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1 JONATHAN PATCHEN (SBN 237346)


2 Jonathan.Patchen@bakerbotts.com
BAKER BOTTS LLP
3 101 California Street, Suite 3600
4 San Francisco, CA 94111
Telephone:415.291.6200
5 Facsimile: 415.291.6300
6 Attorneys for Defendants
BAKER BOTTS L.L.P. and JONATHAN A. SHAPIRO
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UNITED STATES DISTRICT COURT
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10 SOUTHERN DISTRICT OF CALIFORNIA
11 HARVEY J. KESNER, Case No. 3:20-cv-01084-WQH-DEB
12 NOTICE OF MOTION AND
Plaintiff, MOTION TO (1) SPECIALLY
13 STRIKE PURSUANT TO
CALIFORNIA CODE OF CIVIL
14 v. PROCEDURE § 425.16; (2) TO
DISMISS; AND (3) TO AWARD
15 BAKER BOTTS L.L.P. and ATTORNEYS’ FEES;
MEMORANDUM OF POINTS AND
16 JONATHAN A. SHAPIRO, AUTHORITIES IN SUPPORT
17 Defendants.
Date: July 27, 2020
18
19 NO ORAL ARGUMENT UNLESS
REQUESTED BY THE COURT
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21 Filed: January 21, 2020
Transferred: June 8, 2020
22 Trial Date: None
23
[Memorandum of Points and
24 Authorities in Support of Motion filed
concurrently herewith]
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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


2 PLEASE TAKE NOTICE that on July 27, 2020, in the United States District
3 Court, Southern District of California, Defendants Baker Botts L.L.P. and Jonathan
4 A. Shapiro (“Defendants”), will and hereby do move this Court for an order (1)
5 granting a Special Motion to Strike pursuant to California Code of Civil Procedure
6 section 425.16 as to Counts II-VI of the Complaint; (2) granting, in the alternative, a
7 motion to dismiss, without leave to amend, pursuant to Federal Rules of Civil
8 Procedure 9(b) and12(b)(6) as to Counts II-VI of the Complaint; (3) granting a motion
9 to dismiss, without leave to amend, pursuant to Federal Rules of Civil Procedure 9(b)
10 and 12(b)(6) as to Count I of the Complaint; (4) awarding attorneys’ fees, in amount
11 subject to further proof, pursuant to California Code of Civil Procedure section
12 425.16; and (5) entering judgment in Defendants’ favor and against the Plaintiff.
13 This motion is made pursuant to California Code of Civil Procedure section
14 425.15 and Federal Rules of Civil Procedure 9(b) and 12(b)(6).
15 //
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1 This motion is based upon this Notice, the accompanying Memorandum of


2 Points and Authorities, the Memorandum of Law previously filed and pending (Dkt.
3 12), and upon such other and further oral and documentary evidence as may be
4 submitted and argument as may be made at the hearing on this matter, if a hearing is
5 useful to the Court.
6
7 Dated: June 24, 2020 Respectfully submitted,
8
9
10 /s/ Jonathan Patchen
JONATHAN PATCHEN
11 (SBN 237346)
12 BAKER BOTTS LLP
101 California Street, Suite 3600
13 San Francisco, CA 94111
14 Telephone:415.291.6200
Facsimile: 415.291.6300
15 Jonathan.Patchen@bakerbotts.com
16
Attorneys for Defendants
17 BAKER BOTTS L.L.P. and
18 JONATHAN A. SHAPIRO

