Hugo Robert Garcia vs Butterfly Lane Condominium Owners' Association et al

Case Number

25CV02983

Case Type

Hearing Date / Time

Fri, 10/10/2025 - 10:00

Nature of Proceedings

CMC; Demurrers; Motion to Strike; Special Motion to Stike; Disqualify Counsel

Tentative Ruling

For the reasons set forth below:

1. Plaintiff’s motion for order disqualifying counsel, Tara Radley and Beaumont Tashjian, from contemporaneously representing defendants Laura Jean Nary, Kevin Russell Nary, and Butterfly Lane Condominium Owners’ Association, is taken off-calendar as moot.

2. Defendant Jeffrey A. Beaumont’s motion to strike complaint pursuant to Code of Civil Procedure section 425.16 (Anti-SLAPP) is granted.

3. Defendant Jeffrey A. Beaumont’s demurrer and motion to strike portions of plaintiff’s complaint is taken off-calendar as moot.

4. Defendants Butterfly Lane Condominium Owners’ Association and the Narys’ demurrer and motion to strike are continued on the court’s own motion to December 12, 2025, at 10:00 a.m. in this department

Background:

This action commenced on May 12, 2025, by the filing of the complaint by plaintiff Hugo Roberto Garcia, Individually and as Trustee of The Montecristo #1 Living Trust, UA Dated September 24, 2015 (Garcia), against defendants Butterfly Lane Condominium Owners’ Association (BLCOA), Laura Jean Nary (Mrs. Nary), Kevin Russell Nary (Mr. Nary) (collectively “the Narys”), Jefferey A. Beaumont a Professional Corporation dba Beaumont Tashjian (Beaumont), and Vanguard Planning, Inc. (Vanguard) for: (1) Breach of the Implied Covenant of Good Faith and Fair Dealing – as to BLCOA, Mrs. Nary, Mr. Nary, and Beaumont, (2) Breach of Fiduciary Duty – as to BLCOA, Mrs. Nary, and Mr. Nary, (3) Removal of Directors - as to BLCOA, Mrs. Nary, and Mr. Nary, (4) Member’s Derivative Action - as to BLCOA, Mrs. Nary, and Mr. Nary, (5) Enforcement of Governing Documents - as to BLCOA, Mrs. Nary, and Mr. Nary, (6) Professional Negligence – as to Beaumont and Vanguard, (7) Nuisance - as to BLCOA, Mrs. Nary, and Mr. Nary, (8) Breach of Contract - as to BLCOA, Mrs. Nary, and Mr. Nary, and (9) Conspiracy – as to Beaumont Mrs. Nary, and Mr. Nary.

As alleged in the complaint:

Garcia, at all relevant times, resided at 89 Butterfly Lane, County of Santa Barbara. (Compl., ¶ 1.) Mrs. and Mr. Nary, at all relevant times, owned property in the County of Santa Barbara. (Id. at ¶¶ 3, 4.)

On January 15, 1985, a Declaration of Covenants, Conditions, and Restrictions of Butterfly Lane Condominiums (CC&Rs) was recorded with the Santa Barbara County Recorder, creating and governing a common interest development over the real property involved in this action. (Compl., ¶ 8 & Exh. A.) The CC&Rs obligated BLCOA to be the management body for the association and to perform its duties “. . . for the benefit of the owners and for the maintenance and improvement of Butterfly Lane Condominiums.” (Id. at ¶ 9 & Exh. A.)

Garcia, Mrs. Nary and Mr. Nary were owners of units in BLCOA with one vote each. (Compl., ¶¶ 11, 12.)

Mrs. and Mr. Nary, “on behalf of themselves and BLCOA, did not act for the benefit of all the owners. The Narys wasted two and one-half years, and tens of thousands of dollars, to build a small extension of a privacy wall. In contrast they dropped their lethargy and were quite aggressive when it came to levying a $100,000 Special Assessment on Garcia, interfering with his loan approval, and foreclosing on his home.” (Compl., ¶ 10.)

