe’s Authority or Assume the Tribe’s Legal Rights ...... 23 22 IV. CONCLUSION ...... 25

23 24 25 26 27 28 MEM. ISO SPECIAL MOTION TO STRIKE i PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES

2 Page

3 Cases 4 1901 First St. Owner, LLC v. Tustin Unified Sch. Dist., 5 2017 WL 5185147 (Cal. Ct. App. Nov. 9, 2017) ...... 22 6 Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232 (2007) ...... 20 7 8 Anderson v. Duran, 70 F. Supp. 3d 1143 (N.D. Cal. 2014) ...... 24 9 Aragon v. Pappy, Kaplon, Vogel & Phillips, 10 214 Cal. App. 3d 451 (1989) ...... 17 11 Attorney’s Process and Investigation Services, Inc. v. Sac & Fox Tribe 12 of Mississippi in Iowa, 13 609 F.3d 927 (8th Cir. 2010) ...... 24 14 Balsam v. Tucows Inc., 627 F.3d 1158 (9th Cir. 2010) ...... 16 15 16 Becerra v. Jones, Bell, Abbott, Fleming & Fitzgerald LLP, 2015 WL 881588 (Cal. Ct. App. Feb. 27, 2015) ...... 3 17 Boe v. Fort Belknap Indian Cmty. of Fort Belknap Reservation, 18 642 F.2d 276 (9th Cir. 1981) ...... 24 19 Bosley Med. Inst., Inc. v. Kremer, 20 403 F.3d 672 (9th Cir. 2005) ...... 5 21 Braun v. Chronicle Publ’g Co., 22 52 Cal. App. 4th 1036 (1997) ...... 10, 11

23 Briggs v. Eden Council for Hope & Opportunity, 24 19 Cal. 4th 1106 (1999) ...... 10 25 Chang v. Lederman, 26 172 Cal. App. 4th 67 (2009) ...... 15 27 Chodos v. Cole, 210 Cal. App. 4th 692 (2012) ...... 13 28 MEM. ISO SPECIAL MOTION TO STRIKE ii PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES (continued) 2 Page 3 City of Cotati v. Cashman, 4 29 Cal. 4th 69 (2002) ...... 2 5 Dolinger v. Murphy, 2015 WL 5168667 (Cal. Ct. App. Sept. 3, 2015) ...... 13 6 7 Flores v. Emerich & Fike, 416 F. Supp. 2d 885 (E.D. Cal. 2006) ...... 11 8 Freeman v. Lasky, Haas & Cohler, 9 410 F.3d 1180 (9th Cir. 2005) ...... 23 10 Goldberg v. Frye, 11 217 Cal. App. 3d 1258 (1990) ...... 18, 19 12 Goodman v. Kennedy, 13 18 Cal. 3d 335 (1976) ...... 16

14 Gov. Gray Davis Comm. v. Am. Taxpayers Alliance, 15 102 Cal. App. 4th 449 (2002) ...... 6 16 Graham-Sult v. Clainos, 756 F.3d 724 (9th Cir. 2014) ...... 3, 6 17 18 Grant & Eisenhofer, P.A. v. Brown, 2017 WL 6343506 (C.D. Cal. Dec. 6, 2017) ...... 3, 8, 21 19 Gribow v. Burns, 20 2010 WL 4018646 (Cal. Ct. App. Oct. 14, 2010) ...... 3, 8, 21 21 Hagberg v. Cal. Fed. Bank FSB, 22 32 Cal. 4th 350 (2004) ...... 22 23 Hammond v. Jewell, 24 139 F. Supp. 3d 1134 (E.D. Cal. 2015) ...... 24

25 Heller Ehrman LLP v. Davis Wright Tremaine LLP, 26 4 Cal. 5th 467 (2018) ...... 1 27 Integrated Investigations, Inc. v. O’Donnell, 28 2011 WL 4929421 (Cal. Ct. App. Oct. 18, 2011) ...... 13 MEM. ISO SPECIAL MOTION TO STRIKE iii PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES (continued) 2 Page 3 Kashian v. Harriman, 4 98 Cal. App. 4th 892 (2002) ...... 14 5 Kearney v. Foley & Lardner, LLP, 590 F.3d 638 (9th Cir. 2009) ...... 5 6 7 Ketchum v. Moses, 24 Cal. 4th 1122 (2001) ...... 25 8 Kolar v. Donahue, McIntosh & Hammerton, 9 145 Cal. App. 4th 1532 (2006) ...... 13 10 Kottle v. Nw. Kidney Ctrs., 11 146 F.3d 1056 (9th Cir. 1998) ...... 22, 23 12 Lake Almanor Assocs. L.P. v. Huffman-Broadway Grp., Inc., 13 178 Cal. App. 4th 1194 (2009) ...... 17

14 Loanvest I, LLC v. Utrecht, 15 235 Cal. App. 4th 496 (2015) ...... 13 16 Lucas v. Hamm, 364 P.2d 685 (Cal. 1961) ...... 16 17 18 Maki v. Yanny, 2012 WL 4077571 (Cal. Ct. App. Sept. 18, 2012) ...... 3, 9, 10 19 Martinez v. Metabolife Int’l, Inc., 20 113 Cal. App. 4th 181 (2003) ...... 11 21 Martinez v. Socoma Companies, 22 11 Cal. 3d 394 (1974) ...... 17 23 Martorana v. Marlin & Saltzman, 24 175 Cal. App. 4th 685 (2009) ...... 15, 20

25 Mindys Cosmetics, Inc. v. Dakar, 26 611 F.3d 590 (9th Cir. 2010) ...... 6, 7, 10, 12 27 Moore v. Anderson Zeigler Disharoon Gallagher & Gray, 28 109 Cal. App. 4th 1287 (2003) ...... 19 MEM. ISO SPECIAL MOTION TO STRIKE iv PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES (continued) 2 Page 3 Morales v. Coop. of Am. Physicians, Inc., Mut. Prot. Tr., 4 180 F.3d 1060 (9th Cir. 1999) ...... 21 5 Navellier v. Sletten, 29 Cal. 4th 82 (2002) ...... 2, 11 6 7 Olsen v. Harbison, 191 Cal. App. 4th 325 (2010) ...... 20 8 Pegasus Satellite Television, Inc. v. DirecTV, Inc., 9 318 F. Supp. 2d 968 (C.D. Cal. 2004) ...... 3, 16 10 PrediWave v. Simson Thacher & Bartlett LLP, 11 179 Cal. App. 4th 12042 (2009) ...... 12 12 Quintilone v. Low, 13 2012 WL 420122 (Cal. Ct. App. Feb. 9, 2012) ...... 3, 8, 9, 21

14 Rincon Band of Luiseno Mission Indians of Rincon Reservation v. 15 Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010) ...... 9 16 Roberts v. City of Palmdale, 17 5 Cal. 4th 363 (1993) ...... 3 18 Rubin v. Green, 19 4 Cal. 4th 1187 (1993) ...... 21 20 San Diego Fire Victims Lawyers v. Cmty. Assistance Recovery, Inc., 21 2013 WL 2303690 (Cal. Ct. App. May 23, 2013) ...... 3, 9

22 Slaughter v. Friedman, 23 32 Cal. 3d 149 (1982) ...... 22 24 Solin v. O’Melveny & Myers, LLP, 25 89 Cal. App. 4th 451 (2001) ...... 21 26 Sosa v. DirecTV, Inc., 437 F.3d 923 (9th Cir. 2006) ...... 14, 22, 23 27 28 MEM. ISO SPECIAL MOTION TO STRIKE v PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES (continued) 2 Page 3 Souza v. Westlands Water Dist., 4 135 Cal. App. 4th 879 (2006) ...... 17 5 Sprengel v. Zbylut, 241 Cal. App. 4th 140 (2015) ...... 12, 13 6 7 St. Paul Title Co. v. Meier, 181 Cal. App. 3d 948 (1986) ...... 17 8 Taheri Law Grp. v. Evans, 9 160 Cal. App. 4th 482 (2008) ...... passim 10 Tamman v. Nixon Peabody LLP, 11 2014 WL 4827784 (Cal. Ct. App. Sept. 30, 2014) ...... 3 12 Tanedo v. E. Baton Rouge Par. Sch. Bd., 13 2011 WL 13101417 (C.D. Cal. Oct. 24, 2011) ...... 12