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1 TABLE OF CONTENTS
Page
2
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES ................ 1
3
INTRODUCTION ....................................................................................................... 1
4
PROCEDURAL BACKGROUND ............................................................................. 2
5
DISCUSSION .............................................................................................................. 4
6
1. Kesner’s State Law Claims Are Subject to Strike Under Anti-SLAPP ............ 4
7
a. Legal Standard ........................................................................................ 4
8
b. Kesner’s State Law Causes of Action Satisfy the First Prong of
9 California’s Anti-SLAPP Law. ............................................................... 6
10 c. As a Matter of Law, Kesner Cannot Satisfy Anti-SLAPP Prong Two ... 9
11 2. The Court Should Dismiss Kesner’s Meritless RICO Claim .......................... 10
12 CONCLUSION .......................................................................................................... 11
13
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1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Abuemeira v. Stephens,
246 Cal. App. 4th 1291 (2016) ........................................................................... 10
5
Action Apartment Assn., Inc. v. City of Santa Monica,
6 41 Cal.4th 1232 (2007) ....................................................................................... 12
7 Area 51 Prods., Inc. v. City of Alameda,
20 Cal. App. 5th 581 (2018) ............................................................................... 10
8
Blanchard v. DIRECTV, Inc.,
9 123 Cal. App. 4th 903 (2004) ............................................................................. 10
10 Briggs v. Eden Council for Hope & Opportunity,
19 Cal. 4th 1106 (1999) ........................................................................................ 7
11
California Teachers Ass’n v. Governing Bd. of Rialto Unified School
12 Dist.,
14 Cal. 4th 627 (1997) .......................................................................................... 9
13
City of Cotati v. Cashman,
14 29 Cal.4th 69 (2002) ............................................................................................. 6
15 Contreras v. Dowling,
4 Cal. App. 5th 774 (2016) ................................................................................... 8
16
Crossroads Investors, L.P. v. Federal Mortgage Assn.,
17 13 Cal. App. 5th 757 (2017) ................................................................................. 8
18 Digerati Holdings, LLC v. Young Money Ent’mt, LLC,
194 Cal. App. 4th 873 (2011) ......................................................................... 8, 12
19
Freeman v. Schack,
20 64 Cal.Rptr.3d 867 (2007) .................................................................................... 6
21 Globetrotter Software, Inc. v. Elan Computer Group, Inc.,
63 F. Supp. 2d 1127 (N.D. Cal. 1999).................................................................. 5
22
Graham-Sult v. Clainos,
23 738 F.3d 1131 (9th Cir. 2013) .............................................................................. 8
24 Hilton v. Hallmark Cards,
580 F.3d 874 (9th Cir. 2009) .............................................................................. 13
25
Hilton v. Hallmark Cards,
26 599 F.3d 894 (9th Cir.2010) ................................................................................. 6
27 In re Bah,
321 B.R. 41 (B.A.P. 9th Cir. 2005) ...................................................................... 5
28
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1 Kearney v. Foley & Lardner, LLP,


590 F.3d 638 (9th Cir. 2009) .............................................................................. 10
2
Kesner v. Barron’s, et al.,
3 20 Civ. 3454 (PAE) (S.D.N.Y.) .......................................................................... 10
4 MabVax Therapeutics Holdings, Inc. v. Sichenzia Ross & Ference LLP
and Harvey Kesner,
5 No. 3:18-cv-02494 (S.D. Cal.) ......................................................................... 1, 3
6 Macias v. Hartwell,
55 Cal. App. 4th 669 (1997) ................................................................................. 7
7
Malin v. Singer,
8 217 Cal. App. 4th 1283 (2013) ......................................................................... 2, 7
9 Navellier v. Sletten,
29 Cal. 4th 82 (2002) ............................................................................................ 9
10
Planned Parenthood Fed’n of Am., Inc. v. Center for Med. Progress,
11 890 F.3d 828 (9th Cir. 2018) .......................................................................... 7, 11
12 Rand Resources, LLC v. City of Carson,
6 Cal. 5th 610 (2019) .......................................................................................... 11
13
Rohde v. Wolf,
14 154 Cal. App. 4th 28 (2007) ................................................................................. 8
15 S. B. Beach Prop. v. Berti,
39 Cal.4th 374 [TK] (2006) .................................................................................. 7
16
Silberg v. Anderson,
17 50 Cal.3d 205 (1990) ...................................................................................... 7, 12
18 Sosa v. DIRECTV, Inc.,
437 F.3d 923 (9th Cir. 2006) ........................................................................ 13, 14
19
Sprewell v. Golden State Warriors,
20 266 F.3d 979 (9th Cir. 2001) .............................................................................. 13
21 United States v. Howard,
381 F.3d 873 (9th Cir. 2004) ................................................................................ 3
22
United States v. Wilson,
23 631 F.2d 118 (9th Cir.1980) ................................................................................. 3
24 Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097 (9th Cir. 2003) .......................................................................... 5, 6
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1 STATUTES
2 Cal. Code Civ. Proc. § 425.16(c)(1) .......................................................................... 7
3 California Civil Code § 47(b) ................................................................................ 2, 7
4 OTHER AUTHORITIES
5 Fed. R. Evid. 201 ....................................................................................................... 3
6 Pete Brush, Stick to Facts, Judge Tells Atty tn Barron's Defamation
Case, May 21, 2020, Law360.com ..................................................................... 10
7
S.D. Cal. L.R. 7.1(e)(7)............................................................................................ 11
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1 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES


2
INTRODUCTION
3
4 This case is a frivolous “SLAPP” suit filed by an attorney (Harvey Kesner) in
5 retaliation against the pending fraud and malpractice case brought against him by his
6 former client MabVax Therapeutics Holdings, Inc. (“MabVax”), MabVax
7 Therapeutics Holdings, Inc. v. Sichenzia Ross & Ference LLP and Harvey Kesner,
8 No. 3:18-cv-02494 (S.D. Cal.) (“MabVax v. Sichenzia/Kesner”). In this case, Kesner
9 claims that Defendants—the law firm and lawyer who replaced Kesner as counsel for
10 MabVax—“threatened” and “extorted him” by sending for settlement purposes a draft
11 of the complaint in MabVax v. Sichenzia/Kesner some two weeks before the client
12 filed it. See Dkt. 18 (S.D.N.Y., June 8, 2020) (Hellerstein, J.) (“Transfer Order”).
13 There is no question that Kesner has brought this case in retaliation against
14 Defendants for classically privileged conduct—their legal advocacy on behalf of their
15 current client (and his former client), which conduct encompasses both the “right to
16 petition” and “free speech.” There also are “glaring factual inaccuracies in the
17 Complaint,” which Kesner filed in the Southern District of New York despite
18 “virtually no meaningful connection” to New York. See Transfer Order at 2 (noting
19 that Kesner sought to “circumvent” this Court’s prior orders). After Defendants filed
20 a dispositive motion to dismiss, Kesner failed to respond for nearly three months, and
21 then disregarded a Court Order requiring him to respond and explain his “long
22 delay.” See id. at 2-3; Dkt. 16 (Order, 5/29/20). Judge Hellerstein granted Defendants’
23 motions, sua sponte ordering Kesner to pay a monetary sanction and costs “because
24 of plaintiff’s frivolous opposition.” See id.1
25 As set forth below, Kesner’s $35 million lawsuit is frivolous because he has
26 sued counsel for their unquestionably privileged and protected act of sending a draft
27
28 1
Kesner has not yet paid the sanctions. Defendants will shortly file their Bill of
Costs.
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1 complaint prior to filing. See California Civil Code § 47(b); Malin v. Singer, 217 Cal.
2 App. 4th 1283, 1293 (2013) (“a demand letter sent in anticipation of litigation is a
3 legitimate speech or petitioning activity that is protected under section 425.16.”). This
4 Court should strike Kesner’s five state law claims under anti-SLAPP, and award
5 Defendants their reasonable attorneys’ fees. Cal. Code Civil Procedure § 425.16. The
6 sole federal claim under RICO, 18 U.S.C. § 1962, should be dismissed with prejudice
7 under Rules 9(b) and 12(b)(6) for the reasons stated in Defendants’ still-pending and
8 still-unopposed motion to dismiss. Dkt. 11, 12.
9 Simply put, Kesner should have never filed his inflammatory SLAPP lawsuit.
10 Defendants have unfairly been put to the burden of defending themselves on both
11 coasts from the reputational stain of unfounded racketeering accusations and the
12 “glaring inaccuracies in the Complaint.” Transfer Order at 2. One purpose of
13 California’s anti-SLAPP law is to sharply reduce the burden, via early dismissal and
14 mandatory award of fees, imposed by litigants like Kesner who file retaliatory suits
15 against lawyers who did nothing more than exercise free speech and the right to
16 petition on behalf of a client. Kesner’s only response to Defendants’ dismissal
17 arguments has been “frivolous,” see Transfer Order, and judgment should now be
18 entered against Kesner with attorney’s fees and expenses awarded to Defendants.
19 PROCEDURAL BACKGROUND
20 The stated basis for every one of Kesner’s claims is that, on August 17, 2018,
21 Defendants improperly threatened to bring a lawsuit on behalf of their client MabVax
22 against Kesner. Dkt. 12 (“MTD”) at 1-4; Dkt. 1 (“Compl.”) ¶2 (alleging “[o]n August
23 17, 2018,” Defendants “emailed and delivered via Federal Express from California to
24 New York a letter and 28-page lawsuit which Baker Botts and Shapiro threatened to
25 file”); ¶48 (“The draft complaint and related communications constitute criminal
26 extortion.”). That letter and draft complaint were sent pursuant to Federal Rule of
27
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1 Evidence 408 and its California counterpart, Cal. Evid. Code §§ 1152, 1154. See Dkt.
2 13, Ex. A.2
3 Kesner contends that it was extortion for Defendants to send their client’s draft