Despite the CC&Rs’ requirement that monthly and special assessments be the same for each of the three units, BLCOA, Mrs. Nary, Mr. Nary, and Beaumont demanded that Garcia pay on-half of the special assessments Mrs. and Mr. Nary passed on September 18, 2024. (Compl., ¶ 14.)

Garcia and the Narys have been involved in a dispute, since at least 2019, because the Narys can outvote Garcia. (Compl., ¶ 16.) “The Narys effectively rule the association as dictators and Garcia has little recourse outside of litigation. Even litigation provides limited recourse because the Narys . . . can force Garcia to pay 1/3 of [BLCOA’s] legal costs. Garcia and his wife, who [are] Latinos, [have] been treated quite different[ly] [than] the prior owners and believe and herein allege that the behavior is consistent with racial discrimination.” (Ibid.)

On May 6, 2022, Garcia and BLCOA, and the Narys, settled a lawsuit between the parties, Case No. 20CV03042, and executed a Settlement Agreement and Mutual Release of All Claims (settlement agreement). (Compl., ¶ 19 & Exh. B.) The settlement agreement required sums to be paid, all of which were paid. (Id. at ¶ 20.) In exchange, BLCOA, under the direction of Mrs. and Mr. Nary, was to extend a six-foot privacy wall between the parties. (Ibid.)

Despite the settlement agreement calling for the privacy wall to be installed within 60-days, the privacy wall has still not been installed nearly three years later. (Compl., ¶ 23.) Despite the settlement agreement calling for map modification to be promptly created, the map modification has still not been created nearly three years later. (Id. at ¶ 24.) Despite the settlement agreement calling for revised CC&Rs to be promptly created and executed, the revision has still not been effectuated nearly three years later. (Id. at ¶ 25.)

After two and one-half years, with no progress, and tens of thousands of dollars spent, not only was there no privacy wall, map modification, or revised CC&Rs, Mrs. and Mr. Nary forced a $100,000.00 special assessment. (Id. at ¶ 26.) The $100,000.00 special assessment was merely to pay for estimated costs and Garcia assumes these costs will only increase. (Id. at ¶ 28.) Mrs. and Mr. Nary, through their attorney Beaumont, demanded that Garcia pay one-half of the special assessment, which is inconsistent with the CC&R and settlement agreement requirements that each unit contribute one-third. (Id. at ¶¶ 29, 30.)

Mrs. and Mr. Nary had also hired, and then fired, planning firm Vanguard, after paying Vanguard at least $10,000.00. (Compl., ¶ 27.)

Beaumont drafted the settlement agreement, advised BLCOA as to the special assessment, and is also going to be drafting the revised CC&Rs. (Compl., ¶ 30.)

Garcia refused to pay the $100,000.00 special assessment because the costs were unreasonable, Vanguard must have been negligent to have the process take so long, and Mrs. and Mr. Nary were negligent and unreasonable as the Board of Directors for BLCOA. (Compl., ¶ 33.)

In March 2025, Garcia was approved for a refinance loan on his unit, but during the escrow for the loan, Beaumont told the escrow officer that Garcia had failed to pay the $100,000.00 special assessment. (Compl., ¶ 34.) Beaumont caused an assessment lien to be recorded against Garcia’s property, preventing any refinancing to occur. (Ibid.) The assessment lien was for Garcia’s claimed one-half of the $100,000.00 special assessment and “collection costs” claimed to have been incurred by Beaumont. (Ibid.)

On April 28, 2025, Mrs. Nary, Mr. Nary, and Beaumont issued a meeting notice to vote on judicial foreclosure of the $100,000.00 special assessment lien. (Compl., ¶ 35.) The Narys and Beaumont were prepared to foreclose and sell Garcia’s home to force him to pay the improper assessment lien. (Ibid.)