14 Thayer v. Kabateck Brown Kellner LLP, 15 207 Cal. App. 4th 141 (2012) ...... 19 16 The H.N. & Frances C. Berger Found. v. Perez, 218 Cal. App. 4th 37 (2013) ...... 17 17 18 U.S. Bancorp v. Ike, 171 F. Supp. 2d 1122 (D. Nev. 2001) ...... 24 19 Unite Here Local 30 v. Dep’t of Parks & Recreation, 20 194 Cal. App. 4th 1200 (2011) ...... 16 21 United States v. Vasquez-Cruz, 22 692 F.3d 1001 (9th Cir. 2012) ...... 12 23 Zenith Ins. Co. v. O’Connor, 24 148 Cal. App. 4th 998 (2007) ...... 17

25 Statutes 26 Cal. Civ. Code § 47(b) ...... 14, 20 27 Cal. Civ. Proc. Code § 425.16(c)(1) ...... 25 28 MEM. ISO SPECIAL MOTION TO STRIKE vi PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 TABLE OF AUTHORITIES (continued) 2 Page 3 Cal. Civ. Proc. Code § 425.16(e)(2) ...... 6, 10

4 Cal. Civ. Proc. Code § 425.16(e)(4) ...... 6, 7 5 Other Authorities 6 American Bar Association Model Rules Prof. Conduct, Rule 1.13, 7 Comment 9 ...... 19 8 Cal. State Bar Form. Opn. No. 2001-156, available at 9 http://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/2001- 156.htm (last visited Aug. 2, 2018) ...... 19 10 11 Roger C. Cramton, The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 GEO. J. LEGAL ETHICS 291 (1991) ...... 4 12 Treatises 13 Rest. 3d Law Governing Lawyers, § 51, comment f ...... 19 14

15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEM. ISO SPECIAL MOTION TO STRIKE vii PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 I. Introduction 2 Last summer, while negotiating with the State of California to resolve claims 3 relating to a gaming compact, the new leadership of the Quechan Tribe of the Fort 4 Yuma Indian Reservation (“Quechan” or the “Tribe”) made a choice available to 5 anyone facing potential litigation: it changed attorneys. Acting through its duly- 6 elected Tribal Council, Quechan terminated Plaintiff Williams & Cochrane LLP 7 (“W&C”) and retained Defendant Rosette, LLP pursuant to Tribal law. Indignant 8 that its former client had exercised its fundamental “right ‘to sever the professional 9 relationship [with its attorney] at any time and for any reason,’” Heller Ehrman 10 LLP v. Davis Wright Tremaine LLP, 4 Cal. 5th 467, 477 (2018) (citation omitted), 11 W&C filed suit against the Rosette Defendants and the Quechan Defendants, 12 asserting a battery of claims that included interference with contract and 13 prospective business advantage.1 After the Rosette Defendants filed an anti-SLAPP 14 motion demonstrating that W&C was legally barred from pursuing state-law claims 15 based on the Tribe’s protected decision to retain new counsel (Docket No. 31), 16 W&C adopted a different approach: fomenting divisions within Quechan to 17 influence the outcome of an upcoming election and recruiting individual tribal 18 members (the “Individual Plaintiffs”) to assert a putative class claim for 19 professional negligence based on the Tribe’s decision to change counsel. 20 The Rosette Defendants have never represented the Individual Plaintiffs— 21 and, indeed, do not have an attorney-client relationship with individual members of 22 the tribes Rosette, LLP represents. The Second Amended Complaint (“SAC”) does 23 not allege otherwise, and Rosette, LLP’s Attorney Services Contract with Quechan 24 explicitly disclaims any client relationship with or professional responsibilities to 25 individual members of the Tribe. (See Docket No. 54-2, Ex. 2.) Ignoring these

26 1 27 “Rosette Defendants” refers to Robert Rosette; Rosette & Associates, PC; Rosette, LLP; and another member of the Rosette firm, Richard Armstrong. “Quechan 28 Defendants” refers to the remaining defendants. MEM. ISO SPECIAL MOTION TO STRIKE 1 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 facts, the SAC alleges that the Rosette Defendants are still somehow liable to the 2 Individual Plaintiffs because Mr. Rosette “interfere[d]” with W&C’s representation 3 of the Tribe by assuming the representation himself, supposedly hindering the 4 negotiations simply because W&C was no longer involved. (SAC ¶¶ 111–114.) 5 Citing no particular act or omission by Mr. Rosette or his associates, the SAC, like 6 the First Amended Complaint (“FAC”), claims that the mere fact of a change in 7 counsel affected negotiations so dramatically that the gaming compact Quechan 8 eventually signed was less favorable than earlier drafts. (Id.) The Court already 9 rejected this theory as a basis for malpractice liability when it ruled on the Rosette 10 Defendants’ motion to dismiss the FAC. (Docket No. 89 at 36‒37 (“[T]he 11 differences between Quechan’s final compact and W&C’s draft are not stark 12 enough to draw a reasonable inference of negligence by the Rosette Defendants.”).) 13 Plaintiffs repeated the claim in their SAC anyway. (See SAC ¶¶ 234‒239.) 14 The gravamen of the Individual Plaintiffs’ “negligence/breach of fiduciary 15 duty” claim, like W&C’s tortious interference claims before it, is Quechan’s 16 decision to replace W&C with Rosette, LLP, and thus, the claim is still subject to 17 California’s anti-SLAPP statute. Specifically, the claim seeks to undermine “the 18 fundamental right of a client to choose and change his legal representation” and to 19 impose liability for communications in the course of that representation. Taheri 20 Law Grp. v. Evans, 160 Cal. App. 4th 482, 492 (2008). Courts have made clear 21 that whenever protected conduct gives rise to the cause of action, the anti-SLAPP 22 statute applies and no amount of artful pleading or tactical selection of claims can 23 avoid the statute’s application. See, e.g., Navellier v. Sletten, 29 Cal. 4th 82, 89 24 (2002) (looking beyond form of claim to challenged activity). A claim “arises 25 from” protected activity when “the defendant’s act underlying the plaintiff’s cause 26 of action . . . itself” is “an act in furtherance of the right of petition or free speech.” 27 City of Cotati v. Cashman, 29 Cal. 4th 69, 78 (2002). And as both state and federal 28 courts have recognized repeatedly, the conduct underlying the Individual Plaintiffs’ MEM. ISO SPECIAL MOTION TO STRIKE 2 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 state-law claim—retention of new counsel and subsequent legal representation in 2 advance of litigation and in the course of official proceedings and petitioning 3 activity—is protected against third-party tort liability under California’s anti- 4 SLAPP statute.2 5 The Individual Plaintiffs also cannot prevail on the merits of their 6 professional negligence claim because they are neither clients nor intended third- 7 party beneficiaries under the Attorney Services Contract between the Rosette 8 Defendants and Quechan. In the context of the earlier Rule 12 motion, the Court 9 concluded that the Individual Plaintiffs could allege standing to pursue a 10 professional negligence claim. (Docket No. 89 at 35‒36.) The Rosette Defendants 11 respectfully submit that the Individual Plaintiffs cannot carry their burden to 12 demonstrate that they have “a reasonable probability of prevailing” on their claim, 13 Graham-Sult v. Clainos, 756 F.3d 724, 735 (9th Cir. 2014) (quotation and citation 14 omitted), because California law does not permit a third-party beneficiary claim 15 where the contract expressly disavows such a relationship. See Pegasus Satellite 16 Television, Inc. v. DirecTV, Inc., 318 F. Supp. 2d 968, 977 (C.D. Cal. 2004) (“[T]he 17 Court has not found any authority that would allow it to abrogate an express no 18 third-party beneficiary provision”). Moreover, courts and commentators regularly 19 recognize the deleterious effects of allowing any citizen who disagrees with a 20 governmental action to assert a breach of duty by the government’s attorney simply 21 because the engagement might impact the “public interest.” See Roberts v. City of