4 complaint because they, as outside counsel, “had no present intention to file anything”
5 and that “[n]o suit was ever filed by Baker Botts and/or Shapiro.” Compl. ¶¶ 2, 6. That
6 is one of the many glaring inaccuracies. As recognized in the Southern District of New
7 York’s Order, on September 10, 2018, MabVax, using different counsel, filed the very
8 lawsuit that Defendants “threatened” in draft form three weeks earlier. See Transfer
9 Order at 1-2, n.1; Compl. ¶46. Also false is Kesner’s theory that the claims that were
10 threatened—and brought—against him by MabVax were frivolous. See MabVax v.
11 Sichenzia/Kesner, Dkt. 36, 48 (denying motions to dismiss, transfer, and for
12 interlocutory appeal to Ninth Circuit).
13 On January 21, 2020, Kesner filed this Complaint in the Southern District of
14 New York. Dkt. 1. He asserts one federal claim (RICO) and five state law claims.
15 Transfer Order at 1. On March 12, 2020, Defendants filed motions to dismiss or
16 transfer. Dkt. 12, 16, 18.
17 On May 29, 2020, after Kesner failed to oppose the motion for nearly 80 days
18 (violating the Local Rules that required a response be filed by March 26, 2020), the
19 Court ordered him to do so and show “good cause for [his] long delay.” Dkt 16, 18.
20
21 2
Defendants request the Court take Judicial Notice of a number of items on this
Court’s docket, including (1) Defendants’ previously-filed Memorandum of Law in
22
Support of Motion to Dismiss (Dkt. 12); (2) the pre-settlement letter and draft
23 complaint, which is the stated basis for the Complaint and were previously put before
24 the Court without opposition (Dkt. 13, Ex. A); and (3) the Transfer Order (Dkt. 18).
Defendants further request the Court take judicial notice of the complaint in MabVax
25 v. Sichenzia/Kesner, (Case No. 3:18-cv-02494; Dkt. No. 1), and the Court’s denial of
26 a motion to dismiss and related orders in that case (id., Dkt. Nos. 36, 48). Judicial
notice of such court records is entirely proper. See, e.g., United States v. Howard, 381
27 F.3d 873, 876 n.1 (9th Cir. 2004) (citing Fed. R. Evid. 201 and United States v. Wilson,
28 631 F.2d 118, 119 (9th Cir.1980)).
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1 Kesner also failed to comply with the Court’s Order. Id. Instead, he proposed
2 that it would “most efficient” to forget about the Complaint and the pending motions,
3 and instead amend the Complaint to add more defendants (including a junior law firm
4 associate who Kesner alleges took notes during a meeting). Dkt. 17.3
5 On June 8, 2020, the Southern District of New York entered another Order: (i)
6 dismissing the Complaint on jurisdictional grounds and transferring to this Court; (ii)
7 denying Kesner’s motion for leave to amend the Complaint; and (iii) sua sponte
8 ordering monetary sanctions and costs against Kesner for a “frivolous opposition.”
9 See Transfer Order.
10 DISCUSSION
11 1. Kesner’s State Law Claims Are Subject to Strike Under Anti-SLAPP
12 a. Legal Standard
13 It is long established that “[m]otions to strike a state law claim under
14 California’s anti-SLAPP statute [Code of Civil Procedure § 425.16] may be brought
15 in federal court.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003).
16 In particular, California federal courts entertain anti-SLAPP motions to all state law
17 claims before them, regardless of whether such claims are presented by diversity or
18 supplemental jurisdiction. Globetrotter Software, Inc. v. Elan Computer Group, Inc.,
19 63 F. Supp. 2d 1127, 1129–1130 (N.D. Cal. 1999); In re Bah, 321 B.R. 41, 46 (B.A.P.
20 9th Cir. 2005).
21
22 3
Kesner’s frivolous filing advanced the claim that one of his two attorneys,
23 Steven Biss, was sick with COVID-19, even though Mr. Biss was never counsel of
24 record and never sought to appear pro hac vice, which would have required disclosure
of his substantial disciplinary history. See S.D.N.Y. Local Rule.1.3(c). Moreover,
25 Kesner’s claim that COVID-19 substantially interrupted Biss’ practice was unverified,
26 unsupported, and contrary to publicly available facts (including dockets of an
extraordinarily active federal court practice). Kesner’s other counsel, Robert Buschel,
27 a Florida attorney admitted pro hac vice, offered no explanation or showing of good
28 cause for his own long delay and failure to respond to Defendants’ motion.
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1 “A court considering a motion to strike under the anti-SLAPP statute must