On May 5, 2025, the day of the meeting to vote on foreclosure, Beaumont was informed that Garcia would pay the amounts demanded, on the assessment lien, under protest pursuant to Civil Code section 5730. (Compl., ¶ 36.)

Garcia, as a member of BLCOA, contends that BLCOA should pursue legal against the Narys, Beaumont, and Vanguard. (Compl., ¶ 40.)

On June 4, 2025, Garcia dismissed Vanguard as a defendant, without prejudice.

On June 9, 2025, Garcia filed a motion disqualifying counsel, Tara Radley of Beaumont, and Beaumont itself, from contemporaneously representing the Narys and BLCOA on the grounds of conflict of interest and breach of the duty of loyalty.

On June 23, 2025, Tara Radley and Beaumont filed substitutions of attorney designating Nicholas Alexander Rogers, of the law firm O’Toole Rogers, as attorney of record for BLCOA, Mrs. Nary, and Mr. Nary.

On September 29, 2025, Beaumont filed an opposition to the motion disqualifying counsel, arguing that the motion is moot and that Garcia lacks standing to bring the motion.

On October 3, 2025, Garcia filed a reply to plaintiff’s opposition, arguing that the motion is not moot and, in addition to the original request for an order of disqualification as attorneys in this action, asks the court to order disqualification of Beaumont from participating in confidential executive session board meetings of BLCOA.

On July 18, 2025, Beaumont filed a special motion to strike complaint pursuant to Code of Civil Procedure section 425.16 (Anti-SLAPP), arguing that this action, as against Beaumont, is based on a protected activity and that Garcia cannot establish a probability of prevailing on the merits.

On September 29, 2025, Garcia filed his opposition to the Anti-SLAPP motion, arguing that that claims against Beaumont do not arise out of protected activity and that Garcia has a probability of prevailing on the merits of his claims against Beaumont.

Also on July 18, 2025, Beaumont filed a demurrer to Garcia’s complaint, and a motion to strike the first, fourth, sixth, and ninth causes of action, as well as Garcia’s requests for attorneys’ fees and exemplary damages. The demurrer and the motion to strike are opposed by Garcia.

On August 6, 2025, BLCOA and the Narys filed a demurrer to Garcia’s complaint, as well as motion to strike several portions of the complaint. The demurrer and the motion to strike are opposed by Garcia.

Analysis:

            Motion to Disqualify Counsel

As noted above, Radley and Beaumont filed a substitution of attorney, on June 23, 2025, and now attorney Rogers is the attorney of record for BLCOA and the Narys. As such, and despite Garcia’s argument to the contrary, the motion is moot and will be taken off-calendar.

It should be noted that Beaumont’s arguments, regarding standing of Garcia to bring the motion, are wholly without merit and would fail had the motion not been deemed moot.

Likewise, Garcia’s arguments, raised for the first time by way of his reply to Beaumont’s opposition, that Beaumont should be precluded from representing BLCOA in any other matter, and precluded from attending BLCOA board meetings, fails. As such relief was not included in the notice of motion, or motion itself, it would be a violation of Beaumont’s right to due process to grant such relief. Further, Garcia provides no persuasive authority that it would be proper for the court to grant such relief.

Garcia’s motion, as originally noticed and argued, if not rendered moot, would have been granted.

Although the motion is rendered moot by the filing of the substitution of attorneys, the court is compelled to bring to the parties’ attention that the new representation might also be improper.

Rule 1.7 of the Rules of Professional Conduct mandate:

“(a) A lawyer shall not, without informed written consent from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.

“(b) A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests.

“(c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where:

“(1) the lawyer has, or knows* that another lawyer in the lawyer’s firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or

“(2) the lawyer knows* or reasonably should know* that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm,* or has an intimate personal relationship with the lawyer.