22 2 23 See, e.g., Grant & Eisenhofer, P.A. v. Brown, 2017 WL 6343506, at *1 (C.D. Cal. Dec. 6, 2017); Gribow v. Burns, 2010 WL 4018646, at *7 (Cal. Ct. App. Oct. 14, 24 2010); Quintilone v. Low, 2012 WL 420122, at *6 (Cal. Ct. App. Feb. 9, 2012); 25 Maki v. Yanny, 2012 WL 4077571, at *5 (Cal. Ct. App. Sept. 18, 2012); San Diego Fire Victims Lawyers v. Cmty. Assistance Recovery, Inc., 2013 WL 2303690, at *5 26 (Cal. Ct. App. May 23, 2013); Tamman v. Nixon Peabody LLP, 2014 WL 4827784, 27 at *3 (Cal. Ct. App. Sept. 30, 2014); Becerra v. Jones, Bell, Abbott, Fleming & Fitzgerald LLP, 2015 WL 881588, at *3 (Cal. Ct. App. Feb. 27, 2015); Taheri, 160 28 Cal. App. 4th at 492. MEM. ISO SPECIAL MOTION TO STRIKE 3 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 Palmdale, 5 Cal. 4th 363, 380 n.5 (1993) (citizen-plaintiff “cite[d] no relevant 2 authority for the proposition that each member of the entire public is the client of 3 the city attorney, and we have found none.”); see also, e.g., Roger C. Cramton, The

4 Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 GEO. J.

5 LEGAL ETHICS 291, 298 (1991) (“[D]efining the government lawyer’s client as the 6 public interest would fail to provide any real guidance in regulating lawyers’ 7 conduct . . . [since] conceptions of the ‘public interest’ vary significantly from one 8 person to the next”). 9 The professional negligence claim will also fail on its merits in light of the 10 strong protections afforded by California’s litigation privilege and the Noerr- 11 Pennington doctrine. Nor will the Individual Plaintiffs be able to show that any act 12 by the Rosette Defendants fell below the applicable standards of care. Under 13 section 425.16, the sixth claim for relief should therefore be struck. 14 II. Relevant Allegations and Facts 15 According to the SAC, Quechan’s dispute with the State of California 16 centered on its 2007 Amended Compact. 17 18 19 20 (SAC ¶¶ 55–57.) 21 22 23 having a “high likelihood of spiraling into federal litigation.” (Id. ¶¶ 57–61, 82, 24 85.) W&C represented Quechan in this dispute from October 2016 until June 2017, 25 when the Tribe terminated W&C and retained Rosette, LLP. 3 (See, e.g., id. ¶ 95.)

26 3 27 Under Quechan’s December 18, 1936, Constitution and By-Laws, the Tribal Council “represent[s] the Quechan Tribe in all affairs” and has the power to 28 “negotiate with Federal, State, and local governments on behalf of the Tribe”; MEM. ISO SPECIAL MOTION TO STRIKE 4 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 Rosette, LLP represented Quechan through the execution and approval of its 2017 2 Compact. (See, e.g., id. ¶ 109.) But even before the 2017 Compact was executed, 3 W&C brought this action against the Rosette Defendants for providing Quechan 4 with legal representation once the Tribe decided to exercise its right to replace its 5 lawyers. 6 The Court has already dismissed the Individual Plaintiffs’ malpractice claim 7 once. (Docket No. 89 at 36‒37.) Yet the SAC, like the FAC, includes over two 8 dozen Individual Plaintiffs, purportedly seeking damages on behalf of a class for 9 “negligence/breach of fiduciary duty,” all because Mr. Rosette allegedly 10 “interfere[d]” with the ongoing negotiations by accepting the representation and 11 engaging in negotiations with the State once Quechan retained him to do so. (SAC 12 ¶¶ 114, 238.) The Individual Plaintiffs continue to claim that the mere fact of 13 Rosette, LLP’s retention caused the State to take a new position in the negotiations 14 (see, e.g., id. ¶ 82), despite the Court’s rejection of this theory of liability. (Docket 15 No. 89 at 36‒37.) The Individual Plaintiffs even cite this lawsuit—instituted by the 16 Tribe’s prior counsel and putative class counsel in this case, W&C—as an adverse 17 consequence of Mr. Rosette’s representation of Quechan. (SAC ¶¶ 186, 238.) 18 III. Argument 19 California’s statute prohibiting strategic lawsuits against public participation 20 “establishes a procedure to expose and dismiss meritless and harassing claims that 21 seek to chill the exercise of petitioning or free speech rights in connection with a 22 public issue.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009) 23 (citing Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005)). The 24 anti-SLAPP statute defines “act[s] in furtherance of a person’s right of petition or 25 free speech . . . in connection with a public issue” to include “any written or oral

26 27 “present and prosecute any claims or demands of the Quechan Tribe”; and to “employ legal counsel for the protection and advancement of the rights of the Tribe 28 . . . . ” (See Ex. 27 to SAC at Art. I; Art. III, Section 6(a), (b), and (d).) MEM. ISO SPECIAL MOTION TO STRIKE 5 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 statement or writing made in connection with an issue under consideration or 2 review by a legislative, executive, or judicial body, or any other official proceeding 3 authorized by law.” Cal. Civ. Proc. Code § 425.16(e)(2). It also protects “any 4 other conduct in furtherance of the exercise of the constitutional right of petition or 5 the constitutional right of free speech in connection with a public issue or an issue 6 of public interest.” Id. § 425.16(e)(4). 7 Anti-SLAPP motions, which are available to defendants facing state-law 8 claims in federal courts, proceed in two steps. See Graham-Sult, 756 F.3d at 735. 9 First, the court assesses whether a “plaintiff’s causes of action ‘arise[] from an act 10 in furtherance of the defendant’s rights of petition or free speech.’” Id. (quoting 11 Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010)). If this 12 showing is made, the burden shifts to the plaintiff to demonstrate “that it has a 13 reasonable probability of prevailing in its claims”. Id. (quotation and citation 14 omitted). If the plaintiff fails to show a reasonable probability of prevailing on the 15 merits, the cause of action must be struck. See Gov. Gray Davis Comm. v. Am. 16 Taxpayers Alliance, 102 Cal. App. 4th 449, 456 (2002). Here, the Individual 17 Plaintiffs’ claim arises from protected activity, and they cannot show a reasonable 18 probability of prevailing on the merits. 19 A. The Individual Plaintiffs’ State-Law Claim Triggers the Anti-SLAPP Statute’s Protection Because It Arises from Protected 20 Conduct 21 The Individual Plaintiffs’ state-law claim arises from protected activity 22 because the conduct underlying their claim falls squarely within the ambit of the 23 anti-SLAPP statute: 24 • Quechan’s termination of W&C; 25 • Quechan’s retention of the Rosette Defendants; and 26 • Quechan’s (or its attorneys’) communications involving the resolution of 27 potential litigation, official proceedings, and executive actions with the 28 State. MEM. ISO SPECIAL MOTION TO STRIKE 6 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 It is beyond dispute that California’s anti-SLAPP statute broadly protects 2 lawyers’ communications with clients and potential clients, inside and outside of 3 litigation, against claims by third parties, including malpractice claims. See, e.g., 4 Mindys Cosmetics, 611 F.3d at 600. Because the Rosette Defendants’ retention by, 5 and communications with and on behalf of, the Tribe concern at least three 6 independent provisions of the anti-SLAPP statute—a negotiation with the 7 California executive branch, a pending official proceeding, and a threat of litigation 8 under section 425.16(e)(2)—those communications are protected.4 And because 9 the Individual Plaintiffs’ claim for professional negligence is premised on those 10 protected activities, their claim is subject to the anti-SLAPP statute. 11 1. The Anti-SLAPP Statute Protects Attorneys’ Communications Related to Client Representation, 12 Threatened Litigation, and Official Proceedings 13 The Individual Plaintiffs’ malpractice claim is based solely on Quechan’s 14 retention of Rosette, LLP and the bare fact that Rosette, LLP negotiated on 15 Quechan’s behalf with the State. (See SAC ¶ 238.) Specifically, the Individual 16 Plaintiffs allege (incorrectly) that because Rosette, LLP was retained and W&C was 17 fired, the State “claw[ed] back on agreed-upon concessions at the last minute as a 18 result of the firm switch.” (SAC ¶ 5; see also id. ¶ 111.) But whether the 19 Individual Plaintiffs seek to base their state-law claim on the Rosette Defendants’ 20 retention by or communications with Quechan, or their communications with the 21 State on behalf of Quechan, the anti-SLAPP statute protects those communications. 22 Solicitation of and advice to clients, even where a representation is new or 23 displaces existing counsel, is protected conduct under California’s anti-SLAPP 24 statute. The seminal case on the subject, Taheri, 160 Cal. App. 4th 482, 25 demonstrates the bedrock principle. There, the Taheri Law Group sued attorney