2 engage in a two-part inquiry.” Vess, 317 F.3d at 1110. First, “a defendant must make
3 an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance
4 of the defendant’s rights of petition or speech.” Id. Second, “once the defendant has
5 made a prima facie showing, the burden shifts to the plaintiff to demonstrate a
6 probability of prevailing on the challenged claims.” Id.
7 With respect to the first prong, as held by the California Supreme Court, “[t]he
8 statutory phrase ‘cause of action . . . arising from’ means simply that the defendant's
9 act underlying the plaintiff’s cause of action must itself have been an act in furtherance
10 of the right of petition or free speech.” Freeman v. Schack, 154 Cal. App. 4th 719,
11 727 (2007) (emphasis in original) (citing City of Cotati v. Cashman, 29 Cal.4th 69, 78
12 (2002)). As to the second prong, the plaintiff must “demonstrate that the complaint is
13 both legally sufficient and supported by a sufficient prima facie showing of facts to
14 sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”
15 Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir.2010) (internal quotation marks
16 omitted).
17 If, as here, a defendant makes a special motion to strike based on alleged
18 deficiencies in the plaintiff’s complaint, the motion must be treated in the same
19 manner as a motion under Rule 12 (b)(6)—except that the attorney’s fee provision of
20 Section 425.16(c) applies.4 Planned Parenthood Fed’on of Am., Inc. v. Center for
21 Med. Progress, 890 F.3d 828, 833–834 (9th Cir. 2018).
22
23
4
24 If the Court grants the motion to strike, “a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney's fees and costs.” Cal.
25 Code Civ. Proc. § 425.16(c)(1); Macias v. Hartwell, 55 Cal. App. 4th 669, 675 (1997).
26 However, the prevailing party “fee provision applies only to the motion to strike, and
not to the entire action.” S.B. Beach Prop. v. Berti, 39 Cal.4th 374, 381 (2006)
27 (citations omitted). Thus, if the motion is granted, fees should be imposed for
28 defeating all of Kesner’s state law causes of action.
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1 b. Kesner’s State Law Causes of Action Satisfy the First Prong of


