Kolar v. Donahue, McIntosh & Hammerton

• Decision Date: 21 December 2006
• Docket Number: No. G036433.,G036433.
• Citation: 52 Cal.Rptr.3d 712,145 Cal.App.4th 1532
• Court: California Court of Appeals Court of Appeals
• Parties: Judy KOLAR et al., Plaintiffs and Respondents, v. DONAHUE, McINTOSH & HAMMERTON, Defendant and Appellant.

52 Cal.Rptr.3d 712

145 Cal.App.4th 1532

Judy KOLAR et al., Plaintiffs and Respondents, v. DONAHUE, McINTOSH & HAMMERTON, Defendant and Appellant.

No. G036433.

Court of Appeal, Fourth District, Division 3.

December 21, 2006.

Certified for Partial Publication.^*

Law Offices of Timothy J. Donahue and Timothy J. Donahue, Irvine, for Defendant and Appellant.

Shulman Hodges & Bastian, Ronald S. Hodges, Franklin J. Contreras, Jr., and Evan W. Granowitz, Foothill Ranch, for Plaintiffs and Respondents.

OPINION

ARONSON, J.

The law firm of Donahue, McIntosh & Hammerton (Donahue) appeals the trial court's denial of its special motion to strike brought under the anti-SLAPP statute.¹ (Code Civ. Proc, § 425.16; all further statutory references are to this code unless otherwise noted.) Donahue contends the legal malpractice action filed against it arose from an act "in furtherance of [its] right of petition or free speech under the United States or California Constitution in connection with a public issue," and therefore protected under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) He also contends the action is barred by the litigation privilege, and thus subject to a special motion to strike. We disagree with each of these contentions.

As Donahue recognizes, this case presents a "garden variety legal malpractice action." A legal malpractice action alleges the client's attorney failed to competently represent the client's interests. Legal malpractice is not an activity protected under the anti-SLAPP statute. That the malpractice allegedly occurred in the course of petitioning activity does not mean the claim arose from the activity itself. Because Kolar's malpractice action does not arise from an activity protected under the anti-SLAPP statute, Donahue failed to meet its initial burden. We also conclude the litigation privilege does not bar legal malpractice claims based on a litigator's failure to provide competent representation in a prior lawsuit. In the unpublished portion of this opinion, we reject a number of other contentions Donahue raises. Accordingly, we affirm the trial court's order.²

I Factual and Procedural Background

In March 2002, plaintiffs Judy and Jan Kolar, and the Kolar Family Trust (Kolars) retained Donahue to provide legal services in connection with a dispute arising from property improvements constructed by plaintiffs' neighbors. Specifically, plaintiffs alleged the neighbors built a deck and staircase without receiving plan approval from an architectural committee as required by the subdivision's covenants, conditions, and restrictions (CC & R's). Donahue filed a complaint on behalf of the Kolars against plaintiffs' neighbors, and maintenance and management companies employed by their homeowners association (homeowner litigation). The Kolars lost the homeowner litigation, and the court entered judgments against them that included attorney fees totaling $957,824.

The Kolars filed the present malpractice suit, alleging Donahue "failed to exercise reasonable care and skill" while representing them in the homeowner litigation. Donahue filed a special motion to strike under the anti-SLAPP statute, which the trial court denied. Donahue now appeals.

II Standard of Review

An order denying an anti-SLAPP special motion to strike is appealable under sections 425.16, subdivision (j), and 904.1. We review the trial court's order de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, 113 Cal.Rptr.2d 625.)

III Discussion

A. The Kolars' Malpractice Action Does Not "Arise From" Petitioning Activity Protected Under the Anti-SLAPP Statute

The anti-SLAPP statute provides: "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." (§ 425.16, subd. (b)(1).)

"To prevail on an anti-SLAPP motion, the movant must first make `"a threshold showing that the challenged cause of action" arises from an act in furtherance of the right of petition or free speech in connection with a public issue.'" (Integrated Healthcare Holdings, Inc. v. Fitzgibhons (2006) 140 Cal.App.4th 515, 522, 44 Cal.Rptr.3d 517.) "Once the movant meets this burden, the plaintiff must demonstrate `"a probability of prevailing on the claim."' [Citation.] If the plaintiff cannot meet this burden, the trial court must strike the cause of action." (Ibid.)

Section 425.16, subdivision (e), clarifies: "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; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (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 or an issue of public interest."

Donahue contends the Kolars' malpractice action arises from Donahue's petitioning activities in the homeowner litigation and therefore is protected under section 425.16, subdivision (e). We disagree.

"It is beyond dispute the filing of a complaint is an exercise of the constitutional right of petition and falls under section 425.16." (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125, 41 Cal. Rptr.3d 1.) Thus, malicious prosecution actions are subject to anti-SLAPP scrutiny because "[b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.]" (Jarrow Formulas, Inc. v. La-Marche (2003) 31 Cal.4th 728, 735, 3 Cal. Rptr.3d 636, 74 P.3d 737.) The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908, 120 Cal.Rptr.2d 576.) Indeed, courts have adopted "a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16." (Id. at p. 908, 120 Cal. Rptr.2d 576.)

Although a party's litigation-related activities constitute "act[s] in furtherance of a person's right of petition or free speech," it does not follow that any claims associated with those activities are subject to the anti-SLAPP statute. To qualify for anti-SLAPP protection, the moving party must demonstrate the claim "arises from" those activities. A claim "arises from" an act when the act "`"forms the basis for the plaintiffs cause of action" ....'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66, 124 Cal.Rptr.2d 507, 52 P.3d 685.) "[T]he `arising from' requirement is not always easily met." (Ibid.) A cause of action may be "triggered by" or associated with a protected act, but it does not necessarily mean the cause of action arises from that act. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77-78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (Cashman).) As our Supreme Court noted: "California courts rightly have rejected the notion `that a lawsuit is adequately shown to be one "arising from" an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.' [Citation.]" (Id. at p. 77, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

This point was illustrated in San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 22 Cal. Rptr.3d 724. There, a local fire protection district filed suit against a county retirement system and its board challenging defendants' decision to increase the amount of employee retirement fund contributions. In response, the defendants filed an anti-SLAPP motion, which the trial court denied. Affirming, the Court of Appeal determined that even if the defendants' discussions and voting on the increase constituted activities protected under the anti-SLAPP statute, the plaintiffs' cause of action arose from the board's collective action in increasing the contribution. The court explained: "`The [anti-SLAPP] statute's definitional focus is ... [whether] the defendant's activity giving rise to his or her asserted liability ... constitutes protected speech or petitioning. [Citation.]' [Citation.] Thus, the fact that a complaint alleges that a public entity's action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the measure itself is not an exercise of free speech or petition. Acts of governance mandated by law, without more, are not exercises of free speech or petition. `[T]he defendant's act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]' [Citation.]" (Id. at p. 354, 22 Cal.Rptr.3d 724, original italics.)

Similarly, in Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 20 Cal.Rptr.3d 621, the court determined the anti-SLAPP statute did not apply to a former client's suit against a law firm for breach of loyalty. There, the...