26 4 27 It also constitutes protected activity pursuant to section 425.16(e)(4), “conduct. . . in connection with a public issue or an issue of public interest.” Cal. Civ. Proc. 28 Code § 425.16(e)(4). MEM. ISO SPECIAL MOTION TO STRIKE 7 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 Neil C. Evans, alleging that Evans tortiously interfered with Taheri’s contract and 2 prospective economic advantage with its client, Alexander Sorokurs, by soliciting 3 and assuming his legal representation. Id. at 485. The Taheri court found Evans’s 4 conduct to be easily within the anti-SLAPP statute’s protection and subject to the 5 litigation privilege, barring any claims by Taheri against Evans for his conduct in 6 either soliciting or advising Sorokurs as a client. Id. at 486. Any other conclusion 7 “would conflict with the client’s fundamental right of access to the courts, which 8 necessarily includes the right to be represented by the attorney of his or her choice.” 9 Id. at 490. 10 A multitude of subsequent cases in federal and state court have applied 11 Taheri’s reasoning to conclude that an attorney’s direct solicitation of a client and 12 that attorney’s subsequent legal advice are per se protected conduct against third- 13 party tort claims: 14 • In Grant & Eisenhofer, P.A. v. Brown, 2017 WL 6343506 (C.D. Cal. Dec. 15 6, 2017), the Honorable Philip S. Gutierrez reiterated the principle that 16 “[u]nder the plain language of section 425.16 . . . as well as the case law 17 interpreting those provisions, all communicative acts performed by 18 attorneys as part of their representation of a client in a judicial proceeding 19 or other petitioning context are per se protected as petitioning activity by 20 the anti–SLAPP statute.” Id. at *4 (quotation and citation omitted). 21 • In Gribow v. Burns, 2010 WL 4018646, at *6–7 (Cal. Ct. App. Oct. 14, 22 2010), the California Court of Appeal affirmed the grant of an anti-SLAPP 23 motion concerning claims based on a lawyer’s solicitation of a former 24 partner’s clients, finding these communications absolutely protected and 25 concluding that the plaintiff had no probability of prevailing on the merits 26 in light of the applicable litigation privilege. Id. at *8, 11. 27 • In Quintilone v. Low, 2012 WL 420122, at *6 (Cal. Ct. App. Feb. 9, 2012), 28 the California Court of Appeal explained that “ample authority” protected MEM. ISO SPECIAL MOTION TO STRIKE 8 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 an attorney’s communications “advising a prospective client on pending 2 litigation,” even where that advice “included recommending [another 3 lawyer’s] discharge and related actions.” Id. (quotation and citation 4 omitted). 5 • Similarly, the court in Maki v. Yanny, 2012 WL 4077571, at *5 (Cal. Ct. 6 App. Sept. 18, 2012), explained that “Taheri stands for the not-so- 7 surprising proposition that a second lawyer’s advice to a client, even when 8 that client is already represented by another attorney concerning pending or 9 prospective litigation, is protected activity subject to a special motion to 10 strike under section 425.16.” Id. at *4. 11 • And the court in San Diego Fire Victims Lawyers v. Cmty. Assistance 12 Recovery, Inc., 2013 WL 2303690, at *5 (Cal. Ct. App. May 23, 2013), 13 affirmed the striking of unfair business practices claims, holding that “a 14 complaint alleging improper solicitation of another attorney’s client in a 15 pending litigation by promising a more favorable outcome in the litigation 16 is subject to the protections of the anti-SLAPP . . . .” 17 The Rosette Defendants’ communications with both Quechan and the State 18 are protected because they relate to threatened litigation. The federal Indian 19 Gaming Regulatory Act (“IGRA”) requires states to negotiate with tribes about 20 gaming rights in good faith and authorizes federal courts to police non-compliance. 21 See Rincon Band of Luiseno Mission Indians of Rincon Reservation v. 22 Schwarzenegger, 602 F.3d 1019, 1026‒30 (9th Cir. 2010) (distinguishing compact 23 negotiations from “voluntary” commercial contract negotiations). “If a court finds 24 that a state has failed to negotiate in good faith, IGRA empowers the court to order 25 additional negotiations and, if necessary, to order the parties into mediation in 26 which a compact will be imposed.” Id. Given the structure of these compulsory 27 negotiations, the specter of litigation looms large. Here, litigation was not just in 28 the background of the negotiations; there was “a high likelihood of spiraling into MEM. ISO SPECIAL MOTION TO STRIKE 9 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 federal litigation.” (SAC ¶ 61.) Under the anti-SLAPP statute, communications 2 related to threatened litigation are protected, even if no complaint has been filed. 3 See, e.g., Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1115 4 (1999) (anti-SLAPP statute applies to “communications preparatory to or in 5 anticipation of the bringing of an action or other official proceeding”); see also 6 Maki, 2012 WL 4077571, at *3 (“[p]relitigation communications are covered as 7 well, if litigation is contemplated in good faith and under serious consideration”) 8 (quotation and citation omitted); Taheri, 160 Cal. App. 4th at 489 (noting that 9 dispute over client stealing arose after global settlement was reached in previously 10 pending litigation). 11 The communications underlying the Individual Plaintiffs’ claim are also 12 protected because they relate to Quechan’s engagement in official negotiations with 13 California’s executive branch pursuant to IGRA. As the SAC alleges, compact 14 negotiations are carried out by the California Attorney General’s Office on behalf 15 of the Governor and announced in press releases by the Governor himself. (SAC ¶¶ 16 4–5.) As a result, compact negotiations constitute communications “made in 17 connection with an issue under consideration or review by a[n] . . . executive . . . 18 body[.]” Cal. Civ. Proc. Code § 425.16(e)(2). Compact negotiations also qualify 19 as “official proceedings” because they are “government-sponsored and provided for 20 by statute,” i.e., IGRA. Braun v. Chronicle Publ’g Co., 52 Cal. App. 4th 1036, 21 1049 (1997) (finding state audits to be “official proceedings”); see also Mindys 22 Cosmetics, 611 F.3d at 596 (distinguishing “official’ proceedings, which are 23 protected,” from “mere ‘ministerial’ business communications, which are not”). 24 Thus, under California’s anti-SLAPP statute, Quechan was engaged in an official 25 proceeding authorized by law and communicating about an issue under 26 consideration by the executive branch—negotiations that the State was required to 27 carry out under federal law. Quechan’s conversations and correspondence with the 28 Rosette Defendants, and the Rosette Defendants’ conversations and correspondence MEM. ISO SPECIAL MOTION TO STRIKE 10 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 with the State, are therefore protected and cannot give rise to liability claims under 2 state law. 3 2. California’s Anti-SLAPP Statute Protects the Rosette Defendants’ Communications, Regardless of How the 4 Individual Plaintiffs Label Their Claim 5 As the history of this case shows, the Individual Plaintiffs’ claim is pretext, 6 engineered by W&C to avoid the anti-SLAPP statute. In response to anti-SLAPP 7 motions addressed to its original complaint, W&C recruited the Individual 8 Plaintiffs and repackaged W&C’s prior tort claims as a claim for attorney 9 malpractice. (See Docket No. 43 at 18 (“[T]he claim these tribal members seek to 10 file ties back to general allegations in the original complaint”).) The title of a 11 plaintiff’s claim, however, does not determine whether the anti-SLAPP statute 12 applies. The statute applies whenever “the cause of action is based on the 13 defendant’s protected free speech or petitioning activity.” Navellier, 29 Cal. 4th at 14 89 (emphasis in original). Courts look to “the principal thrust or gravamen of the 15 plaintiff’s cause of action.” Martinez v. Metabolife Int’l, Inc., 113 Cal. App. 4th 16 181, 188 (2003) (emphasis in original). Thus, “[t]he anti-SLAPP statute’s 17 definitional focus is not the form of the plaintiff’s cause of action but . . . the 18 defendant’s activity that gives rise to his or her asserted liability—and whether that 5 19 activity constitutes protected speech or petitioning.” Navellier, 29 Cal. 4th at 92. 20 Here, the Individual Plaintiffs seek to hold the Rosette Defendants liable for 21 representing Quechan and negotiating with the State, not for any particular action or 22 inaction that violated a professional duty or fell below any standard of professional 23