“(d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and:

“(1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client;

“(2) the representation is not prohibited by law; and

“(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

“(e) For purposes of this rule, “ ‘matter’ ” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons.*”

“ ‘Current case law clearly forbids dual representation of a corporation and directors in a shareholder derivative suit, at least where, as here, the directors are alleged to have committed fraud.’ [Citations.] ” (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 696.)

“ ‘A violation of the Rules of Professional Conduct subjects an attorney to disciplinary proceedings . . .,’ [Citations.]” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1152 [125 Cal.Rptr.3d 765, 778]

While there is currently no motion pending to disqualify attorney Rogers from concurrently representing BLCOA and the Narys in this action, and the court is therefore not ruling on the issue, Rogers should thoroughly examine the representation to determine whether there is a conflict of interest and if he is violating the Rules of Professional Conduct.

            Anti-SLAP Motion to Strike

Code of Civil Procedure section 425.16 provides, in relevant part:

“(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

“(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

“(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

“(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

* * *

“(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . ..”

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)

1. First Prong – Arising From Protected Activity

Beaumont argues that Garcia bases all his claims against Beaumont on actions that Beaumont took on behalf of its client, BLCOA, in anticipation of litigation, that are protected under Code of Civil Procedure section 425.16 subdivisions (b)(1) and (e). Specifically, that the claims are based on letters written on behalf of BLCOA and the enforcement action taken.

In opposition, Garcia argues: “The liability-producing conduct is advice to other defendants, failure to act in good faith, and failure to perform under contract.” (Opp., p. 5, ll. 16-17.)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, “ ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ ” [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063.)

“When moving to strike a cause of action under the anti-SLAPP statute, a defendant that satisfies its initial burden of demonstrating the targeted action is one arising from protected activity faces no additional requirement of proving the plaintiff’s subjective intent. [Citation.] Nor need a moving defendant demonstrate that the action actually has had a chilling effect on the exercise of such rights. [Citation.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “ ‘triggered’ ” by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. [Citations.]” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

“In deciding whether the initial “ ‘arising from’ ” requirement is met, a court considers “ ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (§ 425.16, subd. (b).)” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

“ ‘The constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.’ ” [Citation.] Just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], we hold that such statements are equally entitled to the benefits of section 425.16. [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.)

Some of which is set forth above, Garcia’s allegations against Beaumont are:

“Defendant, JEFFREY A. BEAUMONT, A PROFESSIONAL CORPORATION (hereinafter “ ‘Beaumont Tashjian’ ”) is and was at all relevant times herein a law firm doing business as Beaumont Tashjian.” (Compl., ¶ 5.)

“Despite the fact that the CC&Rs require that the monthly and special assessments be the same for all units or one-third, the Association, the Narys, and Beaumont Tashjian wrongfully demanded that Garcia pay one-half of the Special Assessment the Narys passed on or about September 18, 2024.” (Compl., ¶ 14.)

“This $100,000 was merely to pay for estimated costs (and Garcia has every reason to assume these costs will only increase) of the following, as explained by Beaumont Tashjian via letter:

“1) Planner - Sepps - $10,000 estimate.

“2) County of Santa Barbara - $10,000 (Upcoming meeting to confirm)

“3) Surveyor – Wenzel - $10,000

“4) Civil Engineer – $10,000 (Sepps will assist in obtaining bid)

“5) Construction of Wall - $38,000 Majid Masonry quote $31,940 in 11/2022

“6) Public Works Design Exception - $1,500 Gates in right of way

“7) Legal - $5,000 Beaumont Tashjian (BT) quote 6-18-24

“8) Legal - $6,300 CC&Rs & Bylaw Restatement of BT Quote 6-21-24

“9) Contingency - $9,200 - 10 percent of total

“Total = $100,000” (Compl., ¶ 28.)

“The Narys, by and through their attorneys at Beaumont Tashjian, demanded that Garcia pay one-half (1/2) of the Special Assessment. This is not consistent with the CC&Rs, which requires each unit to contribute one-third (1/3).” (Compl., ¶ 29.)