2 California’s Anti-SLAPP Law.

3 Focusing, as this Court must, on Defendant’s alleged actions, it is clear that

4 anti-SLAPP Prong One is established here. Kesner’s entire complaint is predicated

5 upon Defendants sending a settlement communication and draft complaint. See MTD

6 at 1-3, 27-31. Such prelitigation conduct is expressly protected by California litigation

7 privilege, Civil Code § 47(b). See MTD at 3, 15-16; Silberg v. Anderson, 50 Cal.3d

8 205, 212-13 (1990) (“The principal purpose of section [47(b)] is to afford litigants and

9 witnesses the utmost freedom of access to the courts without fear of being harassed

10 subsequently by derivative tort actions.”) (internal citations omitted). “To effectuate

11 its vital purposes, the litigation privilege is held to be absolute in nature.” Silberg, 50

12 Cal.3d at 215.

13 It is, of course, well-established that “a demand letter sent in anticipation of

14 litigation is a legitimate speech or petitioning activity that is protected under section

15 425.16.” Malin v. Singer, 217 Cal. App. 4th 1283, 1293 (2013) (quoting Briggs v.

16 Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1115 (1999)

17 (“‘communications preparatory to or in anticipation of the bringing of an action or

18 other official proceeding’” are protected by section 425.16)); see also, e.g.,

19 Crossroads Investors, L.P. v. Federal Nat’ Mortgage Ass’n., 13 Cal. App. 5th 757,

20 782-783 (2017); Rohde v. Wolf, 154 Cal. App. 4th 28, 35-36 (2007); Graham-Sult v.

21 Clainos, 738 F.3d 1131, 1142–1143 (9th Cir. 2013) (anti-SLAPP statute applied to

22 claims based on, inter alia, activities preparatory to filings in the probate

23 court); Contreras v. Dowling, 4 Cal. App. 5th 774 (2016) (attorney giving advice to

24 client and corresponding with opposing counsel were “unquestionably protected

25 activities” under the anti-SLAPP statute). What is well-protected is precisely what

26 happened here: Defendants sent a settlement communication limited to the issues in

27 the attached draft complaint, all on behalf of their client. When Kesner failed to

28
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1 respond, the client filed substantively the same claims against Kesner as it had
2 “threatened” three weeks earlier. See Transfer Order; MTD at 1-3.5 Thus, Prong One
3 is clearly satisfied.
4 As a matter of law, none of Kesner’s state law claims can survive the anti-
5 SLAPP law. Compl., Counts II –VI. The Court’s analysis on Prong One focuses on
6 the challenged conduct (i.e., what Defendants are alleged to have done), without
7 regard to how Kesner labels his claim or the cause of action he claims to invoke. As
8 the California Supreme Court held, “[n]othing in the statute itself categorically
9 excludes any particular type of action from its operation” and courts lack the power
10 “to rewrite the statute” by excluding certain causes of action. Navellier v. Sletten, 29
11 Cal. 4th 82, 92, (2002) (quoting California Teachers Assn. v. Governing Bd. of Rialto
12 Unified School Dist., 14 Cal. 4th 627, 633 (1997)). Thus, Kesner’s pleading of New
13 York statutory and/or common law claims—rather than California statutory and/or
14 common law claims—is irrelevant for anti-SLAPP purposes; what matters is the
15 alleged underlying conduct, which if true (and it isn’t) would be actionable under
16 California law as well.
17 But even if this Court were to examine Kesner’s claims on a cause-of-action
18 basis, well-established law confirms that anti-SLAPP applies to each of them. It
19 certainly applies to the common law torts of infliction of emotion distress, interference
20 with contract, and prima facie tort—all based on the allegedly improper sending of
21 the settlement-purposes draft complaint and seeking recovery for the loss of
22
23 5
The good faith and professional care with which Defendants researched,
24 prepared and sent the draft complaint also cannot be questioned because MabVax filed
the “threatened” lawsuit, which more than a year ago this Court sustained against
25 Kesner following extensive dispositive motion practice. See Digerati Holdings, LLC
26 v. Young Money Ent’mt, LLC, 194 Cal. App. 4th 873, 888 (2011) (commencement of
threatened litigation demonstrates that prior demand letter was made in good faith
27 contemplation of litigation); see also MTD at 30-31 (noting that Kesner’s allegations
28 of “threats” of unfounded claims are “demonstrably false”).
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1 employment, reputation, and emotional distress that allegedly followed (Counts III-
2 IV).6 See, e.g., Abuemeira v. Stephens, 246 Cal. App. 4th 1291 (2016) (anti-SLAPP
3 applied to intentional infliction of emotional distress claim); Area 51 Productions, Inc.
4 v. City of Alameda, 20 Cal. App. 5th 581 (2018) (anti-SLAPP applied to interference
5 with contact claim); Kearney v. Foley & Lardner, LLP, 590 F.3d 638 (9th Cir. 2009)
6 (anti-SLAPP applied to prima facie tort claim). The same result must hold for
7 Kesner’s New York statutory claims, again based on the same pre-suit settlement
8 draft. See MTD at 1-3, 27-31. His claim under New York General Business Law
9 section 349, a consumer protection statute (Count II), finds echo in California more
10 expansive Business and Professions Code section 17200. And yet, anti-SLAPP
11 applies to Section 17200 claims. See, e.g., Blanchard v. DIRECTV, Inc., 123 Cal.
12 App. 4th 903 (2004) (striking Bus. & Prof. section 17200 claim based on
13 a demand letter sent to customers of a satellite television service who purchased
14 devices capable of pirating television programming because the letter was protected
15 by the “litigation privilege” of Civil Code section 47(b)). Same to as to New York
16 Judiciary Law section 487 (Count IV); that statute prohibits deceit toward a client or
17 a court. MTD at 29-31. But anti-SLAPP applies generally to claims of deceit. Rand
18 Resources, LLC v. City of Carson, 6 Cal.5th 610 (2019).7
19 In short, regardless of the label of the claims pleaded, Defendants’ alleged
20 conduct—sending a demand letter and draft complaint—clearly falls within the scope
21 of anti-SLAPP Prong One.
22
23
6
Kesner seeks the same damages in a case against Barron’s where he and his
24 counsel were also admonished, Kesner v. Barron’s, et al., 20 Civ. 3454 (PAE)
(S.D.N.Y.)(Englemayer, J.)($25 million defamation claim for, inter alia, publication
25 of article “The Lawyer at the Center of the SEC Pump and Dump Case”). See Pete
Brush, Stick to Facts, Judge Tells Atty in Barron’s Defamation Case, May 21, 2020,
26 Law360.com (“You're now in the big leagues. . . . You can’t just make stuff up.”).
7
27 To the extent the Court determines that anti-SLAPP is not applicable to all of
the state law causes of action, Defendants alternatively move to dismiss those causes
28 under Rule 12(b)(6), as also briefed in the never-opposed motion (Dkt. 12).
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1 c. As a Matter of Law, Kesner Cannot Satisfy Anti-SLAPP Prong Two