24 5 See also Flores v. Emerich & Fike, 416 F. Supp. 2d 885, 897 (E.D. Cal. 2006) 25 (“The trial court must instead focus on the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to strike.”); Braun, 52 Cal. App. 4th at 26 1043 (“A defendant meets this burden by demonstrating that the act underlying the 27 plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)”). 28 MEM. ISO SPECIAL MOTION TO STRIKE 11 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 care. 2 The Ninth Circuit squarely addressed this situation when it held in Mindys 3 Cosmetics that California’s anti-SLAPP statute applies to malpractice claims 4 asserted by non-clients. Mindys Cosmetics, 611 F.3d at 594. In that case, the 5 plaintiffs asserted both malpractice and breach-of-fiduciary-duty claims against 6 their opponent’s attorney based on his filing of a trademark application. Id. at 596. 7 In response to the defendant-attorney’s anti-SLAPP motion, the plaintiffs argued 8 that malpractice claims fall outside the anti-SLAPP statute’s operation. Id. at 597. 9 The Ninth Circuit disagreed, holding that “there is no categorical exclusion of 10 claims of attorney malpractice from the anti-SLAPP statute.” Id. at 598. Analyzing 11 the first prong of the anti-SLAPP statute and finding it satisfied, the court reasoned 12 that “[n]othing in the statute itself categorically excludes any particular type of 13 action from its operation” and found that the challenged conduct—filing a 14 trademark application in the name of other defendants—was protected activity 15 under section 425.16. Id. (citation omitted).6 The challenged conduct was “activity 16 that the anti-SLAPP statute paradigmatically protects: one cannot sue his 17 opponent’s attorney for petitioning actions taken on that opponent’s behalf.” 18 Tanedo v. E. Baton Rouge Par. Sch. Bd., 2011 WL 13101417, at *3 (C.D. Cal. Oct. 19 24, 2011); accord PrediWave, 179 Cal. App. 4th at 1222 (explaining that third- 20 party malpractice claims seeking to impose liability on protected conduct are 21

22 6 The Ninth Circuit’s holding in Mindys Cosmetics that there is no exemption from 23 the anti-SLAPP statute for malpractice claims is binding here. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1006 (9th Cir. 2012) (“[A] published decision of this 24 court constitutes binding authority which must be followed unless and until 25 overruled by a body competent to do so.”) (quotation and citation omitted). Although California’s intermediate appellate courts have not spoken with one voice 26 on the subject, the weight of state authority also recognizes that malpractice claims 27 are not categorically exempt from the anti-SLAPP motions when brought by non- clients. PrediWave v. Simson Thacher & Bartlett LLP, 179 Cal. App. 4th 12042, 28 1222 (2009); but see Sprengel v. Zbylut, 241 Cal. App. 4th 140 (2015). MEM. ISO SPECIAL MOTION TO STRIKE 12 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 subject to anti-SLAPP). 2 Like the plaintiffs in Mindys Cosmetics, the Individual Plaintiffs do not 3 allege that they are the Rosette Defendants’ clients. (See infra Section III.B.1.) 4 That the Individual Plaintiffs claim to be beneficiaries of Rosette, LLP’s Attorney 5 Services Contract with Quechan is irrelevant to the anti-SLAPP statute’s first 6 prong. Mindys Cosmetics forecloses any argument to the contrary, and the majority 7 of California courts also agree that when a “third party su[es] an attorney for 8 petitioning activity, which clearly could have a chilling effect,” the anti-SLAPP 9 statute applies. Kolar v. Donahue, McIntosh & Hammerton, 145 Cal. App. 4th 10 1532, 1540 (2006) (distinguishing malpractice claims by current or former clients 11 based on quality of services rendered or violation of professional duties). “It has 12 been stated that acts by attorneys when they have not represented the plaintiff are 13 subject to the anti-SLAPP statute.” Chodos v. Cole, 210 Cal. App. 4th 692, 704 14 (2012); accord Dolinger v. Murphy, 2015 WL 5168667, at *4 (Cal. Ct. App. Sept. 15 3, 2015) (“Thus, when a plaintiff sues someone else’s lawyer for litigation-related 16 conduct, the anti-SLAPP statute applies if the gravamen of the plaintiff’s claim is 17 that litigation.”); Loanvest I, LLC v. Utrecht, 235 Cal. App. 4th 496, 504 (2015) 18 (“[A] claim for injuries suffered by adversaries or other nonclients resulting from 19 an attorney’s acts in the course of litigation is based on protected activity and 20 within the scope of the anti-SLAPP statute”).7 21 7 While the Individual Plaintiffs might seek to rely on Sprengel for the proposition 22 that client relationships cannot be determined on the first step of anti-SLAPP 23 analysis, that case is inconsistent with Mindys Cosmetics, which is controlling, and the reasoning in PrediWave, Chodos, Thayer, Peregrine, and their progeny. 24 Sprengel is also distinguishable because it was brought by a plaintiff asserting she 25 was a former client. 241 Cal. App. 4th at 148 (“Sprengel had ‘allege[d] the existence of an attorney-client relationship between her and [defendants]’”) 26 (alterations in original). Here, the Individual Plaintiffs do not allege that they had 27 an attorney-client relationship with the Rosette Defendants at any time. See also Integrated Investigations, Inc. v. O’Donnell, 2011 WL 4929421, at *11 (Cal. Ct. 28 App. Oct. 18, 2011) (“The fact that plaintiffs allege that [the attorney], in MEM. ISO SPECIAL MOTION TO STRIKE 13 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 B. The Individual Plaintiffs Cannot Prevail on the Merits 2 Under the anti-SLAPP statute’s second prong, the Individual Plaintiffs must 3 not only come forward with admissible evidence to make a prima facie showing for 4 their claim (which they cannot do); they must overcome applicable defenses and 5 privileges. See, e.g., Kashian v. Harriman, 98 Cal. App. 4th 892, 926–27 (2002) 6 (finding failure to show reasonable probability of success on the merits based on 7 defensive privileges). As an initial matter, the Individual Plaintiffs’ claim fails 8 because they are neither the Rosette Defendants’ clients nor the intended 9 beneficiaries of the Attorney Services Contract. Nor will the Individual Plaintiffs 10 be able to show that any act or omission by the Rosette Defendants constituted a 11 breach of professional obligations. Additionally, for the same reasons that the 12 Rosette Defendants’ communications with Quechan and the State are protected by 13 California’s anti-SLAPP statute, those communications fall within the absolute 14 privilege against liability afforded to communications about official proceedings 15 and potential litigation. See Cal. Civ. Code § 47(b). These communications are 16 similarly protected by the U.S. Constitution and the Noerr Pennington doctrine and 17 cannot serve as a basis for liability. See Sosa v. DirecTV, Inc., 437 F.3d 923, 934– 18 35 (9th Cir. 2006) (Noerr-Pennington protects “conduct incidental” to petitioning 19 activity). Accordingly, Plaintiffs’ sixth claim for relief is properly struck. 20 1. The Individual Plaintiffs’ Claim Fails Because They Are Neither the Rosette Defendants’ Clients Nor Intended Third- 21 Party Beneficiaries of the Attorney Services Contract 22 The Individual Plaintiffs cannot prevail on the merits of their claim because 23 they cannot demonstrate with admissible evidence a prima facie showing of its

