Jespersen v. Zubiate-Beauchamp

• Decision Date: 18 December 2003
• Docket Number: No. B163416.,B163416.
• Citation: 7 Cal.Rptr.3d 715,114 Cal.App.4th 624
• Court: California Court of Appeals Court of Appeals
• Parties: Roger Leon JESPERSEN, et al., Plaintiffs, Respondents and Cross-Appellants, v. Karen E. ZUBIATE-BEAUCHAMP, et al., Defendants, Appellants and Cross-Respondents.

7 Cal.Rptr.3d 715

114 Cal.App.4th 624

Roger Leon JESPERSEN, et al., Plaintiffs, Respondents and Cross-Appellants, v. Karen E. ZUBIATE-BEAUCHAMP, et al., Defendants, Appellants and Cross-Respondents.

No. B163416.

Court of Appeal, Second District, Division 4.

December 18, 2003.

Review Denied April 14, 2004.

Parcells & Associates and Dayton B. Parcells III, Parcells, for Plaintiffs, Respondents and Cross-Appellants Roger Leon Jespersen and Rosemary Jespersen.

Berman, Berman & Berman, Los Angeles, William M. Aitken and James W. McCord for Defendant and Appellant Karen E. Zubiate-Beauchamp.

Daniel J. Doonan, Covina, and D. Scott Doonan for Defendants, Appellants and

Cross-Respondents Daniel J. Doonan, Suzanne K. Shapiro and the Law Offices of Daniel J. Doonan, Inc.

HASTINGS, J.

Appellants, attorneys sued for litigation related malpractice, filed a special motion to strike pursuant to Code of Civil Procedure section 425.16. The trial court denied the motion concluding that the malpractice action does not qualify for treatment under section 425.16, the so-called anti-SLAPP statute.¹ We conclude the trial court did not err. The alleged malpractice did not arise out of the attorneys' First Amendment right to petition. Rather the malpractice alleged is appellants' negligent failure to protect their clients rights in the underlying action.

BACKGROUND

Respondents and cross-appellants, Roger Leon Jespersen and others, filed this action on May 2, 2002, against appellants and cross-respondents, attorneys Karen Zubiate-Beauchamp, Daniel Doonan, Suzanne Shapiro, and the Law Offices of Daniel J. Doonan.² The complaint alleges that respondents retained appellants to represent them in a civil lawsuit in which the respondents had been named as defendants, and that appellants did so negligently resulting in a court order requiring respondents to provide verified responses to discovery requests without objecting to them.³ It is further alleged that appellants' negligence resulted in a similar order six weeks later, along with sanctions, the denial of a motion for reconsideration filed by appellants on respondents' behalf, and finally, an order striking respondents' answer and cross-complaint, and entering their default.

Appellants Doonan and Shapiro brought a special motion to strike (a "SLAPP" motion⁴), and appellant Zubiate-Beauchamp joined in the motion. Respondents moved for sanctions on the ground that the motion was frivolous. On October 29, 2002, the trial court issued a written decision denying appellants' motion to strike and respondents' request for sanctions. Appellants filed timely notices of appeal, and respondents filed a timely notice of cross-appeal.

DISCUSSION

1. The SLAPP Motion

Appellants contend that the trial court erred in denying their SLAPP motions.

"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 or 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." (Code Civ. Proc., § 425.16, subd. (b)(1).)⁵

On appeal from an order granting or denying a motion pursuant to section 425.16, the appellate court engages in a two-step process, determining first, whether the defendant made a threshold showing that the challenged cause of action is one arising out of acts done in furtherance of the defendant's exercise of a right to petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute; and if so, whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685; § 425.16, subds. (b)(1), (b)(2).)

We independently determine whether a cause of action is based upon activity protected under the statute. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456, 125 Cal.Rptr.2d 534.) In doing so, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

Doonan and Shapiro contend that legal representation is constitutionally protected conduct within the purview of subdivision (e) of Code of Civil Procedure section 425.16, and that a special motion to strike may be brought by an attorney who has been named in a malpractice action. Zubiate-Beauchamp contends that in this case, the protected conduct or speech was the filing of attorney declarations in support of a motion brought pursuant to Code of Civil Procedure section 473.

Appellants base their contentions on section 425.16, subdivision (e), which provides that an "`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 ... judicial proceeding ...; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a ... judicial body ...; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue."

Appellants point out that litigation is a public issue, and filing a lawsuit is conduct in furtherance of the exercise constitutional right of petition. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 1122, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Therefore, they also point out, a malicious prosecution action may be the subject of a special motion to strike under section 425.16. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, 74 P.3d 737.) Appellants also rely upon Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 103 Cal.Rptr.2d 174, where an attorney's negotiation on behalf of her clients was held to have been an act in furtherance of protected speech or petition, justifying a special motion to strike a defamation complaint. (See id. at p. 1418, 103 Cal.Rptr.2d 174.)

Thus, appellants have shown, and we agree, that an attorney who has been made a defendant in a lawsuit based upon a written or oral statement he or she made on behalf clients in a judicial proceeding or in connection with an issue under review by a court, may have standing to bring a SLAPP motion. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1116, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

It does not follow, however, that a legal malpractice action may be subject to a SLAPP motion merely because it shares some similarities with a malicious prosecution action and involves attorneys and court proceedings. "[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77, 124 Cal.Rptr.2d 519, 52 P.3d 695.) And a moving defendant's burden to show a "`cause of action ... arising from'" is not met simply by showing that the label of the lawsuit appears to involve the rights of free speech or petition; he or she must demonstrate that the substance of the plaintiff's cause of action was an act in furtherance of the right of petition or free speech. (Id. at p. 78, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

Respondents' malpractice action is not based upon appellants' having filed an answer or cross-complaint in the action in which appellants represented respondents. It is not, as appellants contend, based upon appellants' having filed declarations, motions, or other papers in that action, or upon appellants' appearance on discovery or other motions. Appellants' characterization of such activity as the basis for respondents' cause of action depends solely upon their narrow construction of the complaint, while ignoring other facts in the record that show what conduct underlies respondents' cause of action.

Granted, the complaint is not a model pleading. It describes appellants' negligent conduct by improper inferential pleading that could subject it to a special demurrer and amendment. (See 4 Witkin, Cal. Proc. (4th ed. 1997) Pleading, § 356, p. 456.) For example, the allegation that the court ordered responses to discovery requests without objections merely implies that objections had been waived by appellants' failure to serve timely responses. (See Code Civ. Proc., § 2031, subd. (l).) And the allegation that appellants' negligence resulted in a similar order six weeks later, along with sanctions, implies that appellants again failed to supply responses without objections.

We need not, however, wear the blinders that appellants have fashioned for us. To determine whether appellants' burden has been met, we consider not only the pleadings, but also" `supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

The parties' declarations and exhibits reveal the facts that are implied in the complaint. In opposition to appellants' SLAPP motion, respondents submitted excerpts from the discovery proceedings in the underlying action that gave rise to respondents' claims of malpractice here, including appellants' opposition to a motion for terminating sanctions, submitted on behalf of respondents, and minute orders relevant to those proceedings. In that opposition, appellants represented to the court that after opposing counsel had served them with a request for production of documents, they sent opposing counsel a letter requesting an extension of...