“The $100,000 Special Assessment is also not consistent with the Settlement Agreement. The Settlement Agreement calls for the costs for the revised CC&Rs to be ‘split in equal one-third shares.’ But Garcia has been made to pay one-half (1/2). It is relevant that Beaumont Tashjian not only drafted the Settlement Agreement and advised the Association as to the Special Assessment, but it is also going to be drafting the revised CC&Rs.” (Compl., ¶ 30.)

“The Settlement Agreement calls for the costs of map modification and revised CC&Rs to “ ‘. . . become due and payable in the same manner in which assessments are to be paid to the Association pursuant to the CC&Rs.’ ” Although it is ambiguous, and Garcia objects to this interpretation, Beaumont Tashjian apparently believes that “ ‘due and payable in the same manner in which assessment are to be paid’ ” includes enforcement of the payment of Special Assessments by way of lien and foreclosure.” (Compl., ¶ 31.)

“The Settlement Agreement does not permit the costs for the privacy wall to become due and payable in the same manner in which assessments are to be paid. That paragraph of the Settlement Agreement does not contain any language permitting the costs for building the privacy wall to be paid via Special Assessment. Therefore, if the Narys and Beaumont Tashjian want the costs of the privacy wall to be paid via a Special Assessment, it must do so according [to] the CC&Rs (and the Settlement Agreement that requires Garcia to pay his share of future assessments), which requires one-third shares. There are no grounds for Garcia to pay one-half of the costs for the privacy wall via Special Assessment.” (Compl., ¶ 32.)

“In March of 2025, Garcia was approved for a refinance loan on his unit and during escrow for this loan, Beaumont Tashjian intervened and told the escrow officer that Garcia had failed to pay the $100,000 Special Assessment. Beaumont Tashjian caused an Assessment Lien to be recorded against the property preventing any refinancing to occur. This Assessment Lien was for Garcia’s half of the $100,000 special Assessment and “Collection Costs” incurred by Beaumont Tashjian of $3,860. These collections costs are so excessive and unreasonable that they give rise to an inference of intentional oppression and malice . . ..” (Compl., ¶ 34.)

“On April 28, 2025, the Narys and Beaumont Tashjian issued a meeting notice to vote on judicial foreclosure of the $100,000 Special Assessment Lien. The Narys and Beaumont Tashjian were prepared to foreclose and sell Ga[r]cia’s home to force him to pay their improper assessment lien.” (Compl., ¶ 35.)

“On May 5, 2025, (the day of the meeting to vote on foreclosure) Beaumont Tashjian was informed that Garcia would pay the amounts demanded on the assessment lien, but only under protest (as the law provides at Civ. Code §5730). In addition, it was demanded what Garcia could do to ‘ “. . . prevent another $100,000 assessment, today, tomorrow, or any other time of the Narys choosing?” ’ Even though his payment was wired that day, Beaumont Tashjian ignored Garcia’s plea to be protected from a future Special Assessment.” (Compl., ¶ 36.)

“Without judicial intervention, there is no way for Garcia to protect himself from having to pay for the legal costs of the Association in any litigation or dispute between the parties. As it is, Beaumont Tashjian sends an attorney to every single board meeting which is wildly excessive and unnecessarily costly.” (Compl., ¶ 38.)

“Garcia, as a member of the Association under the Corporations Code, contends that the Association should pursue legal action against the Narys, Beaumont Tashjian and Vanguard for negligence. The Narys were negligent as the directors in relation to performing the Association’s duties under the Settlement Agreement. Beaumont Tashjian was negligent in providing (or failing to provide) legal advice relating to the Association’s duties in having the CC&Rs revised, the map modification, the privacy wall built, and the $100,000 Special Assessment. Vanguard was negligent in providing planning and consulting services to the Association.” (Compl., ¶ 40, italics added.)

“Beaumont Tashjian is well aware of the Narys conduct and malign intentions, and yet have conspired with the Narys to act in bad faith and abusive behavior against Garcia.” (Compl., ¶ 42.)