24 25 representing the County, also violated duties owed to them, does not take their complaint outside the ambit of section 425.16. Their characterization of [the 26 attorney’s] actions as professional negligence does not alter the fact that those 27 actions were taken as part of her representation of the County.”). Styling their claim as one for “negligence/breach of fiduciary duty” related to professional 28 obligations (or “malpractice”) does not change the anti-SLAPP analysis. MEM. ISO SPECIAL MOTION TO STRIKE 14 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 necessary elements. To maintain a claim for professional negligence (or 2 malpractice), a plaintiff must demonstrate: “(1) the duty of the attorney to use such 3 skill, prudence, and diligence as members of his or her profession commonly 4 possess and exercise; (2) a breach of that duty; (3) a proximate causal connection 5 between the breach and the resulting injury; and (4) actual loss or damage resulting 6 from the attorney’s negligence.” Martorana v. Marlin & Saltzman, 175 Cal. App. 7 4th 685, 693 (2009) (quotation and citation omitted). 8 The Individual Plaintiffs do not have an attorney-client relationship with the 9 Rosette Defendants and cannot show that they are owed a duty under California 10 law. Rosette, LLP’s Attorney Services Contract with Quechan, executed in 11 connection with the California compact dispute, affirmatively limits the Rosette 12 Defendants’ representation to the Tribe, as an entity, and excludes any other 13 individuals: 14 [T]he Tribe should be aware that the Firm’s representation is with the Tribe and not with its individual 15 members, officers, executives, shareholders, directors, partners, or persons in similar positions, or with its 16 agencies, parent, subsidiaries, or other affiliates. In those cases, the Firm’s professional responsibilities are owed 17 only to that entity, alone, and no conflict of interest will be asserted by the Tribe because we represent persons 18 with respect to interests that are adverse to individual persons or business organizations who have a relationship 19 with the tribe. Of course, Firm can also represent individual members, officers, directors, shareholders, 20 partners, and other persons related to the Tribe in matters that do not conflict with the interests of the Tribe, but any 21 such representation will be the subject of a separate engagement letter. 22 23 (See Docket No. 54-4, Ex. 2 at Section 2, emphasis added.) As the Court previously 24 observed, “[t]his document makes clear that the Rosette Defendants did not 25 represent the Tribe’s individual members.” (Docket No. 89 at 35.) 26 Nor can the Individual Plaintiffs establish any duty by the Rosette 27 Defendants. “The traditional rule in California, as in other jurisdictions, was an 28 attorney could be held liable only to his or her client with respect to actions based MEM. ISO SPECIAL MOTION TO STRIKE 15 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 on professional negligence.” Chang v. Lederman, 172 Cal. App. 4th 67, 76 (2009). 2 Limited exceptions to the traditional rule developed over time, primarily in the 3 context of wills and trust, where a direct, identifiable beneficiary is involved. As 4 this Court previously recognized, liability to third parties not in privity with a 5 defendant is assessed by weighing: (1) the extent to which a transaction was 6 intended to affect the third party; (2) foreseeability of harm; (3) degree of certainty 7 of injury; (4) nexus between the defendants’ conduct and the plaintiff’s injury; and 8 (5) the policy of preventing future harm. (Docket No. 89 at 35, citing Lucas v. 9 Hamm, 364 P.2d 685 (Cal. 1961).) The assessment of these factors is unique in the 10 attorney-client context because of the ethical implications of providing third parties 11 with standing to second guess and regulate someone else’s attorney. Critically, the 12 California Supreme Court has been particularly concerned about extending liability 13 that will place an undue burden on the profession or otherwise risk interfering with 14 an attorney’s performance of his or her ethical duties. See Lucas, 364 P.2d at 688; 15 see also Goodman v. Kennedy, 18 Cal. 3d 335, 342 (1976) (attorney’s duty to non- 16 clients depends on “a judicial weighing of the policy considerations for and against 17 the imposition of liability under the circumstances”). 18 An attorney cannot be liable to a third party where, as here, the contract’s 19 unequivocal terms explicitly disavow any obligations to third parties. See Balsam 20 v. Tucows Inc., 627 F.3d 1158, 1161–63 (9th Cir. 2010) (applying California law to 21 hold that where the contract includes an explicit denial of third party rights, and no 22 specific provision to “benefit a third person appears from the terms of the contract,” 23 a claim to third-party beneficiary status must fail); Pegasus Satellite Television, 318 24 F. Supp. 2d at 977 (same).8 This rule follows from the requirement that third-party 25 8 The Individual Plaintiffs also are neither “creditor beneficiaries” nor “donee 26 beneficiaries,” the only two categories of third-party beneficiaries under California 27 law. See Unite Here Local 30 v. Dep’t of Parks & Recreation, 194 Cal. App. 4th 1200, 1215 (2011) (“In California, as elsewhere, third party beneficiaries are 28 categorized as either creditor beneficiaries or donee beneficiaries.”). MEM. ISO SPECIAL MOTION TO STRIKE 16 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 liability can exist only where a “third party is the intended beneficiary of the 2 attorney’s services, or the foreseeability of harm to the third party as a consequence 3 of professional negligence is not outweighed by other policy considerations.” St. 4 Paul Title Co. v. Meier, 181 Cal. App. 3d 948, 951 (1986). To determine whether a 5 contract was made to benefit a third party, courts ask “whether an intent to benefit a 6 third person appears from the terms of the contract.” Souza v. Westlands Water 7 Dist., 135 Cal. App. 4th 879, 891 (2006). “Intent is to be inferred, if possible, 8 solely from the language of the written contract.” The H.N. & Frances C. Berger 9 Found. v. Perez, 218 Cal. App. 4th 37, 44 (2013). Even if it is evident that a 10 transaction “could incidentally benefit the claimant,” there is no duty absent express 11 intention by both Quechan and Rosette, LLP that the Individual Plaintiffs were “the 12 [intended] beneficiar[ies] of legal services” that Rosette, LLP “was to render.” 13 Zenith Ins. Co. v. O’Connor, 148 Cal. App. 4th 998, 1008 (2007) (quotation and 14 citation omitted). 15 Applying these rules, courts routinely deny citizens’ claims to third-party 16 beneficiary status relative to government contracts in the absence of express 17 contract terms conferring that status. “Government contracts often benefit the 18 public, but individual members of the public are treated as incidental beneficiaries 19 unless a different intention is manifested.” Lake Almanor Assocs. L.P. v. Huffman- 20 Broadway Grp., Inc., 178 Cal. App. 4th 1194, 1201 (2009); see also Martinez v. 21 Socoma Companies, 11 Cal. 3d 394, 401 (1974) (while a government may endow 22 rights upon third parties “by including provisions in its contracts which expressly 23 confer on a specified class of third persons a direct right to benefits, or damages in 24 lieu of benefits, against the [contracting party],” in the absence of express intent, 25 third-party beneficiary status will not be inferred). Simply put, there is no direct 26 interest where the individual members of an organization or association hope to 27 attain some financial advantage from a transaction negotiated on behalf of the 28 organization as a whole. See, e.g., Aragon v. Pappy, Kaplon, Vogel & Phillips, 214 MEM. ISO SPECIAL MOTION TO STRIKE 17 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 Cal. App. 3d 451, 464 (1989) (union member “only an indirect beneficiary of the 2 negotiated, enforced agreement” entered into on union’s behalf). 3 These binding judicial decisions are well grounded in sound public policy 4 considerations. “Responsible representation of a city, county or other governmental 5 unit will improve the lot of its citizens and employees,” but the benefits the citizens 6 recoup are only incidental. Goldberg v. Frye, 217 Cal. App. 3d 1258, 1268 (1990). 7 “[A]n incidental benefit does not suffice to impose a duty upon the attorney.” Id. at 8 1268‒69. 9 Weighing the burdens on the profession and on attorneys’ ethical obligations 10 also militates against extending a duty here. The Rosette Defendants were engaged 11 by the Tribe, a sovereign entity. Their duties and obligations run to that entity. To 12 extend the Rosette Defendants’ professional obligations to each individual member, 13 in the face a contract that specifically precludes doing so, would be a vast and 14 unprecedented expansion of an attorney’s duty under California law and would 15 present insurmountable ethical obligations for any attorney representing a 16 governmental entity. The conflict and confidentiality implications alone are 17 staggering, as any dispute between an elected government’s objectives and those of 18 a segment of its constituents would create a conflict of interest if the attorney owed 19 duties to all. This case underscores that point: some Quechan members favor W&C 20 and its litigation-oriented approach to negotiations with the State, while other 21 Quechan members embraced a different approach. If Quechan’s counsel were to 22 owe each faction its own duty of loyalty—one that could be separately enforced by 23 individual members—the Tribe would never be able to retain counsel for 24 controversial matters, and counsel would constantly face lawsuits by individuals 25 who believed the Tribal Council was proceeding down the wrong course. 26 This is precisely why California’s State Bar explains that “an attorney for a 27 governmental entity usually has only one client, namely, the entity itself, which acts 28 through constituent sub-entities and officials . . . [t]hus, no conflict for the MEM. ISO SPECIAL MOTION TO STRIKE 18 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 governmental attorney is created by a disagreement between a government entity 2 and its constituents, or between constituents of the entity.” Cal. State Bar Form. 3 Opn. No. 2001-156, available at http://www.calbar.ca.gov/Portals/0/documents/ 4 ethics/Opinions/2001-156.htm (last visited Aug. 2, 2018).9 It is also why courts 5 have been circumspect about expanding attorneys’ professional duties beyond the 6 parties in privity; exceptions to the privity rule are extraordinarily narrow, and they 7 should not be extended here. See, e.g., Moore v. Anderson Zeigler Disharoon 8 Gallagher & Gray, 109 Cal. App. 4th 1287, 1301 (2003) (“Threat of . . . liability 9 [to non-clients] would tend to discourage lawyers from following client instructions 10 adversely affecting third persons.” (quoting Rest. 3d Law Governing Lawyers, § 51, 11 comment f)). 12 For the foregoing reasons, the Individual Plaintiffs cannot show that they 13 have a probability of succeeding on the duty element of their claim. Without a 14 duty, no liability can attach. Goldberg, 217 Cal. App. 3d at 1267; see also Thayer 15 v. Kabateck Brown Kellner LLP, 207 Cal. App. 4th 141, 159 (2012) (non-client did 16 not show probability of prevailing on the merits based on conduct by attorney). 17 2. The Individual Plaintiffs Also Cannot Succeed on the Merits Because They Cannot Identify an Act or Omission that 18 Violated Standards of Professional Conduct 19 Plaintiffs also fail to identify a breach of any duty, instead referring vaguely 20 to aspects of the final Quechan Compact that they believe W&C would have 21 negotiated differently and citing this very litigation as evidence of damages. (See 22 SAC ¶ 238.) As the Court has already found, the Individual Plaintiffs’ allegations 23 are insufficient to maintain a malpractice claim, even if an attorney-client or 24 intended third-party beneficiary relationship existed. (Docket No. 89 at 37‒38.) 25 This is because the allegations do nothing to demonstrate that the counsel provided

