Pech v. Doniger

• Decision Date: 18 February 2022
• Docket Number: B309781
• Citation: 290 Cal.Rptr.3d 471,75 Cal.App.5th 443
• Parties: Richard PECH, Plaintiff and Appellant, v. Stephen M. DONIGER, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

75 Cal.App.5th 443

290 Cal.Rptr.3d 471

Richard PECH, Plaintiff and Appellant,

v.Stephen M. DONIGER, et al., Defendants and Respondents.

B309781

Court of Appeal, Second District, Division 5, California.

Filed February 18, 2022

Richard Pech, in pro. per., for Plaintiff and Appellant.

Blakely Law Group and Brent H. Blakely for Defendants and Respondents.

MOOR, J.

In a lawsuit asserting multiple claims against his former clients and their new attorneys, attorney Richard Pech alleged that the new attorneys interfered with his fee agreement by advising the clients not to file a complaint that Pech drafted. The new attorneys filed a motion to strike all of Pech's claims against them under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).¹ The trial court granted the motion in part, striking the claim for interference with contract. On appeal, Pech contends the anti-SLAPP motion should have been denied, because the new attorneys failed to identify specific allegations of protected conduct to be stricken. He also contends the new attorneys’ interference with the fee agreement was not a protected activity under the anti-SLAPP statute, or if the conduct was protected, he established a probability of prevailing on the merits.

We conclude the new attorneys identified the conduct supporting the claim for interference with contract that they asserted was protected under the anti-SLAPP statute. In this case, advice about proposed litigation against a third party, including the clients’ rights and obligations under a fee agreement with another attorney, was protected activity under the anti-SLAPP statute. Pech did not demonstrate a probability of prevailing on the merits, because his claim is barred by the litigation privilege contained in Civil Code section 47, subdivision (b). Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Allegations of the Complaint

On May 15, 2020, Pech, representing himself, filed an action against his former clients Afshin Moghavem (Moghavem), Afshin Mogahavem, Inc. (AMI), and Prodigy Brands, LLC (collectively referred to as "the clients") for fraudulent concealment, false promise, interference with contract, breach of contract, and quantum meruit. He also named Doe defendants who conspired with or aided and abetted the clients in carrying out the acts supporting liability described below.

Moghavem contacted Pech in January 2019, about bringing a legal action against Dollar Shave Club, Inc., Michael Dubin, and Unilever (collectively referred to as "Dollar Shave"). On May 28, 2019, Pech entered into a written fee agreement with the clients providing for payment of a contingency fee between 15 and 45 percent, depending on the timing of their recovery. Pech was entitled to 15 percent of any recovery obtained within 60 days after the complaint was filed, up to $200,000.

Pech conducted meetings with the clients, reviewed hundreds of documents, engaged in substantial research, and drafted a complaint. On June 14, 2019, Pech provided the clients with a revised version of the complaint, which he considered sufficient to file. A representative for the clients replied with comments and concerns. Pech provided another revised draft on June 27, 2019, stating that he would file the complaint that day. The clients’ representative immediately instructed Pech not to file the complaint until Moghavem authorized him to do so in writing.

Pech suspected the clients were negotiating compensation directly with Dollar Shave. He repeatedly requested that Moghavem authorize him to file the complaint. In a telephone conversation, Moghavem said there was "a disconnect" in the direction of the case and he did not want to file the complaint. Moghavem denied that he was negotiating with Dollar Shave and declined to explain how he would obtain the compensation owed. He asked Pech to send a bill for his services. On July 3, 2019, Moghavem sent an email to Pech stating that the contingency fee agreement was terminated immediately. Pech believed the clients had negotiated a settlement with Dollar Shave for payment, but prevented Pech from filing the proposed complaint on June 27, 2019, which would have entitled him to 15 percent of the recovery, up to $200,000.

The cause of action for interference with contract alleged that the clients and Doe defendants had actual knowledge of the written fee agreement. The Doe defendants, in conjunction with the clients, prevented performance of the fee agreement by instructing Pech not to file the complaint that would have vested the contingency fee. The conduct of the Doe defendants, in conjunction with the clients, was intended to interfere with performance of the fee agreement. As a result of the clients’ conduct, Pech suffered damages of $200,000, plus interest, and the malicious and oppressive conduct justified an award of punitive damages.