2 As a matter of law, Kesner cannot meet his Prong Two burden to demonstrate
3 that his claims would survive under a Rule 12(b)(6) analysis. Planned Parenthood,
4 890 F.3d at 833-34.
5 First, Defendants have already extensively briefed why Kesner’s claims failed
6 under Rule 12(b)(6) in their March 12, 2020 motion to dismiss. See MTD. Kesner
7 failed to timely file any opposition to that motion. Dkt 16, 18. Even after Judge
8 Hellerstein ordered Kesner to respond and explain his “long delay,” Dkt 16, Kesner
9 still failed to do so. Dkt 18. Defendants’ unopposed arguments should end the matter.
10 Cf. S.D. Cal. L.R. 7.1(e)(7).8 Rather than burden the Court, Defendants’ hereby
11 incorporate by reference their earlier, unopposed argument. See MTD at 39-43.
12 Second, in addition to their already-briefed motion to dismiss (supported by
13 Ninth Circuit authorities), Defendants note that they are further entitled to the
14 protections of California’s broad litigation privilege. The litigation privilege applies
15 “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by
16 litigants or other participants authorized by law; (3) to achieve the objects of the
17 litigation; and (4) that have some connection or logical relation to the action.” Silberg
18 v. Anderson, 50 Cal.3d 205, 212 (1990). “The privilege is not limited to statements
19 made during a trial or other proceedings, but may extend to steps taken prior thereto,
20 or afterwards.” Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232,
21 1241 (2007). The litigation privilege is interpreted broadly to further its principal
22 purpose of affording litigants (and their lawyers) the utmost freedom of access to the
23 courts without fear of harassment in derivative tort actions. Id. The privilege is
24
25 8
Rather than even attempt to justify his Complaint in the face of Defendants’
26 arguments, Kesner tried to start anew by seeking leave to file an amended complaint
that recycled his still-deficient attack on Defendants’ privileged lawyering activities.
27 The Southern District of New York denied leave to file the proposed amended
28 complaint. Dkt. 18.
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1 absolute and applies regardless of malice. Id. A prelitigation communication, as is