26 9 27 See also American Bar Association Model Rules Prof. Conduct, Rule 1.13, Comment 9, (requiring that lawyers representing governmental organizations act on 28 behalf of “the organization acting through its duly authorized constituents.”). MEM. ISO SPECIAL MOTION TO STRIKE 19 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 to Quechan “was so legally deficient when it was given that [their lawyers] may be 2 found to have failed to use such skill, prudence, and diligence as lawyers of 3 ordinary skill and capacity commonly possess and exercise in the performance of 4 the tasks which they undertake.” Martorana, 175 Cal. App. 4th at 693. 5 The Court previously found that “[t]he FAC does not point to any conduct by 6 the Rosette Defendants suggesting their representation fell below the appropriate 7 standard of care.” (Docket No. 89 at 36.) The same is true of the SAC. According 8 to W&C, “the only material difference . . . lies in what the State took away” (id. ¶ 9 111), and, again according to W&C, the State changed its position “simply because 10 it was suddenly facing off with” a different firm. (Id.; see also id. ¶ 5 (alleging that 11 Mr. Rosette “was abused by a State negotiator” who supposedly gave up 12 undocumented concessions “as a result of the firm switch”). The SAC also refers to 13 a “total repudiation” of W&C’s Attorney-Client Fee Agreement with Quechan, 14 citing the fees Quechan has incurred in this lawsuit as evidence of malpractice and 15 referring to a purported desire to “abuse the finances of the [T]ribe.” (SAC ¶ 238.) 16 However, the Individual Plaintiffs fail to identify any specific action or inaction by 17 Mr. Rosette or his colleagues that allegedly fell below professional standards. 18 3. The Rosette Defendants’ Communications with Quechan and the State Are Immune from Liability Under Civil Code 19 Section 47(b) and the Noerr-Pennington Doctrine 20 Separately, California Civil Code section 47(b) immunizes all 21 communications made in a “(1) legislative proceeding, (2) judicial proceeding, (3) 22 in any other official proceeding authorized by law.” Cal. Civ. Code § 47(b). This 23 privilege is so broad that it “immunizes defendants from virtually any tort liability 24 (including claims for fraud), with the sole exception of causes of action for 25 malicious prosecution.” Olsen v. Harbison, 191 Cal. App. 4th 325, 333 (2010). To 26 give effect to its intended scope, the privilege applies to any communication with 27 “some connection or logical relation” to the action or official proceeding that forms 28 the basis for the privilege. Action Apartment Ass’n, Inc. v. City of Santa Monica, MEM. ISO SPECIAL MOTION TO STRIKE 20 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 41 Cal. 4th 1232, 1241 (2007). “Moreover, any doubt as to whether the privilege 2 applies is resolved in favor of applying it.” Morales v. Coop. of Am. Physicians, 3 Inc., Mut. Prot. Tr., 180 F.3d 1060, 1062 (9th Cir. 1999). Lawyers’ 4 communications directly soliciting clients are also absolutely privileged under 5 section 47(b) when third parties seek to impose tort liability, Rubin v. Green, 4 Cal. 6 4th 1187, 1194–96 (1993), as are their communications following retention. 7 Gribow, 2010 WL 4018646, at *11. 8 For the same reason that the Individual Plaintiffs’ claim arises from protected 9 communications—those between Quechan and the Rosette Defendants, and the 10 Rosette Defendants and the State, that by their very nature concerned Quechan’s 11 legal representation, the disputed California negotiations, and potential litigation— 12 the challenged communications are protected by California’s litigation privilege. 13 And where, as here, litigants seek to build tort claims on protected client 14 solicitations, advice to clients, and communications in the course of representing 15 those clients, those claims are destined to fail and are appropriately struck under the 16 anti-SLAPP statute. See, e.g., Grant & Eisenhofer, 2017 WL 6343506, at *6–7 17 (plaintiff had no likelihood of prevailing under second prong of anti-SLAPP 18 analysis due to litigation privilege); Gribow, 2010 WL 4018646, at *4, 11 (same); 19 Quintilone, 2012 WL 420122, at *7 (same). Because the Individual Plaintiffs’ 20 state-law claim is necessarily based on communications between lawyers (the 21 Rosette Defendants) and their client (Quechan), and between lawyers (the Rosette 22 Defendants) and parties in an adverse posture (the State), “the litigation privilege 23 applies.” Grant & Eisenhofer, 2017 WL 6343506, at *6. 24 Additionally, to the extent that the Individual Plaintiffs seek to pursue their 25 claim based on any advice that the Rosette Defendants gave to Quechan in 26 connection with its rights and obligations under W&C’s Attorney-Client Fee 27 Agreement or the California compact dispute, that advice is privileged and cannot 28 be used to prove Plaintiffs’ case. See, e.g., Solin v. O’Melveny & Myers, LLP, 89 MEM. ISO SPECIAL MOTION TO STRIKE 21 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 Cal. App. 4th 451, 458 (2001) (“[U]nless a statutory provision removes the 2 protection afforded by the attorney-client privilege to confidential communications 3 between attorney and client, an attorney plaintiff may not prosecute a lawsuit if in 4 doing so client confidences would be disclosed.”). 5 The communications are also protected under the “official proceedings” 6 element of section 47 because official proceedings have been found to occur when 7 communications are with a government branch “acting in an official capacity.” See 8 Slaughter v. Friedman, 32 Cal. 3d 149, 155–56 (1982). The “official proceedings” 9 privilege extends to “communications in preparation of an official proceeding.” 10 1901 First St. Owner, LLC v. Tustin Unified Sch. Dist., 2017 WL 5185147, at *6 11 (Cal. Ct. App. Nov. 9, 2017); see also Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 12 350, 360 (2004) (“We have explained that the absolute privilege established by 13 section 47(b) serves the important public policy of assuring free access to the courts 14 and other official proceedings.”). Thus, because the Rosette Defendants’ 15 communications with Quechan and the State are subject to an absolute privilege 16 and cannot give rise to liability under California law, the Individual Plaintiffs 17 cannot prevail on their state-law claim. 18 The Individual Plaintiffs also cannot prevail on the merits of their claim 19 because it is barred by the Noerr-Pennington doctrine. “Under the Noerr- 20 Pennington doctrine, those who petition any department of the government for 21 redress are generally immune from statutory liability for their petitioning conduct.” 22 Sosa, 437 F.3d at 929. Like section 47, it protects “conduct incidental” to a lawsuit 23 or executive proceeding, id. at 934‒35, but it also protects efforts that seek to 24 influence official decisions of the executive and legislative branches. See, e.g., 25 Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir. 1998) (Noerr-Pennington 26 protects any “activity in the form of lobbying or advocacy before any branch of 27 either federal or state government.”). While the First Amendment petition right 28 belongs to the client-party originally, “their employees, law firms and lawyers, as MEM. ISO SPECIAL MOTION TO STRIKE 22 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 their agents in that litigation, get to benefit as well.” Freeman v. Lasky, Haas & 2 Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005). 3 Negotiating with the executive branch to secure more favorable treatment 4 and avoid litigation is quintessential conduct in furtherance of petitioning activities. 5 See, e.g., Kottle, 146 F.3d at 1059 (discussing lobbying of state administrative 6 agencies); Sosa, 437 F.3d at 936 (“Restricting such prelitigation conduct when the 7 same demands asserted in a petition to the court [are] protected would render the 8 entire litigation process more onerous, imposing a substantial burden on a party’s 9 ability to seek redress from the courts.”). Plaintiffs allege that Mr. Rosette 10 communicated with Quechan about a fully ripened compact dispute with the State 11 of California and litigation strategy, and then communicated with the State about 12 that dispute. Those communications “must be protected to afford breathing space 13 to the right of petition guaranteed by the First Amendment.” Sosa, 437 F.3d at 933. 14 Consequently, under binding Ninth Circuit case law, no liability can attach without 15 running afoul of the Constitution.