In June 2020, Pech amended the complaint to substitute the clients’ new attorneys, defendants and respondents Stephen M. Doniger and Scott Alan Burroughs, in place of Doe defendants.

Doniger and Burroughs's Anti-SLAPP Motion and Supporting Evidence

On August 13, 2020, Doniger and Burroughs filed an anti-SLAPP motion seeking to strike all of the claims in the complaint. They argued that Pech's causes of action arose from activities protected under the anti-SLAPP statute. Certain claims, including interference with contract, were based on their role in Moghavem's decisions not to file the complaint and to fire Pech. They argued that the clients’ right to petition included the basic act of filing litigation. The activities were protected based on the clients’ right to control the litigation and use counsel of their choice. They also argued their communications with the clients and with Dollar Shave were protected speech and petitioning activity in anticipation of litigation, which was under serious consideration at the time of the communications. Such acts were equally protected by the litigation privilege of Civil Code section 47, subdivision (b), and the anti-SLAPP statute. Pech had not alleged that Doniger or Burroughs did anything outside the scope of routine legal services.

Doniger and Burroughs also argued that Pech could not establish a probability of prevailing. His claims were barred by the litigation privilege of Civil Code section 47, which applies to any communication by participants in a judicial proceeding that has some logical relation to the action to achieve the objects of the litigation. Any communications among Doniger, Burroughs, and the clients or Dollar Shave would have been with regard to the clients’ legal dispute with Dollar Shave and in connection with the lawsuit that was eventually filed. The clients had not surreptitiously negotiated a settlement with Dollar Shave.

Doniger's declaration in support of the anti-SLAPP motion stated AMI retained his firm with regard to claims against Dollar Shave, which were the subject of a pending lawsuit. At no point prior to filing the lawsuit against Dollar Shave did Doniger engage in any settlement negotiations, and no settlement had been reached. Doniger's partner Burroughs was listed as counsel of record for the pending litigation, but he had no significant involvement in the action and no interaction with Dollar Shave.

Opposition and Supporting Evidence

Pech filed an opposition to the anti-SLAPP motion on September 21, 2020, supported by his declaration. In his declaration, Pech described a telephone conversation in which Moghavem said the complaint that Pech drafted placed him in "jeopardy" and was "very aggressive." Moghavem said he wanted to "evaluate the matter" and "did not want this risk at this time." Moghavem denied negotiating with Dollar Shave and expressed concern about suing two of the defendants named in the complaint. He added that there was a "disconnect between us about what [he] wanted to do." Moghavem said three times that he would pay for the time spent by Pech on the matter. Moghavem also said that he had the fee agreement "reviewed by other lawyers" and he "knew [his] rights." A representative for the clients requested Pech's bills in order to provide payment. Pech admitted that when he filed the current complaint against the clients, he was not aware they had filed a lawsuit against Dollar Shave; Pech intended to delete the complaint's allegations about the clients having settled with Dollar Shave. Pech added, however, that the metadata for the complaint filed by Doniger and Burroughs showed it was based on Pech's draft.

In Pech's opposition, he conceded that the only cause of action he had intended to allege against Doniger and Burroughs was interference with contract; he had filed a request for dismissal of the other causes of action against them. Pech argued that attorneys can be held liable for interfering with another attorney's fee agreement. A third party's act inducing a breach of a fee agreement is not protected by a client's right to terminate the agreement. Pech's claim was not based on Doniger and Burroughs's representation of the clients in the underlying case against Dollar Shave. The gravamen of the cause of action was that Doniger and Burroughs interfered with Pech's fee agreement, as reflected in the allegations that the Doe defendants had actual knowledge of the fee agreement, and in conjunction with the clients, prevented performance by instructing Pech not to file the complaint which would have vested Pech's contingency fee. Pech asserted the allegations of the complaint were "augmented" by his declaration stating that Moghavem said he had Pech's fee agreement "reviewed by other lawyers" and "knew [his] rights," and that Doniger and Burroughs only superficially revised the complaint that Pech drafted before filing it as their own work.

Even if the interfering conduct was a protected activity, Pech argued that he had established a probability of prevailing. The elements of the cause of action for interference with contract required him to...