2 challenged here, is privileged if it “relates to litigation that is contemplated in good
3 faith and under serious consideration.” Id. at 1251.
4 Here, there can be no doubt that the challenged action—a demand letter and
5 draft complaint—were clearly related to litigation “contemplated in good faith and
6 under serious consideration” since MabVax filed the complaint. See Dkt. 18 at 1
7 (noting the ongoing claim against Kesner “using the very same complaint that Kesner
8 identifies” in the instant lawsuit); Digerati Holdings, LLC v. Young Money
9 Entertainment, LLC, 194 Cal. App. 4th 873, 888 (2011) (actually commencing
10 litigation was evidence that prior demand letter was made in good faith contemplation
11 of litigation). That complaint, filed a mere three weeks after Defendants’ demand
12 letter, survived a motion to dismiss more than a year ago. MabVax v.
13 Sichenzia/Kesner, Dkt. 36.
14 On these judicially noticeable facts, Defendants’ actions were irrefutably
15 related to good faith contemplated litigation and thus privileged as a matter of law.
16 Dkt. 18 at n.1. Kesner’s allegation to the contrary—properly noted to be a “glaring
17 factual inaccura[cy]” by Judge Hellerstein—can be summarily rejected. E.g.,
18 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
19 2. The Court Should Dismiss Kesner’s Meritless RICO Claim
20 Unlike his state law claims, Kesner’s RICO claim is not subject to an Anti-
21 SLAPP motion to strike. See Hilton v. Hallmark Cards, 580 F.3d 874, 881 (9th Cir.
22 2009). Rather, Kesner’s RICO claim is evaluated under traditional Rule 12(b)(6)
23 principles, and must be dismissed under Ninth Circuit precedent and the other reasons
24 and authorities set forth in Defendants’ never-opposed motion. See Sosa v. DIRECTV,
25 Inc., 437 F.3d 923, 942 (9th Cir. 2006) (“RICO and the predicate statutes at issue here
26 do not permit the maintenance of a lawsuit for the sending of a prelitigation demand to
27 settle legal claims. . . .”); MTD at 1-4; 13-25 (briefing both Kesner’s failure to plead
28
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1 any RICO element and absolute defenses under First Amendment and Noerr-
2 Pennington).9
3 Just like his state law claims, Kesner has never opposed Defendants’ motion to
4 dismiss his RICO claims. Rather than rehash a dozen pages of unopposed briefing,
5 Defendants simply incorporate by reference the arguments set forth in their unopposed
6 motion to dismiss, MTD at 13-25, as if set forth fully herein.
7 CONCLUSION
8 For all of these reasons, Defendants respectfully request that the Court enter an
9 order:
10 1. Striking Counts II – VI under Anti-SLAPP law, and ordering
Kesner to pay Defendants’ reasonable costs and attorney’s fees.
11
12 2. Dismissing Count I (RICO) with prejudice.

13 3. Entering final judgment for Defendants and against Kesner on all


claims, and awarding Defendants such other and further relief as
14
the Court may deem appropriate.
15
16 //

17 //

18 //

19 //

20 //

21 //

22
23
24 9
Pre-litigation demand letters are protected petitioning under the First
25 Amendment, and thus not actionable under RICO. See Sosa, 437 F.3d at 933 (also
26 applying Noerr-Pennington doctrine). To hold otherwise would upend American trial
practice˗˗“preceding the formal filing of litigation with an invitation to engage in
27 negotiations to settle legal claims is a common, if not universal, feature of modern
28 litigation.” Id. at 936.
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1
2 Dated: June 24, 2020 Respectfully submitted,
3
4
/s/ Jonathan Patchen
5 JONATHAN PATCHEN
(SBN 237346)
6
BAKER BOTTS LLP
7 101 California Street, Suite 3600
San Francisco, CA 94111
8
Telephone:415.291.6200
9 Facsimile: 415.291.6300
Jonathan.Patchen@bakerbotts.com
10
11 Attorneys for Defendants
BAKER BOTTS L.L.P. and
12
JONATHAN A. SHAPIRO
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