16 4. Plaintiffs Cannot Use the Federal Courts to Usurp the 17 Tribe’s Authority or Assume the Tribe’s Legal Rights 18 Finally, the Individual Plaintiffs’ state-law claim is an improper attempt to 19 usurp Quechan’s sovereignty by asking this Court to wrest control of tribal affairs 20 from Quechan’s Tribal Council. Although the Individual Plaintiffs label 21 themselves the “General Councilmembers” to create the appearance of authority 22 within the Tribe, under the Tribe’s Constitution, the entity responsible for retaining 23 counsel, codifying counsel’s retention, and defending the Tribe’s rights is the duly- 24 elected Tribal Council. (See Ex. 27 to SAC at Art. I; Art. III, Section 6(b) and (d).) 25 The Individual Plaintiffs do not allege that they are members of the Tribal Council. 26 In fact, they acknowledge that they are not. (SAC ¶ 235.) They do not allege that 27 28 MEM. ISO SPECIAL MOTION TO STRIKE 23 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 they are acting on behalf of the Tribal Council, the Tribe’s governing body.10 2 Rather, they believe that the Tribal Council, the authority vested with governance 3 power by the Tribe’s Constitution and recognized by federal and state governments, 4 is composed of “rogue officials” who have been recalled but “have refused to step 5 down.” (SAC ¶¶ 6, 236(e).)11 6 This is exactly the type of dispute that this Court cannot adjudicate. “Tribal 7 election disputes . . . are key facets of internal tribal governance and are governed 8 by tribal constitutions, statutes, or regulations.” Attorney’s Process and 9 Investigation Services, Inc. v. Sac & Fox Tribe of Mississippi in Iowa, 609 F.3d 10 927, 943 (8th Cir. 2010). “Such questions of tribal law are ‘beyond the purview of 11 the federal agencies and the federal courts.’” Anderson v. Duran, 70 F. Supp. 3d 12 1143, 1151 (N.D. Cal. 2014) (citation omitted).12 And this Court is without 13 jurisdiction to vest the Individual Plaintiffs with any authority to act on behalf of 14 the Tribe. “Internal matters of a tribe are generally reserved for resolution by the 15 tribe itself, through a policy of Indian self-determination and self-government as 16 mandated by the Indian Civil Rights Act . . . . A district court thus generally lacks 17 10 According to Plaintiffs’ own submissions, at least one of the Individual Plaintiffs 18 is responsible for recent, unsuccessful attempts to unseat the Quechan government 19 through a recall election. (See Ex. 30 to SAC, Docket No. 100-30 (explaining that Plaintiff Sally DeCorse filed multiple sets of recall petitions).) 20 11 21 As Exhibit 30 to the SAC explains, in order to recall members of a Tribal Council, Quechan’s Constitution requires a voter turnout threshold that was not 22 met. (Id.; see also Ex. 27 to SAC, Docket No. 100-27, at Art. VI, Section 3 & Art. 23 VII, Section 4.) The vote, which members of the Individual Plaintiff group initiated, was therefore ineffective. 24 12 25 See also Boe v. Fort Belknap Indian Cmty. of Fort Belknap Reservation, 642 F.2d 276, 279 (9th Cir. 1981) (claims based on interference with tribal elections “simply 26 are not cognizable in the federal courts”); U.S. Bancorp v. Ike, 171 F. Supp. 2d 27 1122, 1125 (D. Nev. 2001) (“Deciding a question involving a tribal election dispute is solely a matter of tribal law, and we do not have jurisdiction to address this 28 question.”) (collecting authorities). MEM. ISO SPECIAL MOTION TO STRIKE 24 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD

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1 jurisdiction to resolve matters of internal tribal governance.” See, e.g., Hammond v. 2 Jewell, 139 F. Supp. 3d 1134, 1137 (E.D. Cal. 2015) (quotation and citation 3 omitted). Thus, this is not the proper forum to address the Individual Plaintiffs’ 4 dissatisfaction with the recall election outcome. 5 IV. Conclusion 6 For the foregoing reasons, the Rosette Defendants respectfully request that 7 the Court strike the sixth claim for relief. If struck, the Rosette Defendants will 8 seek attorneys’ fees and costs, as provided under California law, in a separate 9 motion. See Cal. Civ. Proc. Code § 425.16(c)(1); Ketchum v. Moses, 24 Cal. 4th 10 1122, 1133 (2001) (“[A]n attorney fee award should ordinarily include 11 compensation for all the hours reasonably spent, including those relating solely to 12 the fee.”). 13 14

15 Dated: August 3, 2018 MATTHEW W. CLOSE BRITTANY ROGERS 16 O’MELVENY & MYERS LLP 17 18 By: s/ Matthew W. Close Matthew W. Close 19 Attorneys for Defendants Robert 20 Rosette, Rosette & Associates, PC, Rosette, LLP, and Richard Armstrong 21 Email: [email protected]

22 23 24 25 26 27 28 MEM. ISO SPECIAL MOTION TO STRIKE 25 PURSUANT TO CIV. PROC. CODE § 425.16 17-CV-01436 GPC MDD