“Beaumont Tashjian is the attorney for BLCOA, and on information and belief, has a written contract with BLCOA to perform legal services (hereinafter “ ‘Legal Services Agreement’ ”).” (Compl., ¶ 51.)

“While Garcia is not a party to the Legal Services Agreement, he is an intended third-party beneficiary because a motivating purpose of the contracting parties (BLCOA and B[e]aumont Tashjian) was to provide counsel to the benefit of BLCOA and its members (including Garcia).” (Compl., ¶ 52.)

“Beaumont Tashjian breached the implied duty of good faith and fair dealing to Garcia by advising or knowingly permitting the Narys on their course of unfair and oppressive actions.” (Compl., ¶ 53.)

“Beaumont Tashjian’s actions are a substantial factor in causing all the harm the Narys have perpetrated on Garcia.” (Compl., ¶ 54.)

“Garcia’s claim against the Beaumont Tashjian for the Breach of the Implied Covenant of Good Faith and Fair Dealing (as to the Legal Services Agreement) sounds in tort because of the independent duty (independent of its duties under the Legal Services Agreement) to avoid professional negligence, which harmed Garcia and BLCOA . . ..” (Compl., ¶ 56.)

“Garcia demanded of Beaumont Tashjian, as to what he could do to ‘ “. . . prevent another $100,000 assessment, today, tomorrow, or any other time of the Narys choosing?” ’ Beaumont Tashjian ignored Garcia’s plea to be protected from a future special assessment, and all his other requests and concerns.” (Compl., ¶ 79.)

“Garcia has provided sufficient notice alleging negligence against the Narys, Beaumont Tashjian and Vanguard. Beaumont Tashjian, on its own behalf and on behalf of the Narys and BLCOA, responded with a seven (7) page letter detailing, among other things, that there neither any wrongdoing by BLCOA or the Narys nor were there any ‘ “negligently rendered services” ’ by Vanguard.” (Compl., ¶ 80.)

“As alleged herein, Garcia request that BLCOA sue Professional Negligence claims against both Beaumont Tashjian and Vanguard. Garcia request that BLCOA sue the Narys for Breach of Fiduciary Duty and enforcement of the CC&Rs.” (Compl., ¶ 82.)

“Garcia requests that he be appointed as the sole director BCLOA for the pendency of this litigation in order to faithfully, and in the best interest of BCLOA, pursue these actions against Beaumont Tashjian, Vanguard, and the Narys.” (Compl., ¶ 85.)

“Despite the fact that the CC&Rs require that the monthly and special assessments be the same for all units or one-third, the Association, the Narys, and Beaumont Tashjian wrongfully demanded that Garcia pay one-half of the Special Assessment the Narys passed on or about September 18, 2024.” (Compl., ¶ 96.)

“Beaumont Tashjian served as the attorney for BLCOA.” (Compl., ¶ 100.)

“Beaumont Tashjian owed BLCOA the duty to act as an honest and competent attorney in advising the Board of Directors, drafting legal documents and correspondence, and communicating with members of BLCOA.” (Compl., ¶ 101.)

“Beaumont Tashjian owed Garcia the duty to avoid harming him by way of their negligent advice and conduct. Beaumont Tashjian had full knowledge that their negligent conduct could harm Garcia.” (Compl., ¶ 102.)

“Beaumont Tashjian advice to BLCOA was negligent as it pertained to completing the privacy wall and obtaining the map modification. Despite drafting the Settlement Agreement wherein BLCOA’s attorneys (Beaumont Tashjian) were required to promptly revised the CC&Rs (Beaumont Tashjian should have know[n] the original CC&Rs are archaic and poorly drafted), Beaumont Tashjian has yet to draft revised CC&Rs.” (Compl., ¶ 103.)

“Beaumont Tashjian advice to BLCOA to levy the $100,000 Special Assessment, interfere with Garcia’s loan approval, and threaten foreclosure was negligent because each of these actions was against the law, the CC&Rs, and the Settlement Agreement.” (Compl., ¶ 104.)

“To the extent that Beaumont Tashjian advised BLCOA to breach the Settlement Agreement, the CC&Rs, or violate California law, that advice was negligent.” (Compl., ¶ 105.)

“To the extent that Beaumont Tashjian failed to advise[] against BLCOA to breach[] the Settlement Agreement, the CC&Rs, or failing to follow California law, that failure to advise was negligent.” (Compl., ¶ 106.)

“Beaumont Tashjian was aware of the Narys breach of the implied covenant of good faith as it pertains to the Settlement Agreement, the wrongful assessment to be imposed, threats to foreclose on the assessment lien.” (Compl., ¶ 124.)

“Beaumont Tashjian, through its advice or lack thereof, agreed and acted in concert with the Narys and intended the violation of the implied covenant of good faith as it pertains to the Settlement Agreement, the wrongful assessment to be imposed, threats to foreclose on the assessment lien.” (Compl., ¶ 125.)

“Beaumont Tashjian had an independent duty to avoid harming Garcia by way of professional negligence (misinterpreting the Settlement Agreement, negligently advising the privacy wall project and negligently advising the imposition of the assessment, lien and threats of foreclosure) and gained by way of increasing their own fees at Garcia’s expense.” (Compl., ¶ 126.)

“Beaumont Tashjian’s acts in advising oppressive conduct, breaches of good faith, and negligent advice go beyond the performance of any professional duty and involve a conspiracy to violate a legal duty in furtherance of Beaumont Tashjian’s financial gain, by way of incurring additional legal fees that Garcia would be indirectly responsible for.” (Compl., ¶ 127.)

Reviewing the above allegations, as well as the complaint as a whole, all of the allegations against Beaumont arise from Beaumont’s protected activity of the right to petition. There are no actions alleged against Beaumont that do not directly arise from Beaumont’s representation of BLCOA. All the actions alleged were either directly arising from litigation in the prior case or in preparation of further judicial proceedings such as judicial foreclosure.

Beaumont has met its burden of showing that the challenged causes of action arise from protected activity. As such, and as noted above, the burden now shifts to Garcia to establish that he has a probability of prevailing at the time of trial.

2. Second Prong – Probability of Prevailing on the Merits

The causes of action, and allegations contained therein, sound of professional negligence alleged by Garcia against Beaumont. There is no dispute that Garcia is not a party to the legal services agreement between Beaumont and BLCOA. (Compl., ¶¶ 51, 52.) The question is whether Garcia is a third-party beneficiary, to the legal services contract with Beaumont, or otherwise has standing to bring a professional negligence claim against Beaumont. If Garcia is unable to establish standing, he is unable to establish that there is even a minimal probability of prevailing on the merits.

“Although the lawyer’s duty typically runs only to the client because that duty arises from the privity of contract that forms the lawyer-client relationship [citations], a lawyer can sometimes owe a duty to third parties who are the intended beneficiaries of the lawyer’s legal work for the client, such as when the lawyer is retained by the client to draft a will, a testamentary trust, or an inter vivos trust or gift. [Citations.]” (Gordon v. Ervin Cohen & Jessup LLP (2023) 88 Cal.App.5th 543, 554–555.)

“[A] nonclient third party can maintain a malpractice action only if there is clear, certain and undisputed evidence of the client’s intent to benefit the third party, or to benefit the third party in the way he claims . . ..” (Gordon v. Ervin Cohen & Jessup LLP, supra, 88 Cal.App.5th at p. 564.) (Note: While Garcia’s claims sound in professional negligence rather than malpractice, and the scope and application of the two differ, the concepts are closely related and the above citation is helpful in describing an attorney’s duty, or lack thereof, to a third party.)

“In order to show a duty was owed to a third party beneficiary of a legal services agreement the third party must show that “ ‘that was the intention of the purchaser of the legal services - the party in privity,’ ” and that “ ‘imposition of the duty carries out the prime purpose of the contract for services.’ ” [Citation.]” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 832.) “This rule governs the analysis, even if the attorney knows that third parties will be affected by his representation of his client. Without more, such knowledge is not sufficient to create a duty of care. [Citation.]” (Zenith Ins. Co. v. O’Connor (2007) 148 Cal.App.4th 998, 1008.)

The sole case relied on by Garcia, for the proposition that he is an intended third party beneficiary, is Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817. However, Garcia cites no language from that case, and the case merely asserts what the above cited cases assert; namely: When considering whether a third party may bring a breach of contract action, the court not only considers “(1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties. All three elements must be satisfied to permit the third party action to go forward.” (Id. at p. 830.)

No evidence exists that Garcia is an intended third party beneficiary of the legal services agreement between Beaumont and BLCOA. Garcia has not met his burden of establishing that he is a third party beneficiary. All of the cases cited by the parties, and reviewed by the court, show that Garcia is not an intended third party beneficiary of the legal services agreement between Beaumont and BLCOA.

Garcia also argues that he falls under an exception to the rule against a nonclient bringing a professional negligence claim against an attorney. In support, he cites three cases, that are completely distinguishable from the present case, and he fails to explain how those cases illustrate an exception to the general rule in the present case. The court has read those cases and fails to see how they apply to the present case. Garcia has not met his burden of showing the existence of an exception to the rule against a nonclient bringing a professional negligence claim against an attorney, as it would apply to the present case.

Garcia’s final argument is that his conspiracy cause of action is not subject to an anti-SLAPP motion because it alleges an independent legal duty and that Beaumont’s actions involve a conspiracy to violate a duty for financial gain. This argument fails as well.

“(a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed.

“(b) Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. The defense shall be raised by the attorney charged with civil conspiracy upon that attorney’s first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. Failure to timely raise the defense shall constitute a waiver thereof.

“(c) This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.” (Civ. Code, § 1714.10, subds. (a)-(c).)

“The purpose of section 1714.10 is to discourage frivolous claims that an attorney conspired with his or her client to harm another. Therefore, rather than requiring the attorney to defeat the claim by showing it is legally meritless, the plaintiff must make a prima facie showing before being allowed to assert the claim. [Citation.]” (Klotz v. Milbank, Tweed, Hadley & McCloy (2015) 238 Cal.App.4th 1339, 1350.)

There is no dispute that Garcia did not comply with the prefiling requirements of section 1714.10 prior to asserting his conspiracy cause of action. However, Garcia argues that he is exempt under subdivision (c).

First, and as explained above, Beaumont does not owe an independent legal duty to plaintiff. Second, the allegations of the complaint, set forth above, do not show any acts that go beyond the performance of a professional duty in Beaumont’s representation of BLCOA. The exception does not apply, and Garcia was required to comply with the prefiling requirement of Civil Code section 1714.10, subdivision (a). Further, Garcia’s allegations and arguments, both in the complaint and in his opposition to the present motion, are conclusory and fail to establish any probability of Garcia prevailing on the merits of the claim.

There is no contractual privity between Garcia and Beaumont with respect to the legal services agreement, Garcia is not an intended third-party beneficiary of the legal services agreement, and there is no independent action alleged that falls outside the scope of Beaumont’s representation of BLCOA.

Garcia has not met his burden of demonstrating even a slight probability of prevailing on any of his three causes of action against Beaumont.

The special motion to strike will be granted. Any claims for fees under the Anti-SLAPP statute shall be decided by separate noticed motion, if any.

            Demurrers and Motions to Strike

The demurrer and motion to strike filed by Beaumont will be taken off-calendar as moot.

On the court’s own motion, the demurrer and the motion to strike filed by BLCOA and the Narys will be continued.